Filed 8/29/18 In re P.M. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In re P.M., a Person Coming Under the Juvenile Court Law.	H045586 (Santa Cruz County Super. Ct. No. 16JU00161)
SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. D.R., Defendant and Appellant.

The juvenile court denied mother D.R.’s Welfare and Institutions Code section 388 petition to reinstate family reunification services and terminated her parental rights over her two-year-old daughter P.M. (minor). Mother argues on appeal that the juvenile court abused its discretion by refusing to reinstate family reunification services because mother’s progress in maintaining sobriety showed it was in minor’s best interest to give mother another chance to reunify. Mother also argues that the juvenile court erred by terminating her parental rights and freeing minor for adoption because the beneficial parent-child exception to the statutory preference for adoption applied. Finding no error, we will affirm.

• I. Juvenile Court Proceedings

1. Initial Dependency Petition and Detention

Minor was born in February 2016 to mother and presumed father M.M. The Santa Cruz County Human Services Department (Department) filed a juvenile dependency petition related to minor when she was four months old. (Welf. & Inst. Code, § 300, subd. (b)(1); unspecified statutory references are to this Code.) The petition alleged that minor was at substantial risk of suffering serious physical harm or illness because parents were unable to supervise or protect her due to their substance abuse. The petition alleged that both parents abused alcohol and methamphetamine, and that they left minor with minor’s maternal grandmother and the grandmother’s live-in-boyfriend even though a condition of the boyfriend’s parole forbade him from being around children. Minor was detained pending a jurisdiction and disposition hearing.

2. Jurisdiction and Disposition

The Department’s jurisdiction and disposition report noted minor had some health issues as a result of her premature birth. Mother had been referred to the Department when minor was born because mother admitted having used methamphetamine before realizing she was pregnant, but no action was taken because minor tested negative for drugs at birth and mother had attended all follow-up medical appointments for minor.

As for the incident leading to detention, mother had apparently arrived at maternal grandmother’s house one afternoon smelling strongly of alcohol. Mother left minor at the residence for two days without providing maternal grandmother clothing or food for minor. Mother knew that a condition of maternal grandmother’s boyfriend’s parole forbade him from being near children, but left minor at the house anyway. (Though there are references to the boyfriend being a registered sex offender, the Department clarified in a later report that he was not; the condition forbidding contact with children was from a conviction for shaking a baby.) Mother and father were arrested on outstanding warrants when they returned to pick up minor.

Mother and father had relatively short criminal histories. Mother had prior convictions for driving under the influence, driving with a suspended license, and grand theft related to forgery. Father had prior convictions (or deferred entries of judgment) for driving under the influence and possessing drug paraphernalia, and father had a pending charge of possessing a controlled substance for sale based on his arrest the day minor was detained.

Both parents tested positive for amphetamine and methamphetamine during random drug tests. Minor was placed with a maternal uncle and his wife, and parents consistently visited minor after she was detained. After a hearing, the juvenile court sustained the petition and ordered that parents receive family reunification services.

3. Six-month Review

The Department’s six-month review report stated that mother had engaged in reunification services, but father had not. (Because father’s reunification services were terminated at the six-month review hearing and he is not a party to this appeal, we will summarize details related to him only as relevant to mother’s appeal.) An updated criminal background check indicated that mother had been charged with two forgery-related crimes around the time of the jurisdiction and disposition hearing. Following those convictions and father’s commitment to county jail as a term of probation, mother voluntarily entered drug treatment and made some progress. Minor was flourishing in her placement. She had an eye condition related to her premature birth, but her caregiver made sure she made all medical appointments (including trips to Palo Alto for specialized care). Mother graduated from drug treatment and moved into a homeless shelter. Mother’s visits with minor were going well enough that the Department authorized unsupervised visitation. Two unsupervised visits had gone well.

Mother’s engagement in services faltered halfway through the six-month period. Mother moved out of the shelter without notifying the Department. She told a social worker she had moved into a residence with other adults, but she never provided the information necessary to complete background checks on them (necessary to allow minor unsupervised visits at the new residence). Mother failed to attend scheduled visitations with minor during the last week of December 2016, and later explained she missed those visits because she had traveled to see father in Southern California. The Department shifted mother back to supervised visitation and requested a drug test, which was positive for amphetamine and methamphetamine. Despite mother’s missteps, the six-month review report recommended continuing reunification services for another six months to allow mother to reengage in services.

