In re L.V.
Filed 1/28/14 In re L.V. CA4/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re L.V., a
Person Coming Under the Juvenile Court Law.
SAN DIEGO COUNTY
HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Appellant,
v.
A.H.,
Defendant and Respondent.
D064325
(Super. Ct. No.
SJ012489)
APPEAL
from a judgment of the Superior Court of
San Diego County, Garry G. Haehnle, Judge.
Affirmed.
Neale
B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas
E. Montgomery, County Counsel, John E.
Philips, Chief Deputy County Counsel, and Emily K. Harlan, Deputy County
Counsel, for Plaintiff and Respondent.
Joanne
Willis Newton, under appointment by the Court of Appeal, for Minor.
A.H.
is the mother of L.V., who turned three years old in November 2013. The juvenile court entered judgment after it
terminated parental rights; found that the exception to termination of
366.26, subdivision (c)(1)(B)(i)
name="_ftnref1" title="">[1]
(the "continuing benefit exception"), did not apply; and ordered
adoption as L.V.'s permanent plan.
The
mother appeals, first arguing that the court erred when it summarily denied her
section 388 petition when it found she had not met her burden to make a prima
facie showing of changed circumstances.
We conclude the court did not err because the mother did not present
evidence of changed circumstances. She
next argues that substantial evidence does not support the court's finding that
the continuing benefit exception did not apply.
We conclude that substantial evidence supports the court's findings and affirm
the judgment.
FACTUAL
AND PROCEDURAL BACKGROUND
A. L.V.'s First Removal
On
January 7, 2011, the San Diego County
(the Agency) took one-month-old L.V. into custody and filed a petition under
section 300, subdivisions (b) and (g). The
subdivision (b) count alleged the mother failed to protect L.V. when she left
her with the maternal grandmother who had known substance abuse problems and
who subsequently left L.V. in the care
of two teenage relatives overnight. The
subdivision (g) count alleged the child had been left with no provision for
support because the mother was incarcerated and unable to arrange for her care,
and the whereabouts of the alleged father were unknown.
The
mother appeared at the detention hearing on January 11, 2011, while in custody. She had
been arrested in December 2010 for being under the influence of a controlled
substance, failure to appear, and violation of a restraining order. At the time of the detention hearing, the mother
had been sentenced for the restraining order violation and was not scheduled to
be released until the following month on February 22, 2011. During the course of the
Agency's investigation, the mother reported an eight-year history of marijuana
and methamphetamine use, beginning when she was 14 years old.
On
February 1,
2011, the court held the jurisdiction and
disposition hearing. The court found L.V.
was described by section 300, subdivision (b) by clear and convincing evidence,
that removal was necessary, and ordered L.V. placed in a licensed foster
home. The court ordered the Agency to
provide reunification services to the mother and ordered the mother to comply.
B. The Reunification Period
The
mother's court-ordered reunification plan included individual therapy,
parenting education, a substance abuse treatment program, a 12-step program
involving twice-weekly Narcotics Anonymous (NA) meetings, and random drug
testing. At a special hearing on April 5, 2011, the court also ordered the mother into drug court and authorized a
psychological evaluation if recommended by her therapist.
By
the time of the six-month review hearing on July 26, 2011, L.V.
had been diagnosed with several ongoing medical conditions and needs. L.V. was prescribed a specific type of
formula for acid reflux, was under doctor's supervision for a hemangioma and a
hernia, and was attending physical therapy sessions biweekly for hip
dysplasia. She also needed surgery for a
blocked tear duct.
The
mother's supervised visits with L.V. went well in many respects except
feeding. On May 3, 2011, the mother tried to give L.V. a different type of formula than
what was prescribed. A social worker
asked the mother not to feed the child a different kind of formula during
visits, and the mother agreed. The
mother subsequently fed L.V. the wrong kind of formula during a visit on June 22, 2011.
Meanwhile,
the mother had been attending weekly individual therapy since February 2011,
but the therapist reported the mother would not discuss her substance abuse
issues. At the therapist's
recommendation, the mother participated in a psychological evaluation in May
2011. The evaluator reported difficulty
diagnosing the mother because she was "inclined either to deny that she ha[d]
any problems in her life or to simply avoid discussion of those problems." The psychologist also opined that the mother's
lack of distress suggested her work in recovery and reunification services
might turn out to be superficial, and she may be "going through the motions
rather than dealing with real issues."
