In re L.B.
Filed 6/21/13 In re L.B. CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re L.B., a Person Coming
Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
D.B.,
Defendant and Appellant.
D063519
(Super. Ct.
No. J518268)
APPEAL from
a judgment of the Superior Court
of
County, Carol Isackson, Judge.
Affirmed.
Terence M.
Chucas, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas E.
Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and
Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.
D.B.
appeals the judgment terminating her parental
rights to her daughter, L.B. D.B. contends
the juvenile court abused its discretion by denying her modification petition
(Welf. & Inst. Code, § 388),
which sought L.B.'s placement with D.B. with family maintenance services, or
reinstatement of D.B.'s reunification services.
D.B. also contends the court erred by declining to apply the beneficial
relationship exception (§ 366.26, subd. (c)(1)(B)(i)) to termination of
parental rights. We affirm.
BACKGROUND
D.B. has a history of using
her substance abuse. In 2005, she was
placed on five years' probation for driving under the influence. She used marijuana and methamphetamine while pregnant
with L.B., who was born in December 2010.
D.B. also has a history of domestic violence with L.B.'s father,
Jesse B., and minimizing the
violence. In addition, D.B. has a
history of depression, anxiety and mood swings.
She was emotionally unstable and inconsistent in accepting treatment for
her problems.
In October 2011, when L.B. was 10
months old, the San Diego County Health
and Human Services Agency (the Agency) filed a dependency petition. The petition consisted of one count and
alleged L.B. was exposed to domestic violence between Jesse and D.B. (together,
the parents). The petition cited two
specific incidents of violence by D.B. and alleged prior domestic
violence. L.B. was detained in Polinsky
Children's Center and then in a foster home.
In January 2012, the Agency filed an
amendment to the petition, adding a second count. That count alleged L.B. was exposed to
domestic violence between the parents. Specifically, on October 21, 2011, the parents had an argument
and Jesse hit D.B. in the face. The
second count also alleged the parents' domestic violence history included 10
prior incidents.
In January 2012, the court dismissed
the first count of the dependency petition and entered a true finding on the
second count. The court ordered
reunification services for D.B. and ordered L.B. placed with a relative.
L.B. was immediately moved to the
relative's home. There, L.B. exhibited
self-destructive behavior, such as hitting herself in the face and hitting her
head on the ground. After a few months,
the relative said she could no longer care for L.B. because D.B.
"frequently harassed [the relative] with texts and calls."
In April or June 2012, L.B. was
placed with a maternal aunt (the aunt).
L.B. thrived in the aunt's home and formed a strong bond with her. The aunt taught L.B. to redirect her
self-destructive behavior, and that behavior dissipated. D.B.'s inconsistent contact caused L.B.
"confusion and tumultuous emotions," however, and L.B. displayed
signs of distress after their visits.
In early 2012, D.B. had a positive
drug test and, on two other occasions, tampered with test samples. In June, the maternal grandmother reported
the parents "had recently gotten into 'a fight' " during which
the windows in Jesse's apartment were broken.
The maternal grandmother also said D.B. had sent her photographs showing
that Jesse had broken a television in D.B.'s new residence. In July, D.B. failed to appear for a visit,
then went to the aunt's home, yelled at her and threatened to kill
herself. Later that month, D.B. failed
to appear for a drug test. At the
six-month review hearing in September, the court terminated reunification
services and set a section 366.26 hearing.
D.B. was late to three of the five
visits that took place in January and February 2013. During one of those visits, in L.B.'s
presence, D.B. repeatedly told the monitor that the aunt was an unfit
caregiver. During another visit, D.B.
behaved erratically and ignored the monitor's requests.
In February 2013, D.B. filed her
section 388 petition. In March, the
court denied the petition and terminated parental rights. L.B. remained in the home of the aunt, who
wished to adopt her.
THE
SECTION 388 PETITION
Section 388
allows the juvenile court to modify an order if a party establishes, by a preponderance
of the evidence, that changed circumstances exist and the proposed modification
would promote the child's best interests.
(In re Zachary G.
(1999) 77 Cal.App.4th 799, 806.) When a
case is past the reunification phase, the focus is on the child's need for
permanency and stability, and there is a rebuttable presumption that it is in
the child's best interests to remain in the current placement. (In re
Stephanie M. (1994) 7 Cal.4th 295, 317.)
We review
the denial of a section 388 petition for abuse of discretion. (In re
Jasmon O. (1994) 8 Cal.4th 398, 415.)
Thus, we will not reverse unless the juvenile court's decision was
"arbitrary, capricious, or patently absurd" (In re Stephanie M., supra,
7 Cal.4th at p. 318) and "exceeded the bounds of reason" (
evaluate the credibility of witnesses, or resolve evidentiary
conflicts." (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) We therefore accept the juvenile court's
finding that D.B. was not credible.
