Opinion
E072597
09-19-2019
In re T.A., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. M.C., Defendant and Appellant.
Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Svetlana Kauper, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J271450) OPINION APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed. Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.
In this dependency matter regarding T., the juvenile court terminated parental rights and selected adoption as the permanent plan pursuant to Welfare and Institutions Code section 366.26. Defendant and appellant M.C. (mother) alleges the court erred in denying her section 388 petition requesting reinstatement of reunification services and increased visitation. She further contends the court erred in terminating her parental rights on the grounds she established both the beneficial parental relationship exception (§ 366.26, subd. (c)(1)(B)(i)) and sibling bond relationship exception (§ 366.26, subd. (c)(1)(B)(v)) to adoption. We find no merit to mother's claims and, therefore, affirm the orders.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. PROCEDURAL BACKGROUND AND FACTS
A. Detention Hearing.
On or about June 12, 2017, San Bernardino County Children and Family Services (CFS) received a referral stating the parents of L. (born May 2017) and T. (born Aug. 2014) were being arrested for child endangerment. Upon arrival at the home, the social worker was informed by the arresting deputy sheriff that a neighbor had called the police after finding the children at home with no parent on the property. The parents appeared about 30 minutes after the neighbor had called the police. The parents explained they had a verbal altercation in the morning and they both left the home— leaving the children alone. According to the neighbor, mother would often leave T. "alone in the yard 'all day,'" with food on a table outside for him.
Mother was not home, but father was hiding in the back of the property. Father is not a party to this appeal.
Upon investigating the property, the deputy located two methamphetamine pipes in the children's bedroom, within their reach. Mother denied knowledge of the pipes and any drug use, explaining she had been clean since "'August or September' of 2016." According to the neighbor, mother stated she was going to drown L. because she did not want a special needs child. When questioned about this statement, mother replied, "'I said I was going to throw the baby in the pool, I didn't say drown him.'" The parents were taken to separate detention centers, and the children were placed in separate foster homes.
L., who was born with spina bifida, was transported to Loma Linda University hospital for treatment. He was later placed in a specialized health care home. L. is not a party to this appeal.
Later, father claimed mother's comment was made regarding T., not L. Mother explained T. had been running a high fever the night before.
On June 14, 2017, CFS filed a dependency petition under section 300, subdivisions (b) (failure to protect) and (g) (no provision for support), alleging mother (1) has a problem with substance abuse, which impairs and limits her ability to adequately and appropriately parent, placing the children at risk of abuse or neglect, (2) has a history of engaging in acts of domestic violence with her significant others, (3) has failed to appropriately care for the medical needs of L., and (4) has been arrested and detained on charges of child cruelty for leaving the children with no provisions for their support. Similar allegations were made as to father.
On June 16, 2017, the juvenile court found prima facie evidence to remove the children and ordered supervised visitation.
B. Jurisdiction Disposition Hearing.
In the jurisdiction/disposition report filed June 30, 2017, CFS identified substance abuse, domestic violence, and the failure to care for L.'s special medical needs as the reasons for intervention. Mother denied using methamphetamine after August 2016, and denied owning the drug paraphernalia found in the children's bedroom, claiming it "probably" belonged to father. Father "assumed" the paraphernalia belonged to mother's roommate. As for the domestic violence allegations, 22 service calls had been made from mother's home to law enforcement from July 2015 to June 2017; several of the calls were recorded. According to a May 21, 2017 call, father punched mother and "possibly scratched" T. The call made prior to the parents' arrest on June 12, 2017, indicated the two had been fighting.
Father was on probation for a domestic violence incident and, since July 25, 2014, he was subject to a restraining order for no contact with mother. Both parents were under the impression the order was for "no negative contact" and, thus, father continued to visit mother and the children. Father acknowledged L.'s medical issues and admitted he struggled to accept them. During his argument with mother, she stated she "did not give a fuck about that crippled baby." On the day of the parents' arrest, mother told the neighbor she did not want that "fucking disabled baby" and further told father she was "going to drown" the children "if he didn't take them."