The
mother's other service providers reported she was doing well in parenting class
and substance abuse programs. The mother
had a part-time job and had started school to obtain a degree in business.
In
November 2011, the mother graduated from drug treatment. She was also making better progress in
therapy than in the first six months of services. The mother's therapist noted that her prevention
plan was that she would not use drugs because that would mean that she would
lose L.V.
By
the
time of the 12-month permanency review
hearing on January
31, 2012, L.V. had moved from foster care
to the home of her paternal aunt Sylvia S.
Her medical and developmental needs were decreasing and she had
graduated from physical therapy services.
The
mother remained employed at the time of the 12-month permanency review hearing,
but she had stopped attending school due to the amount of her student
loan. She was living with the maternal
grandmother who was involved in the original protective incident. The mother understood that she would need to
obtain different housing in order to reunify with L.V. The court adopted the Agency's recommendation
to continue reunification services for the mother to the 18-month permanency review
hearing.
At
the time of the 18-month permanency review hearing on July 3, 2012, L.V.'s developmental delays had improved, and she no longer had
appointments scheduled for reassessment.
The mother had successfully completed therapy. The therapist reported the mother was very
compliant and was able to address the protective issues by remaining
clean. The mother had continued attending
her weekly NA meetings and had been randomly drug tested twice with negative
results. She had obtained her own
apartment, continued to be employed at a clothing store, and was seeking a
second job. L.V. was ordered placed with
her mother on August
7, 2012.
C. L.V.'s Second Removal
A
little over two months later, in October 2012, L.V. was again removed from the
mother's custody. The Agency discovered
the mother had moved out of the approved relative home of her maternal aunt in
violation of her safety plan. Without
notifying the Agency, she had moved back into the home of the maternal
grandmother where L.V. had originally been removed. The worker met with the mother on October 22, 2012, and asked her to drug test.
The mother tested positive for amphetamines and methamphetamine.
The
mother's sister reported that she had observed the mother at the maternal grandmother's
home on October
19, 2012, and believed she was under the
influence of drugs on that day. On October 24, 2012, the maternal grandmother's roommate reported he was a recovering
addict himself and believed the mother had been using drugs for over a month
while staying in their home. Both the
sister and the roommate reported seeing unknown men at the maternal grandmother's
home while the mother was there.
When
confronted with the positive drug test, the mother initially denied using
drugs. She later admitted to using methamphetamine
with a friend about five times on the morning of October 22, 2012. She stated she and her
friend took turns smoking methamphetamine and caring for L.V. The mother subsequently failed to appear for
two drug tests on October 25 and 26, 2012.
The
mother did not schedule a visit with L.V. until 10 days after her October 25, 2012, removal. At one November 2012 visit, she failed to change the child's diaper and told the
caregiver she was trying to teach L.V. to change her own diaper. At a subsequent November 2012 visit, she
arrived nearly two hours late with a black eye, accompanied by a man who could
not keep his eyes open and kept falling asleep.
At
the contested adjudication and disposition hearing on the Agency's section 387
petition on January
16, 2013, the mother provided a letter from
a lead treatment counselor indicating the mother had been a resident at KIVA
inpatient drug and alcohol treatment program since December 24, 2012, and had tested negative for drugs on December 26, 2012. The court found that the
mother's recent and belated entry into drug treatment was not sufficient to
overcome the risk to L.V. if she were returned to the mother's care. The court made a true finding on the section
387 petition and removed L.V. from the mother's care by clear and convincing
evidence. The court also terminated the
mother's services and set a section 366.26 hearing. L.V. was placed back in the home of the
relative caregivers who had cared for her prior to the mother's short period of
reunification
D.
Mother's Section 388 Petition
The mother filed her section 388
petition on June
19, 2013, a little over a month after the
child's initial section 366.26 hearing on May 15, 2013. Her petition asked the court to place L.V.
with her with family maintenance services or, in the alternative, to order a
permanent plan of another planned permanent living arrangement and unsupervised
visitation. The mother attached a third
version of a relapse prevention plan to her petition. She also attached a letter to the judge
expressing her embarrassment about her relapse, her belief that she is an "awesome
mother," and her determination to get her daughter back.
On
June 25, 2013, the court heard prima facie arguments on the mother's section 388
petition at the pretrial settlement conference for the section 366.26 hearing. The court allowed her counsel to attach a
letter from St. Vincent de Paul Village (St.