The Department later filed a memorandum before the six-month review hearing that recommended terminating reunification services to mother because of developments since the previous report. Mother had informed the Department that she planned to enroll in a drug aftercare program but that she did not want to live in a sober living environment. She stopped attending the program after one month. Mother missed multiple scheduled visits; on one occasion she was seen outside the visitation facility with father before the appointment time but never made it inside for the scheduled visit. Mother’s inconsistent visitation appeared to adversely affect minor’s emotional health; the caregiver reported that minor was displaying emotional distress around visitation appointments (including being fussy, clinging to the caregiver, and crying in transitions). Mother had not completed a drug test in close to three months, and she had recently been arrested with father on misdemeanor forgery charges.

At the six-month review hearing, the Department changed its recommendation once again as to mother. Mother had apparently re-entered drug treatment, and the Department recommended continuing reunification services for her. The juvenile court followed the Department’s recommendations to continue mother’s services and terminate father’s services.

4. Twelve-month Review

Like her progress in the first six months, mother’s progress during the next several months started positively and then faltered. The 12-month review report stated mother completed residential drug treatment soon after the six-month review hearing and moved into a sober living environment. Mother self-reported a relapse just over a month after completing drug treatment, and she tested positive for methamphetamine. She also missed a visitation appointment with minor that month, and explained to a social worker that she missed the visit because she went to see father when he was released from jail. Mother relapsed again with methamphetamine just over a month after her previous relapse. Mother told a social worker she relapsed because she went to see father and became angry when she saw him with another woman. The Department recommended terminating reunification services to mother in light of minor’s young age, mother’s two relapses over a short period of time, and mother’s refusal to stop interacting with father even though interactions with him appeared to trigger relapses. The juvenile court followed the Department’s recommendation at the 12-month review hearing (which actually occurred 14 months after the jurisdiction and disposition hearing) by terminating reunification services to mother and setting the matter for a section 366.26 selection and implementation hearing.

5. Section 366.26 Proceedings and Mother’s Section 388 Petition

The section 366.26 report noted that minor was in good health. Her only medical issue was the need for prescription glasses to counteract astigmatism from underdeveloped retinas caused by her premature birth. The report provided details about minor’s caregivers (minor’s aunt and uncle). They had been together for 13 years and had three biological children (ages three through 11). They lived in a house in a residential part of Watsonville and worked alternating shifts to ensure that one parent was always home to care for the children. They enrolled their children in community sports and took them on family outings. They told the social worker they “love [minor] and cannot imagine her living anywhere else.” They had provided for all of minor’s physical, emotional, medical, and psychological needs. Though minor was still too young to be interviewed, the report noted minor “indicate[s] through her behavior that she feels happy and secure in the home of her aunt and uncle.” The Department stated that in her current placement minor had an “established routine, consistency, reliability[,] and predictability that makes her feel safe and secure.”

The report noted that mother was five months pregnant with another child. Mother had consistently attended her monthly visits with minor (visitation frequency had reduced from multiple times per week to once per month after the court terminated reunification services). Mother was attentive and supportive during visits, but minor was never upset when visits ended and the report opined that minor “does not look to [mother] as a parent, but instead [mother] has a visiting relationship” with minor. The Department recommended that the juvenile court terminate parental rights and free minor for adoption by her aunt and uncle.

A few weeks after the Department filed the section 366.26 report, mother filed a section 388 petition seeking an order reestablishing family reunification services. Mother pointed to several positive steps she had taken since termination of family reunification services, including taking part in outpatient drug abuse services; maintaining sobriety; attending NA/AA meetings; consistently visiting minor; complying with the terms of her probation; volunteering with a food bank; and taking classes at the local community college. She submitted drug testing results for the entire period since the 12-month review hearing and all were clean.

The Department filed a response to the section 388 petition, arguing that terminating parental rights would still be in minor’s best interest. The response noted that minor had lived with her aunt and uncle for 20 of the 24 months of her life, had become attached to them, and responded to them as if they were her biological parents. The response disclosed that minor needed physical therapy to treat previously undiagnosed tightness in her legs, and questioned whether mother would be able to consistently take minor to appointments given her past failure to attend minor’s eye appointments. The report pointed to mother’s relapses when minor was not in her custody and questioned whether mother would be able to maintain her sobriety if left in charge of not only minor but also the new baby that was due in a few months. The report also noted that mother was living with minor’s maternal grandmother and the grandmother’s boyfriend, so minor would not be able to live at mother’s current residence given the boyfriend’s parole condition preventing him from living with children. The report concluded that the section 388 petition should be denied because “minor’s needs for permanency, emotional stability, consistency, security and a sense of belonging that her current caregivers provide greatly outweighs any possible parent/child relationship” between minor and mother.