At the jurisdiction hearing on July 7, 2017, mother signed a waiver of rights and plead no contest. The juvenile court amended the petition pursuant to agreement. Finding the allegations to be true, the court continued placement of the children in foster homes and set a disposition hearing. On July 27, the court declared the children dependents of the court, removed them from their parents' custody, and ordered reunification services and visitation. On September 29, the court determined the Indian Child Welfare Act did not apply.
C. Six-month Review Report and Hearing.
In the six-month status review report filed January 18, 2018, CFS recommended reunification services be continued based on the parents' regular visitation and progress toward completing their case plan. While mother had failed to complete an outpatient program and to consistently drug test (she missed 11 out of 15 random tests), she had completed general counseling and was within three sessions of completing her parenting course. According to law enforcement logs, the police continued to respond to service calls about incidents between mother and father. The children were doing well in their separate placements. Although they had not visited each other, the social worker believed it was in their best interest to be placed in close proximity so they could have a relationship with each other growing up.
At the six-month review hearing on January 29, 2018, the juvenile court continued reunification services and supervised visitation (with the possibility of unsupervised, overnight visitation if appropriate), and ordered an immediate referral for an inpatient program for mother.
D. Twelve-month Review Report and Hearing.
In the 12-month status review report filed June 19, 2018, CFS recommended the juvenile court terminate reunification services and set a section 366.26 hearing. According to the social worker, the prospect of the children reunifying with their parents was "not favorable." Neither parent was diligent in addressing their substance abuse issues or submitting to random testing. While they were consistent in visitation, the visits never progressed to unsupervised or overnight. Although the parents argued and fought during visits with T., mother informed the social worker she was pregnant with father's child, she loved him, and she planned to resume her relationship with him.
On July 12, 2018, at the contested 12-month review hearing, the juvenile court terminated reunification services and set a section 366.26 hearing.
E. Sections 388 Petition and 366.26 Hearing.
In the section 366.26 report filed November 5, 2018, CFS recommended termination of parental rights with a permanent plan of adoption. T. remained in the home of the G.'s, with whom he was placed on May 7, 2018. He was described as a healthy four-year-old with no physical concerns. He was a happy child who loved his caregivers. The caregivers worked with L.'s caretaker to continue the sibling bond between T. and L. Mother and father were not consistent in visiting T.
On February 1, 2019, mother filed a section 388 petition seeking to reinstate reunification services and to increase visits with T. only. She stated she "has made substantial progress and has been visiting consistently." Mother claimed the child "is closely bonded" to her and it would be in his best interest to reunify with her. She attached undated certificates of completion for anger management, domestic violence, and parenting courses, along with the certificate of completion of a residential drug program at Saint John of God (Saint John) dated January 17, 2019. A letter from Saint John's program manager indicated mother resided in transitional housing and was approved for a unit that had room for T. Mother offered clean drug tests from October 2018, and January, February, and March 2019. A hearing on the petition was ordered.
In the section 366.26 addendum report filed March 4, 2019, CFS noted mother had given birth to S., who was detained and placed with T. in the G's home. The G.'s wished to adopt T., and they had developed a friendship with L.'s caretakers. According to the social worker, "[b]oth families appear to have a strong commitment to ensuring the children grow up together. [T.] is very young and would benefit from the permanency that adoption will provide him." CFS recommended termination of parental rights and adoption.
On March 5, 2019, CFS filed a response to mother's section 388 petition. The social worker noted, "[mother] has made some progress in her recovery. However, she has been residing in a controlled environment and the staff monitors her. She has not proven that she can reside independently on her own, free from substance abuse." The social worker challenged mother's claim that reinstatement of services was in T.'s best interest, pointing out the child had been placed in a stable home with caregivers who wanted to adopt him. Mother visited T. regularly, and the visits went well, but T. referred to her as "teacher" on several occasions. At a visit in January 2019, mother commented she wanted to keep T., but his siblings could be adopted. Although mother was loving and attentive to T., she had difficulty controlling multiple children at the same time.
