Opinion
F079824
02-21-2020
In re MATHEW P. et al., Persons Coming Under the Juvenile Court Law. TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. KAREN P., Defendant and Appellant.
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant. Tulare County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. JJV071182A, JJV071182B )
OPINION
THE COURT APPEAL from an order of the Superior Court of Tulare County. Robin L. Wolfe, Judge. Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant. Tulare County Counsel, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Franson, J. and Smith, J.
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Appellant Karen P. (mother) appeals from the juvenile court's order terminating her parental rights to her sons, Michael P. and Mathew P., who are six and two years old respectively. (Welf. & Inst. Code, § 366.26.) After reviewing the juvenile court record, mother's court-appointed attorney informed this court she could find no arguable issues to raise on mother's behalf. This court granted mother leave to personally file a letter setting forth a good cause showing that an arguable issue of reversible error exists. (In re Phoenix H. (2009) 47 Cal.4th 835, 844.) Mother filed a letter but failed to make the requisite showing. Consequently, we dismiss the appeal.
Statutory references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL SUMMARY
Dependency proceedings were initiated in December 2017 when mother and newborn Mathew tested positive for cocaine and marijuana. Mathew was born several weeks early, and mother did not have the necessary items to care for him. Mother said she used cocaine and marijuana during her pregnancy with Mathew to help her cope with depression. She used marijuana more often than cocaine. She did not believe she had a problem with cocaine because she did not crave it. She identified Sergio G. as Mathew's alleged father and said he lived in Reno, Nevada. She and Sergio were not married, and he was unaware of Mathew's birth. She did not have any other identifying information about him. Her oldest son, then three-year-old Michael, lived in Mexico with relatives.
The Tulare County Health and Human Services Agency (agency) placed a protective hold on Mathew at the hospital until a suitable relative could be identified for placement.
The agency filed a dependency petition on Mathew's behalf based on mother's substance abuse and Sergio's failure to provide support (§ 300, subds. (b)(1) & (g)) and the juvenile court ordered him detained. The court ordered the agency to provide mother substance abuse and mental health evaluations, parenting classes and alcohol and drug testing. The court also ordered the agency to provide mother three supervised visits a week and granted it discretion to increase the length and frequency of visits. The agency placed Mathew with M.G., his maternal aunt (the aunt).
On January 18, 2018, Michael returned from Mexico and accompanied mother to the agency's office. Mother was living with her parents, who stated they wanted custody of both children. The agency did not immediately remove Michael but filed a first amended petition, alleging mother's substance abuse placed him at a substantial risk of harm and his alleged father, Jose O., failed to provide for him. Jose's whereabouts were unknown. (§ 300, subds. (b)(1) & (g).) Michael was taken into protective custody two days later and placed with the aunt.
On February 1, 2018, the juvenile court ordered Michael detained and ordered the same services and visitation schedule it ordered in Mathew's case. The court set a contested jurisdictional/dispositional hearing (combined hearing) as to both children for February 23.
By the combined hearing, mother had completed a substance abuse assessment and was referred for outpatient substance abuse treatment. She was participating in a parenting class and in random drug testing. She tested positive several times for the psychoactive constituent in marijuana (THC) and once for cocaine. The aunt was interested in adopting the children. Mother wanted G.P., the children's maternal grandmother (the grandmother), to adopt them but was living with the grandmother.
At the combined hearing, the juvenile court sustained the allegations, ordered the children removed from mother's custody and ordered her to participate in mental health, parenting and substance abuse services, including random drug testing. The court did not order services for the alleged fathers.
By the six-month review hearing in August 2018, mother had completed a parenting program, was participating in mental health counseling and was considered compliant with outpatient substance abuse treatment but was struggling with her recovery. She had a significant number of "no shows" and positive results for THC. The agency characterized her progress as "moderate" and did not believe the children could be safely returned to her custody. The children meanwhile were doing well in their relative placement.
The juvenile court continued mother's reunification services and set the 12-month review hearing for February 6, 2019. The court found her noncompliant with her case plan. The court expressed its concern about her marijuana use, stating she should not be using it because of her substance abuse problem. The court emphasized the importance of participating in mental health treatment given mother's reliance on drugs to deal with her depression. The court admonished mother about using her visits to bond with the children rather than spend that time on her cell phone.
In September 2018, mother completed outpatient treatment but was re-referred for a substance abuse assessment in December after she continued to test positive for marijuana and tested positive several times for cocaine. She denied using cocaine. On December 7, mother completed the assessment and was referred to the New Heights Outpatient Treatment program. She enrolled in New Heights on January 24, 2019.
The agency recommended the juvenile court terminate mother's reunification services at the 12-month review hearing and set a section 366.26 hearing. In addition to her noncompliance with substance abuse treatment, she either failed to show or cancelled 23 of her visits during the reporting period.
On February 6, 2019, the juvenile court set a contested 12-month review hearing for March 6. Meanwhile, on February 11, mother was discharged from New Heights for noncompliance. She did not inform the social worker she was discharged and represented that she was still participating, telling her social worker on February 15 and 22 that she would submit proof of her attendance.
The contested 12-month review hearing was continued for a day and conducted on March 7, 2019. Mother appeared with her attorney, who asked the court not to terminate her reunification services. He acknowledged that her performance had been "shaky," but she had an appointment the next day to reenter New Heights for outpatient treatment. Her attorney also had proof of her attendance at seven Alcoholics/Narcotics Anonymous meetings in February 2019 and one in March. The court followed the agency's recommendations, set a section 366.26 hearing for June 7, 2019, and advised mother of her right to seek extraordinary writ review. Mother did not file a writ petition.