As
circumstances that had changed since the termination of services, D.B.'s
section 388 petition alleged the following.
D.B. had completed a parenting class, obtained full-time employment and
secured appropriate childcare and stable housing. She had maintained regular and consistent
visitation.
title="">[2] She had attended substance abuse treatment,
continued to attend Narcotics Anonymous (NA) and Alcoholics Anonymous (AA)
meetings, was sober and had a negative drug test in October 2012. She had seen a psychiatrist, had been under a
doctor's care for medication management and continued in therapy.
D.B.'s
section 388 petition alleged it would be in L.B.'s best interests to be placed
with D.B. with family maintenance services, or for D.B. to receive
reunification services, for the following reasons. D.B. had participated in services and
improved in the areas that had led to this case. She had a stable and safe home for L.B. They shared a significant bond that would be
strengthened. L.B. would have access to
medical information.
Attachments
to the petition included the following.
A letter from D.B.'s therapist stated D.B. attended 17 sessions between
February 2012 and January 2013.
According to a certificate dated September 19, 2012, the date the court
terminated services, D.B. completed "8 hours and 4 weeks" of a
parenting course. A February 2013 letter
from a physician ─ not a psychiatrist ─ stated he had last seen
D.B. in June 2012, and in the past she had taken anti-anxiety medication. A meeting verification slip, on the
letterhead of Harmony West Women's Recovery Center (Harmony), listed 25 NA and
AA meetings in January and February 2013, with no verification of D.B.'s
attendance at the last five meetings. A
January 2013 letter from a counselor at the Parent Care program stated D.B.
"complet[ed] an intake" on October 12, 3012, and had a negative drug
test. After the intake, D.B. had no
further contact with Parent Care.
D.B.'s
therapist testified D.B. had stopped and resumed therapy twice. Most recently, D.B. had resumed therapy one
and one-half or two months before the hearing and had attended six
sessions. Her treatment goals were to
stay sober, manage her anxiety and depression and be a good parent. D.B.'s circumstances had improved; she was
"progressing" and was more stable.
She recognized she had been in a violent relationship and accepted
responsibility for its effect on L.B.
D.B. needed to continue working on putting L.B.'s needs before her own
and needed to see a psychiatrist to determine whether she should continue
taking medication for her anxiety and depression. D.B. had
"fulfilled . . . 65 to 70 percent" of her
treatment goal of coping with stressors.
It would take her three to five months to meet her treatment goals if
she attended therapy every two weeks.
D.B.
testified she stopped taking psychotropic
medication a month or two before the hearing when her prescription expired,
but she had an upcoming appointment with her physician. D.B. left Harmony on October 18, 2012, by
mutual agreement, because she was looking for full-time work and she found a
job whose hours conflicted with Harmony's hours. D.B. was not in a substance abuse treatment
program, and was looking for a program that would accommodate her work
schedule. She attended NA and AA
meetings about three times a week but did not have a sponsor. Her meeting verification slip was unrelated
to Harmony, although it was on Harmony letterhead; she was given the slip when
she was at Harmony and "continued to use it." She had been sober since services were
terminated and had a relapse prevention program. She completed the parenting class
online. Social worker David Viafora had
told her that half of the class should be "in person," but when she
gave him the parenting certificate, he said it was acceptable that she had
completed the entire course online.
name="_ftnref3" title="">[3] D.B. had recently moved into an apartment,
and was planning to move into a two-bedroom apartment with a roommate. D.B. first denied there had been 10 prior
incidents of domestic violence, then acknowledged that fact.
The court
found that D.B. had not shown changed circumstances and opined D.B. was not
"very credible." The court
noted that D.B. was working, had housing and was less anxious, and supervised
visits were "generally good."
However, there was "not much evidence at all of any change"
concerning the issues of domestic violence, substance abuse and mental health,
the issues that led to the dependency.
Throughout the dependency, D.B. had a history of starting and stopping
substance abuse treatment. There was no
proof she had completed substance abuse treatment or that she had participated
in treatment since the court terminated services. D.B. did not make that treatment a priority;
she took a job whose hours interfered with her treatment program. Her October 12, 2012, drug test was not a
random test; it was on a date of her choosing.
There were no later test results and no evidence D.B. was sober. Her submission of AA and NA sign-in sheets on
Harmony letterhead was misleading, and designed to suggest she had participated
in Harmony for a period beyond her actual participation. D.B. had not seen a psychiatrist since the
court terminated services, although early in the case a psychologist had
recommended an assessment for psychotropic medication.
therapy was misleading; she quit in September 2012 and did not resume until
approximately two months before the hearing.