On March 7, 2019, the juvenile court granted the request for an evidentiary hearing on mother's section 388 petition. On the same day, the court terminated both mother's and father's parental rights to L. and granted de facto parent status to T.'s caregivers, the G.'s.
Mother submitted on the recommendation. --------
On April 18, 2019, at the hearing on mother's section 388 petition, four witnesses testified: Randall Higgins, the social worker; William Black, the case manager at Saint John; mother; and Mrs. G., T.'s caregiver. Mr. Higgins opined that mother had not benefit from 13 months of reunification services because she failed to resolve the issues that brought her before the court. He believed her success in resolving her substance abuse issues was designed to reunite with T. in order to maintain her relationship with father. Mr. Higgins was concerned mother had not acknowledged the domestic violence in that relationship. He was also concerned mother would not allow T. to visit his siblings, L. and S., since she stated she was happy that L. was with his caregivers and she had not bonded with S. In his opinion, it would be detrimental to T. to not allow visitation with his siblings. Mr. Higgins was aware of mother's participation in Saint John's program, which ended in January 2019, and the High Desert Center's 90-day outpatient program, which she began on February 13, 2019, but was terminated prematurely on March 20, 2019.
Mr. Black confirmed that mother had completed the Saint John's 90-day residential program in January 2019 and transferred to an outpatient program. He stated mother had made considerable progress and was above average in her fight against addiction. Although she had been terminated from transitional living, he observed mother to be focused and committed to moving forward. He was not concerned about her relapsing, as she was continuing in outpatient treatment, testing, and partaking in meetings.
Mother testified she has three children, T., L., and S. T. and L. were removed from her care in June 2017, and S. was removed in December 2018 (shortly after her birth). Mother admitted her past unwillingness to acknowledge the severity of her substance abuse, domestic violence, and toxic relationship with father when the children were removed. She had been using methamphetamine for 23 years, beginning at age 16 and continuing until the "very end" of 2018. Regarding the changed circumstances, mother claimed she was no longer in a relationship with father, and she had addressed her substance abuse issue. Since her discharge from the transitional living program, she was living with a friend and participating in the six-month substance abuse program at the High Desert Center. Her projected date of completion was August 2019.
Mother opposed T.'s adoption because she had cared for him for the first few years of his life. She testified she visited T. and S. every week, and only missed visits when she was unable to obtain transportation, was getting her affairs in order, or was checking into Saint John. She claimed T. was bonded to her and called her "Mom," and he knew her and remembered songs, dances, and things they would say to each other. She requested "time to reunify with [T. and S.]" and objected to T.'s adoption. She denied (1) having any contact with father, (2) T. calling her teacher, and (3) missing 17 visits.
Mrs. G., the caretaker of T. and S., monitored approximately 80 percent of mother's visits. She described mother's interaction with the children as good and happy. She observed T. call mother "teacher." She also observed mother communicate with father via text messages during visitation. Mother asked father for money, and he responded that he would provide her with money if she would come over.
At the close of evidence, the juvenile court agreed mother had shown a substantial change in circumstances, but found she failed to prove it would be in T.'s best interest to reinstate reunification services and increase visitation. The court favored Mrs. G.'s testimony, over mother's, about the nature and quality of her visits. The court denied mother's petition and proceeded to the section 366.26 hearing. Mother's counsel asserted the parent-child relationship exception to termination of parental rights. The court disagreed, finding the bond between T. and mother did not outweigh the benefits of adoption. The court therefore terminated all parental rights to T. and selected adoption as the permanent plan.
II. DISCUSSION
Mother contends the juvenile court abused its discretion in denying her section 388 petition. She further asserts the court erred by refusing to apply either the beneficial parent-child relationship or sibling relationship exception to termination of parental rights. We have considered her claims and conclude none have merit.