On May 15, 2019, the grandmother's attorney filed a modification petition (§ 388, subd. (a)), asking the juvenile court to place the children with her because she and mother were no longer living together. She acknowledged the aunt was taking good care of the children but believed she could provide them better care and wanted to be considered for adoption. The court set a hearing on her request to coincide with the section 366.26 hearing.
Mother, the aunt and the grandmother appeared at the hearing on June 7, 2019. Mother told the juvenile court she agreed with placing the children with the grandmother. The aunt told the court she was not opposed. County counsel informed the court the grandmother had not completed the approval process. The court continued the matter to July 8 to allow the agency to explain the placement process to the grandmother. Approximately a week after the hearing, the aunt told the social worker she misunderstood the court's question. In fact, she opposed placing the children with the grandmother because she wanted to adopt them.
In reports filed for the continued hearing, the agency informed the juvenile court the children were likely to be adopted and recommended the court terminate mother's parental rights as well as those of the alleged fathers and free the children for adoption. The children were well-adjusted and appeared happy with the aunt. Michael referred to her as "mom" and said he liked living with her. In an addendum report, the agency recommended against placing the children with the grandmother because she had not completed the application process, attended the orientation or completed the background check and been fingerprinted.
On July 8, 2019, the juvenile court took up the matter of the grandmother's section 388 petition and confirmed that the aunt was not in agreement with placing the children with the grandmother. After hearing argument, the court denied the petition and proceeded to the section 366.26 phase of the hearing.
Mother testified she had not missed any visits with the children during the prior several months. She and the children colored, drew pictures and played with Legos. She talked to Michael about his feelings and how he was doing. They talked about school and the fact that he did not like it. Mother tried to be encouraging and positive. Aside from missing her, Michael said everything was "okay." However, he asked if he could go home with her and when was he going home with her. She said it hurt her to hear him ask.
Mother believed Michael was bonded to her and it would be detrimental to him if her parental rights were terminated. She was a single parent and she and Michael were very close. Before he was removed from her custody, they did everything together. Because of their bond, he initially had a hard time adjusting to being without her. She did not know why he was calling her by her first name when he previously called her "mom." She believed his feelings had changed and their bond was "weak." He used to cry or throw things at the end of visits and now just walked away.
Mother testified that Mathew sat on her lap and hugged her during visits. She had "that little bond with him also." She and Mathew used blocks to build houses and they played with cars or colored.
Mother's attorney argued the juvenile court should apply the beneficial parent-child relationship exception to adoption because of the bond mother had with the children and her effort to maintain that parent-child connection.
The juvenile court found the children were likely to be adopted and that mother had not met her burden of showing a beneficial parent-child relationship existed such that it would be detrimental to the children to terminate her parental rights. The court further found the benefit to the children of adoption outweighed any bond they may have with mother and terminated her parental rights.
DISCUSSION
Once the juvenile court terminates reunification efforts and sets a juvenile dependency matter for a section 366.26 hearing, the court's focus is no longer on reunifying parent and child. Rather, the court's focus is on the child's need for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) If, as in this case, the child is likely to be adopted, the court must terminate parental rights unless the parent proves there is a compelling reason for finding that termination would be detrimental to the child under any of the circumstances listed in section 366.26, subdivision (c)(1)(B). Mother's attorney attempted to establish that termination of her parental rights would be detrimental to Michael and Mathew by arguing the beneficial parent-child relationship exception contained in section 366.26, subdivision (c)(1)(B)(i) applied. This exception applies if termination of parental rights would be detrimental to the child because a 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).) A parent asserting this exception must show he or she "occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment between child and parent." (In re C.F. (2011) 193 Cal.App.4th 549, 555.) The juvenile court was not persuaded that the exception applied and terminated mother's parental rights.
Mother does not argue in her letter that the juvenile court erred in finding the children were likely to be adopted or in not applying the beneficial parent-child relationship exception to adoption. Rather, she laments what she characterizes as a "cruel" system that allows the termination of parental rights. She asserts that the agency destroyed rather than helped her and that her social worker ignored her. She contends she completed all the services required of her and explains that she was afraid to take an antidepressant, so she obtained a medical marijuana card. She claims she attempted to provide her social worker a copy of her medical marijuana card, but the social worker rejected it. Mother also asserts that the aunt did not inform her of the children's doctor's appointments and kept cancelling her visits. The aunt then "went behind [her] back[ ] and filed for adoption ... one week before the court date." Mother claims she is in a better state of mind than she has ever been in her life, stable enough for the children to be placed in her custody. She does not believe her parental rights should have been terminated and vows to regain custody of her children.
We found no evidence in the record that mother had a medical marijuana card. --------
Since mother does not raise any issues underlying the juvenile court's order terminating her parental rights, mother has failed to establish a good cause showing there are any arguable issues requiring supplemental briefing. Further, though we are not required to, we have reviewed the record as it relates to the section 366.26 hearing and we have found no arguable issues for briefing. (In re Phoenix H., supra, 47 Cal.4th at pp. 841-842.) Accordingly, we dismiss this appeal.
DISPOSITION
This appeal is dismissed.