Vincent), indicating the mother had been
receiving room and board there for approximately one week. The court also permitted counsel to attach a
completion letter from the KIVA residential drug and alcohol treatment program
indicating the mother tested negative for drugs during her four-month stay and
completed the program on April 22, 2013.
The court also heard unsworn statements from mother's counsel regarding
the mother's progress in aftercare and the services provided by St. Vincent. The mother's counsel indicated the mother had
two unexcused absences and her participation in aftercare was not satisfactory
due to nonpayment of fees. Mother's
counsel also asserted the mother was participating in the sessions she did
attend and had negative drug tests.
The
court found the mother had not made a prima facie showing and summarily denied
her section 388 petition. Specifically,
the court found the mother's circumstances were changing, but had not
changed. The court noted the mother had
previously completed drug treatment and aftercare, knew her tools and triggers,
and yet did not reach out to any member of her support group prior to her relapse. The court also noted the mother had a shorter
period of sobriety and less time in stable housing at the time of her section
388 petition than she had the first time L.V. was returned to her. The court also found no prima facie showing
of best interests to return L.V. to her mother.
E.
Section 366.26 Trial
The contested section 366.26 hearing
was held on July
11, 2013. The court received into evidence several
Agency reports written by social workers Peter Ellew and Barbara Wojtach. The court also heard testimony from senior
protective services worker Wojtach.
Wojtach testified she had observed three visits by the time of the
hearing. She observed an enjoyable
relationship between the mother and LV. However, she did not observe L.V. seek out
comfort and care from her mother. She
also noted that L.V. interacted in the same manner with other relatives during
a visit as she did with the mother. Moreover, L.V. had been excited to see Wojtach
and hugged the social worker on only the second time the two saw each other. The mother's counsel had no questions for Wojtach.
Social
worker Ellew observed approximately 14 visits during his assignment to the
case. He assessed the bond between
mother and daughter to be akin to a "fun relative." He also observed L.V.'s reaction to seeing
her mother as similar to her reaction to seeing her aunt. For example, Ellew observed L.V. react
excitedly to the presence of her aunt Alexandra V. and cry out "come here"
when Alexandra tried to leave a visit.
Ellew opined L.V. reacted this way because Alexandra was kind, playful,
and gave her lots of attention. Moreover, L.V. was excited to see Ellew and
showed affection to other nonrelatives, such as her day care provider.
Social
worker Ellew believed adoption was in L.V.'s best interest based on her need
for stability and consistency after many changes and disruptions in her
life. He noted L.V. had only lived with
the mother for a total of six months out of her almost 30 months of life and
had been subjected to the mother's drug use, inconsistent supervision, and
frequent moves. By May 2013, L.V. had
lived with her current relative caregivers for 14 months. The parties had no questions for Ellew at the
hearing.
The
mother argued the continuing benefit exception applied to preclude
adoption. The mother's evidence included
visitation records from the Agency and the visitation center. The court also agreed to receive the
visitation logs and the letter of completion of drug treatment which had been
previously attached to the mother's section 388 motion. Finally, the mother offered stipulated
testimony from the caregiver, Sylvia, that she would prefer to adopt L.V., but was
also willing to become her legal guardian if the court so ordered.
At
the close of evidence, the court found by clear and convincing evidence that it
was likely L.V. would be adopted and that none of the exceptions set forth in
section 366.26, subdivision (c)(1)(B) applied.
The court terminated parental rights, selected adoption as L.V.'s
permanent plan, and referred the matter to the Agency for adoptive placement.
DISCUSSION
I
Mother's Section 388 Petition
The
trial court denied the mother's section 388 petition because it found her
circumstances were changing, but had not changed. The mother contends the court abused its
discretion because she made the required prima facie showing. The Agency contends the court's findings did
not demonstrate an arbitrary, capricious, or patently absurd exercise of its
discretion. We agree with the Agency and
hold the court did not abuse its discretion.
A. Standard of Review
Petitions
under section 388 are construed in favor of their sufficiency. (In re
Angel B. (2002) 97 Cal.App.4th 454, 461.) Thus, if a petition presents any evidence that
a hearing would promote the best interests of the child, the court must order
the hearing. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 431-432.) The court may deny the application ex parte
only if it fails to state a change of circumstance or new evidence that might
require a change of order or termination of jurisdiction. (Ibid.)