A. The Juvenile Court Did Not Abuse Its Discretion in Denying the Section 388 Petition.
Section 388 is a general provision permitting the juvenile court, "upon grounds of change of circumstance or new evidence, . . . to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court." (§ 388, subd. (a).) The statute allows the modification of a prior order only when the petitioner establishes by a preponderance of the evidence that (1) changed circumstances or new evidence exists, and (2) the proposed modification would promote the best interests of the child. (In re L.S. (2014) 230 Cal.App.4th 1183, 1193; In re Y.M. (2012) 207 Cal.App.4th 892, 919-920.) A parent seeking relief under section 388 "must show changed, not changing, circumstances. [Citation.] The change of circumstances or new evidence 'must be of such significant nature that it requires a setting aside or modification of the challenged prior order.'" (In re Mickel O. (2011) 197 Cal.App.4th 586, 615.)
Moreover, "'[i]t is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child.'" (In re S.J. (2008) 167 Cal.App.4th 953, 960.) A parent requesting an order for reunification services after they have been terminated has the burden of proving that the benefit to the child of reinstating services outweighs the benefit the child would derive from the stability of a permanent placement. (In re Angel B. (2002) 97 Cal.App.4th 454, 464.) We review the ruling on a section 388 petition for an abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
Since the juvenile court found substantial change, and mother agrees with the finding, we need only address mother's claim the evidence demonstrated it was in T.'s best interest for her to receive additional services and increased visitation. The court provided mother a full evidentiary hearing to present evidence in support of her petition, yet she primarily focused on her changed circumstances. Regarding T.'s best interest, mother asserted "it would be a nightmare for [T.] to live without her" because he had lived with her for the first three years of his life, he still called her "mother" and "mom," ran to her when he saw her, and remembered songs, dances, and things they would say to each other. However, the evidence also shows that T. had been out of mother's care for almost two years and had thrived in the G.'s home. According to CFS, T. arrived at the G.'s home as a nonverbal, small, and very thin child, "who hid behind the couches, always whimpering and staying away from the adults and other children in the family." Within one year, he was growing at a normal pace and had developed a strong constitution. T. learned to use verbal communication to express his feelings, wants and needs, instead of hiding and crying. T. was bonded to the G. family, they wanted him to be a part of their family, and they wanted him to maintain his sibling relationships with L. and S. Given mother's short-term sobriety and interest in only parenting T., she failed to show the benefit of reinstating reunification services and visitation outweighed the benefit T. would derive from the stability and security of a permanent home, committed to maintaining his sibling relationships. Under these circumstances, the juvenile court did not abuse its discretion in denying mother's section 388 petition.
B. The Juvenile Court Did Not Err in Concluding the Beneficial Parent-child Relationship Exception Did Not Apply.
Mother contends the juvenile court erred by refusing to apply the beneficial parent-child relationship exception to termination of parental rights. We disagree.
The Legislature has designated adoption as the preferred permanent plan when possible. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) If the juvenile court finds a dependent child is likely to be adopted, it must terminate parental rights and select adoption as the permanent plan unless it finds one of several exceptions applies. (§ 366.26, subd. (c)(1); In re L.Y.L., at p. 947.) "[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 beneficial parent-child relationship exception requires the trial court to find "a compelling reason for determining that termination would be detrimental to the child" because the parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) "[T]he 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.) Courts must examine the beneficial parent-child relationship exception on a case-by-case basis and consider the variables affecting the parent-child bond, including "[t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs." (Id. at p. 576.) The parent bears the burden of showing the exception applies. (In re S.B. (2008) 164 Cal.App.4th 289, 297.)
What standard governs appellate review of the beneficial parental relationship exception to adoption is currently under review in the California Supreme Court. (In re Caden C. (2019) 34 Cal.App.5th 87, 106, review granted July 24, 2019, S255839.) Until directed otherwise, we review the factual determinations—whether a parent has maintained regular visitation or whether a beneficial parental relationship exists—for substantial evidence. (In re E.T. (2018) 31 Cal.App.5th 68, 76; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.) We review for abuse of discretion the court's determination on whether the relationship provides a compelling reason for finding termination of parental rights would be detrimental to the child. (Id. at p. 1315.)