Mother testified at the joint section 366.26 and section 388 hearing. She summarized her progress, and stated she had been sober for seven months. She stated that minor refers to her as “mommy” during visits. On cross-examination, she acknowledged that she had been living with father during the period immediately after her reunification services were terminated and had been planning to raise the new baby with him. She explained that she separated from him a few months before the current hearing. She also acknowledged having missed most of minor’s medical appointments during the dependency proceedings. She blamed her failure to attend on a lack of transportation, but acknowledged that she had never disclosed her transportation issues to anyone at the Department. The juvenile court denied the section 388 petition, terminated both parents’ parental rights, and freed minor for adoption by her aunt and uncle. The court focused on minor’s young age; the recency of mother’s sobriety and separation from father; and the strength of minor’s bond with her aunt and uncle.

• II. DIscussion

Mother argues the juvenile court should have granted her section 388 petition, and also that the court erred by finding the beneficial parent-child relationship exception to adoption inapplicable.

1. Section 388 Petition to Reestablish Reunification Services

Section 388, subdivision (a)(1) states, in relevant part: “Any parent ... may, upon grounds of change of circumstance or new evidence, petition the court ... to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.” To state a prima facie case for relief under section 388, the petition must show both a change in circumstances and that the proposed change to the prior order would be in the best interest of the child. (In re Marilyn H. (1993) 5 Cal.4th 295, 309–310.) The party who petitions under section 388 bears the burden to show by a preponderance of the evidence that changed circumstances make the requested relief in the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) And when, as here, the request is made after reunification services have been terminated, “the parents’ interest in the care, custody and companionship of the child are no longer paramount” and “there is a rebuttable presumption that continued foster care is in the best interests of the child.” (Ibid.) We review a juvenile court’s decision on a section 388 petition for abuse of discretion. (Id. at p. 318.)

We agree with mother that she demonstrated a change in circumstances. She had maintained sobriety since reunification services were terminated and she was taking positive steps (in the form of college classes, attending NA/AA meetings, etc.) to better herself. Though the juvenile court (and the Department on appeal) focused on the relatively short duration of mother’s sobriety to find that her circumstances were merely “changing” rather than changed, we find that the duration issue is more properly analyzed in the best interests context.

It is important to consider the procedural posture of the proceedings when mother filed the section 388 petition. Mother had received 14 months of reunification services, which was already more than the ordinary 12-month timetable for either returning a child or setting a section 366.26 hearing. (§ 366.21, subd. (e)(1).) And family reunification services could have been terminated as few as 120 days after the disposition hearing due to minor’s young age and mother’s missed visits and failed drug tests during the first few months after the disposition hearing. (§ 366.21, subd. (e)(3) [allowing juvenile court to set a section 366.26 hearing for child under three years of age on finding of “clear and convincing evidence that the parent failed to participate regularly and make substantive progress”].) Further, because mother filed the section 388 petition after services had been terminated, her “interest in the care, custody and companionship of [minor was] no longer paramount” and continued foster care was presumed to be in minor’s best interests. (Stephanie M., supra, 7 Cal.4th at p. 317.)

When considered in that context, mother has not shown an abuse of discretion. Mother made laudable progress in working to overcome the drug abuse and codependency issues that were the basis for the original jurisdictional finding. But that progress was quite recent, with mother submitting clean drug test results dating back only four months and mother having separated from father only a few months before the hearing on the section 388 petition. (Though mother argues based on her testimony at the section 388 petition hearing that she had been sober for seven months, the documentary evidence she submitted showed no drug test results earlier than the month of the 12-month review hearing.) And based on mother’s history throughout the dependency proceedings of making progress for a few months before relapsing and falling into old habits, the juvenile court could reasonably question whether mother’s recent changes would be permanent. The juvenile court could reasonably conclude that it was in minor’s best interests to remain in the consistent and loving placement where she had resided for the vast majority of her young life.

Mother discusses the factors identified in In re Kimberly F. (1997) 56 Cal.App.4th 519 (Kimberly F.): the seriousness of the problem that led to the dependency; the strength of the bond between parent and child on the one hand and the foster parent and child on the other; and the degree to which the problem that led to the dependency has been ameliorated. (Id. at p. 532.) We note that the Kimberly F. factors have been criticized in later opinions because they fail to “take into account the Supreme Court’s analysis in Stephanie M.” regarding the shift in focus once reunification services have been terminated. (In re J.C. (2014) 226 Cal.App.4th 503, 527; see also ibid. [“We instead follow the direction of our Supreme Court, holding that after reunification services have terminated, a parent’s petition for either an order returning custody or reopening reunification efforts must establish how such a change will advance the child’s need for permanency and stability.”].) And even assuming the factors apply, they support the juvenile court’s decision. As mother acknowledges, the substance abuse problems that triggered the dependency proceedings were serious. As to the bond between mother and minor versus the caregivers and minor, we note that mother and minor appear to have a good relationship. But minor had been living with her aunt and uncle for over 80 percent of her life; they told the social worker they “love [minor] and cannot imagine her living anywhere else”; and minor “indicate[d] through her behavior that she feels happy and secure in the home of her aunt and uncle.” Finally, we disagree with mother’s argument that “a fair reading of Mother’s circumstances at the time of the hearing on her section 388 petition was that Mother’s problem with drugs had been ameliorated.” As we have already discussed, a reasonable juvenile court could conclude that mother’s sobriety was too recent to assume it would be permanent.