She continued to minimize the domestic violence in her relationship with
Jesse, testified there was only one violent incident, and had made no progress
on this issue. D.B.'s completion of a
parenting class on the day the court terminated services was not a change, and
the Agency had not approved the class.
The court
found that D.B. had not shown the proposed changes would be in L.B.'s best
interests. D.B.'s minimization of the
domestic violence with Jesse, her failure to complete a substance abuse program
and the question whether D.B. was sober created "a huge risk" for
L.B. There was no evidence that in two
months
D.B. would be able to meet L.B.'s needs consistently. L.B. enjoyed the supervised visits, but she
had been in numerous placements and "was a troubled little
girl."
D.B. argues
we should consider "the seriousness of the problem which led to the
dependency, and the reason for any continuation of that
problem; . . . the strength of relative bonds between the
dependent child[] to both parent and caretakers; . . . the
degree to which the problem may be easily removed or ameliorated, and the
degree to which it actually has been" (In re
Kimberly F. (1997) 56 Cal.App.4th 519, 532, italics omitted); the
length of time the child has been in the dependency system; and the reason a
change did not occur sooner (id. at
p. 531). A consideration of these
factors would not assist D.B. Her
history of substance abuse, domestic violence and mental health issues were
serious problems that continued despite the services available to her. She continued to minimize those
problems. Two-year-old L.B. had been in
the dependency system for 16 months and had lived with the aunt for at least
seven months. Although L.B. had a bond
with D.B., she had a secure and healthy bond with the aunt and needed the
safety, security and stability the aunt provided.
The court
did not abuse its discretion in denying the section 388 petition.
THE
BENEFICIAL RELATIONSHIP EXCEPTION
D.B. does
not contest the finding L.B. was adoptable.
If a dependent child is adoptable, the court must terminate parental
rights at the section 366.26 hearing unless the parent proves the existence of
a statutory exception. (§ 366.26,
subd. (c)(1); In re Helen W.
(2007) 150 Cal.App.4th 71, 80-81.) An
exception exists if 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 beneficial
relationship "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." (
Cal.App.4th 567, 575.) If terminating
parental rights "would deprive the child of a substantial, positive
emotional attachment such that the child would be greatly harmed, the
preference for adoption is overcome . . . ." (Ibid.) The existence of a beneficial relationship is
determined by "[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.) Examining the evidence in the light most
favorable to the judgment (ibid.), we
conclude substantial evidence supports the court's finding that the bond
between D.B. and L.B. was not so strong as to outweigh L.B.'s need for
permanence.
title="">[6]
Two-year-old
L.B. had been out of D.B.'s care for 16 months, nearly two-thirds of her
life. D.B. never progressed beyond
supervised visitation. During visits,
D.B. was affectionate with L.B. In
general, L.B. was excited to see D.B. and was affectionate with her.
with D.B.
D.B. often
played and interacted with L.B. appropriately, empathized with her and assumed
a parental role. L.B. regularly brought
food to visits and fed L.B., and sometimes changed her diaper. D.B. praised L.B. when she listened to
instructions. At one visit, when L.B.
hit herself, D.B. redirected L.B. and consoled her when she became upset.
However,
D.B. was sometimes inappropriate during visits.
In 2011, she fed L.B. foods that caused her to choke, argued with
visitation monitors and needed to be reminded to focus on L.B. In 2012, D.B. sprayed hand sanitizer all over
L.B.'s body, ostensibly to treat a rash, and ignored requests to stop because
L.B.'s doctor had not approved the spray.
In February 2013, D.B. applied makeup to L.B. during a visit, although
she was aware L.B.'s skin was very sensitive and L.B.'s doctor said L.B. should
not have anything on her skin except unscented soap and lotion. Both before and after services were
terminated, D.B. asked whether Jesse could accompany her to visits, although
the case plan provided for separate visits and D.B. had signed an agreement to
visit separately. D.B. referred to Jesse
as "a deadbeat father" in L.B.'s presence.
Social worker Garnett believed L.B. had a bond with D.B.,
but it was not a parent-child bond and L.B. viewed D.B. as a friendly
visitor. L.B. had a secure and healthy
bond with the aunt and needed the safety, security, stability and consistency
the aunt provided. L.B. sometimes asked
D.B for help during visits, but also sought help from Garnett and asked for the
aunt. L.B. called D.B. "mommy"
and the aunt "auntie," "momma" and "mommy." L.B. did not ask for D.B. between
visits.
DISPOSITION
The judgment is affirmed.
HALLER, J.
WE CONCUR:
McCONNELL, P. J.
McDONALD, J.
name="_ftn1" title="">[1] Further
statutory references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] After services were terminated, D.B. visited L.B. at least
once a week for a total of approximately 21 visits. D.B. was late to some of the visits.