The
decision to grant or deny a section 388 petition is within the discretion of
the juvenile court. (
1228; In re Casey D. (1999) 70
Cal.App.4th 38, 47.) Likewise, a summary
denial of a section 388 petition is committed to the court's discretion. (In re
Angel B., supra, 97 Cal.App.4th at
p. 460; In re Zachary G. (1999) 77 Cal.App.4th
799, 808.) " 'The appropriate test
for abuse of discretion is whether the trial court exceeded the bounds of
reason.' " (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) " 'When two or more inferences can
reasonably be deduced from the facts, the reviewing court has no authority to
substitute its decision for that of the trial court.' [Citation.]" (Walker
v. Superior Court (1991) 53 Cal.3d 257, 272.) A reviewing court will not disturb the trial
court's exercise of discretion unless the trial court's decision was arbitrary,
capricious, or patently absurd. (
"That
another court might reasonably have reached a different result on this issue,
however, does not demonstrate an abuse of discretion. An abuse of discretion may be found only if ' "no
judge could have reasonably reached the challenged result. [Citation.]" ' " (O'Donoghue
v. Superior Court (2013) 219 Cal.App.4th 245, 269; see also
452, 469.) The mother must affirmatively
establish an abuse of discretion; it is never presumed. (In re Cliffton B. (2000) 81
Cal.App.4th 415, 423; In re Marriage of
Gonzalez (1976) 57 Cal.App.3d 736, 749.)
B. The Court Did Not Abuse Its Discretion
The
mother has not met her burden to show the trial court's denial of her petition
was arbitrary, capricious, or patently absurd.
After the court returned L.V. to the mother's custody, the mother
resumed smoking methamphetamine in very short order and did so while she had
custody of L.V. She did so despite
telling the court that her relapse prevention plan was staying sober so she
would not again lose L.V. The mother
exercised poor judgment when she left L.V. in the care of a person who she knew
had been smoking methamphetamine so that the mother could also smoke the drug. Thus, despite past reassurances of compliance
with services and treatment, she had shown she was unable to remain sober even
when the stakes involved the loss of L.V.
At
the time of the section 388 hearing, the mother presented no evidence that she was
ready to assume custody of L.V. or provide suitable care for her. The court found the mother had less stable
housing and less time in sobriety than the first time L.V. was returned to her.
The record supports both of these
findings. The mother had been in St. Vincent housing for
approximately one week, and the organization's letter stated she would receive
housing and services for only four months with no indication that she would be
able to stay there for any longer period of time. As the mother had done in the past when she
needed housing, she was likely to return to the maternal grandmother's house,
the location where L.V. was removed both times.
The record does not support any contention that the mother could have stayed
at St. Vincent longer than four months. Her
sobriety period was also much shorter.
When the court returned L.V. the first time, the mother had been sober
for approximately 18 months. However, at
the time of the section 388 hearing, she had been sober for less than eight
months. Moreover, while the mother had a
job and was seeking a second job at the time of the hearing, this fact did not constitute a changed
circumstance because she had a job before the court returned L.V. to her.
In
short, while the mother showed she had taken steps to change, she had not shown
circumstances had changed such that a change of the court's order was possible. She had a shorter period of sobriety and only
temporary housing. Based on the facts
before the court, we cannot say that " ' "no judge could
have reasonably" ' " summarily denied the section 388
petition. (See O'Donoghue v. Superior Court, supra, 219 Cal.App.4th at p. 269.) The court did not abuse its discretion when
it did so.
II. The
Continuing Benefit Exception
At
the contested section 366.26 hearing, the court found the continuing benefit
exception did not apply. On appeal, the
mother contends substantial evidence supports a finding that the continuing
benefit exception applied because she shared a parental bond with L.V., who
would continue to benefit from the relationship. We conclude that substantial
evidence supports the court's findings.
A.
Background and Standard of Review
Once a court determines a child is
likely to be adopted, the burden shifts to the parent to show that termination
of parental rights would be detrimental to the child under one of the
exceptions listed in section 366.26, subdivision (c)(1)(B). (In re
Zachary G., supra, 77 Cal.App.4th at p. 809.) An exception to the adoption preference
applies if termination of parental rights would be detrimental to the child
because the "parents have maintained regular visitation and contact with
the child and the child would benefit from continuing the relationship."