The juvenile court found that mother had consistently visited T. and there was a relationship between the two, but concluded that relationship did not outweigh the benefits of adoption. We find no abuse of discretion in the court's decision. There is simply no evidence that severing mother's relationship with T. would be detrimental to him. T. was removed from her custody in 2017 when he was almost three years old, and during the next 22 months mother maintained contact, as permitted, prompting her to contend there was evidence T. was strongly bonded to her. Not so. T. was confused about mother's role in his life, often referring to her as "teacher." Nonetheless, mother rejects any claim that she was "a mere casual visitor," averring her relationship with T. "was parental in nature, and more than 'frequent and loving contact.'" Although she does not agree that T. called her "teacher," assuming he did, she argues the use of such term "suggests that [she] acted in a role that assisted [T.] with learning and exploring new things, a role that is part of being a parent." Still, mother has not demonstrated their relationship is compelling enough to forego adoption. Indeed, mother presents no evidence showing how severing the relationship would be detrimental to T., particularly when weighed against the benefit to him of a permanent home. While the record arguably indicates that mother had loving contact or pleasant visits with T., this has repeatedly been found insufficient to support application of the beneficial parental relationship exception. (In re C.F. (2011) 193 Cal.App.4th 549, 555.)
By the time of the section 366.26 hearing, T., now four months short of his fifth birthday, was doing exceptionally well in his foster family's home where he received appropriate parenting and structure. There is no evidence he experienced distress from separating from mother or that he had any particular need that only mother could meet. As previously noted, T. had progressed from whimpering and hiding, to thriving and developing a strong constitution. He learned to verbally state his feelings and needs, he developed social skills, and he was bonded to the G.'s, who provided him with love and stability. According to the social worker, the G.'s were "the most suited" to become T.'s parents, and T. referred to them as "mom and dad."
Simply put, there is no evidence T. would be "greatly harmed" by the termination of his natural parent-child relationship with mother. (In re Angel B., supra, 97 Cal.App.4th at p. 466.) We therefore conclude mother has not shown the juvenile court's findings lack the support of substantial evidence, or that its exercise of discretion rested on an unsupported factual basis. In short, mother has demonstrated no error by the court.
C. Mother Failed to Raise or Present Evidence of Substantial Interference with the Sibling Bond Relationship Exception.
For the first time, mother contends the sibling bond exception to termination of her parental rights applied. CFS argues she has forfeited this argument by failing to raise it before the juvenile court, and her argument does not assert a question of law such that we should exercise our discretion to excuse forfeiture. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Given the nature of these proceedings that involve the well-being of children, we will err on the side of caution and consider the merits of her claim.
To establish the sibling relationship exception, the parent must show: (1) the existence of a significant sibling relationship; (2) termination of parental rights would substantially interfere with that relationship; and (3) it would be detrimental to the child being adopted if the relationship ended. (In re L.Y.L., supra, 101 Cal.App.4th at p. 952.) If the parent makes this showing, then the juvenile court balances the benefit to the child of continuing the sibling relationship against the benefit of adoption. (Id. at pp. 952-953.)
Here, mother failed to carry her burden of proof. T. has two siblings, L. and S. As for L., on March 7, 2019, mother agreed to the termination of her parental rights to him. We therefore question her standing to use L. to assert the sibling relationship exception to termination of parental rights to T. (In re Erik P. (2002) 104 Cal.App.4th 395, 405 ["a parent, whose rights were terminated, had no standing to raise the issue of subsequent sibling visitation"].) In any case, we need not decide this issue because the juvenile court had substantial evidence before it that T. and L.'s caretakers had developed a friendship, communicated often, and "have a strong commitment to ensuring the children grow up together." And as to S., she was residing in the same home as T., and her caregivers wanted to adopt both her and T.
III. DISPOSITION
The orders denying mother's section 388 petition and terminating parental rights are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. CODRINGTON
J.