This
court has interpreted the phrase " 'benefit from continuing the . . . relationship' "
to refer to a relationship that "promotes the well-being of the child
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, italics added.)
We
have further noted that "[i]nteraction between natural parent and child
will always confer some incidental benefit to the child. The significant attachment from child to
parent results from the adult's attention to the child's needs for physical
care, nourishment, comfort, affection and stimulation. [Citation.]
The relationship arises from day-to-day interaction, companionship and
shared experiences. [Citation.] The exception applies only where the court
finds regular visits and contact have continued or developed a significant,
positive, emotional attachment from child to parent." (In re
Autumn H., supra, 27 Cal.App.4th
at p. 575.)
However,
"[a] biological parent who has failed to reunify with an adoptable child
may not derail adoption merely by showing the child would derive
relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of
the juvenile court should not be deprived of an adoptive parent when the
natural parent has maintained a relationship that may be beneficial to some
degree, but that does not meet the child's need for a parent." (In re
Angel B., supra, 97 Cal.App.4th at
p. 466.)
This
"issue is subject to a sufficiency of the evidence standard of review." (In re
C.F. (2011) 193 Cal.App.4th 549, 553; see also In re Dakota H. (2005) 132 Cal.App.4th 212, 228;
p. 576.) " 'On review of the sufficiency
of the evidence, we presume in favor of the order, considering the evidence in
the light most favorable to the prevailing party, giving the prevailing party
the benefit of every reasonable inference and resolving all conflicts in
support of the order.' " (
"We
do not reweigh the evidence, evaluate the credibility of witnesses, or resolve
evidentiary conflicts." (
at p. 228.) "The judgment will be
upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the
trial court might have reached a different result had it believed other
evidence." (
there is no evidence of a sufficiently substantial nature to support the
finding or order." (
B. Substantial Evidence Supports the Court's
Findings
Although
it is clear that L.V. shared some sort of bond with the mother, substantial
evidence supports the court's finding that their bond did not rise to the level
of a beneficial parent-child bond. The
court found L.V.'s relationship with the mother was similar to the child's
relationship with others in her life.
Indeed, although L.V. was excited to see the mother and showed her
affection, she reacted in a similar manner to other family members like her
aunt Alexandra, who was not her caregiver.
Moreover, L.V. showed affection to the two social workers assigned to
her case and to her day care provider. In fact, she reacted excitedly to Wojtach, who
was a virtual stranger, on only the second time they had met and gave Wojtach a
"big hug." Clearly, L.V. is an
outgoing and affectionate child who freely expresses her enthusiasm and
affection. However, the fact that she
showed affection to the mother does not establish a parental bond. It merely
establishes that L.V. has some bond
with the mother—a bond that was no different than the bond L.V. shared with
others in her life.
The
parent must do more than demonstrate "frequent and loving contact[,]"
(In re Beatrice M. (1994) 29
Cal.App.4th 1411, 1418 ) an emotional bond with the child, or that parent and
child find their visits pleasant. (
318, 324.) Instead, the parent must show
that she occupies a "parental role" in the child's life. (Ibid.;
see also In re Beatrice M., at pp.
1418-1419.)
While
L.V. and the mother had pleasant visits, and L.V. was sometimes sad to see the
visits end, there is no bonding study or other evidence that showed the mother
occupied a parental role in L.V.'s life, that she would suffer any actual
detriment on the termination of parental rights, or that the benefits of
continuing the parental relationship outweighed the benefits of permanent
placement with family members who are ready to give her a permanent home. It is apparent that L.V. looks to the caregiver
to fulfill her emotional and physical needs.
For much of L.V.'s life, the caregiver had been the only adult who
provided her with food, shelter, protection, and guidance on a regular basis. While the relationship between L.V. and the
mother is pleasant to L.V., it is not the sort of consistent nurturing that
marks a parental relationship. (Accord,
823, 827.) A friendly relationship is "simply
not enough to outweigh the sense of security and belonging an adoptive home
would provide." (
71, 81.) The trial court properly
concluded that the continuing benefit exception did not apply in this case.
DISPOSITION
The judgment is affirmed.
BENKE, Acting P. J.
WE CONCUR:
AARON, J.
IRION, J.
name="_ftn1" title="">[1] All further statutory
references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] The father is not a
part of this appeal.