2. Beneficial Parent-child Relationship Exception

“[T]he purpose of the section 366.26 hearing is ... to begin the task of finding the child a permanent alternative family placement.” (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 253.) “If the court determines, ... by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption.” (§ 366.26, subd. (c)(1).) An alternative to adoption (such as legal guardianship) may be appropriate if “[t]he court finds a compelling reason for determining that termination would be detrimental to the child [because] ... : [¶] (i) 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 burden is on the parent seeking to avoid termination of parental rights to produce evidence sufficient to support an exception. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey J.).)

An appeal challenging the juvenile court’s decision that the parental relationship exception to adoption does not apply involves two standards of review. Whether mother met the burden of producing evidence to support an exception to adoption is reviewed for substantial evidence. (Bailey J., supra, 189 Cal.App.4th at p. 1314.) Because “a challenge to a juvenile court’s finding that there is no beneficial relationship amounts to a contention that the ‘undisputed facts lead to only one conclusion,’ ” (ibid., quoting In re I.W. (2009) 180 Cal.App.4th 1517, 1529 (I.W.)), mother can succeed in a substantial evidence challenge only upon a showing that “the evidence compels a finding in favor of the appellant as a matter of law.” (I.W., at p. 1528.) And even if such a showing is made, the juvenile court retains discretion to terminate parental rights and order adoption if it finds that the evidence supporting the exception was not “a compelling reason for determining that termination would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B).) As determining whether the relationship is a compelling reason is “ ‘a quintessentially discretionary decision,’ ” we review that component of the juvenile court’s decision for an abuse of discretion. (Bailey J., at p. 1314, quoting In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) As the Department does not dispute that mother maintained regular visitation, we focus on the nature of mother’s relationship with minor.

We acknowledge that mother appears to have a positive relationship with minor, even if it is not perfect. As mother notes, the visitation logs in the record documented appropriate behavior during visits. But even if we assume a positive relationship is enough to show a beneficial relationship as a matter of law, the juvenile court has discretion to decide whether the relationship presents a compelling reason to determine that terminating parental rights would be detrimental to minor. (Bailey J., supra, 189 Cal.App.4th at p. 1314.) The juvenile court here was presented with a very young child who had spent most of her life in the care of a loving aunt and uncle. The Department’s response to mother’s section 388 petition stated that minor had “become attached to her aunt and uncle and she responds to them as her parents”; the Department opined that minor saw them as her “psychological parents.” Mother’s engagement in services throughout the dependency proceedings was inconsistent, and her sobriety at the time of the section 366.26 hearing was still in its early stages. It is also important to note that because minor’s caregivers are mother’s relatives, termination of mother’s parental rights does not mean she must lose contact with minor. Though mother’s relationship with her brother (minor’s uncle) had apparently been strained during “her struggles with making poor choices,” the Department’s section 366.26 report expressed hope that mother and her brother would “be able to repair their relationship so that all parties will benefit going forward.”

Mother’s appellate arguments do not persuade us that the juvenile court abused its discretion. She argues that because minor apparently enjoyed visits with mother, termination of parental rights “harmed [minor] and was to her detriment.” But the perceived harm to minor is speculative as mother points to no evidence in the record that minor ever expressed any emotional distress at the end of any visit with mother. To the contrary, the section 366.26 report stated minor “is not upset when [mother] ends the visit as the child does not look to [mother] as a parent, but instead has a visiting relationship with her.”

Mother argues that the extent and frequency of her visits with minor was outside her control. But until reunification services were terminated, mother was given opportunities to have more frequent and even unsupervised visits. Mother squandered those opportunities by repeatedly relapsing.

Mother argues terminating parental rights was detrimental to minor because mother was “ ‘doing all things possible to reunify’ ” with minor. But the problem with mother’s efforts is that her only substantial progress occurred after reunification services had been terminated. It bears repeating that because minor was only four months old when she was detained, she had spent over four-fifths of her life in the aunt and uncle’s home by the time of the section 366.26 hearing.

Mother contends this case is factually similar to others where courts have found a beneficial parent-child relationship exception to adoption, but those cases are distinguishable. In re S.B. (2008) 164 Cal.App.4th 289 (S.B.) involved a father who was the minor’s primary caregiver for the first three years of her life and who “ ‘complied with every aspect of his case plan’ ” during the 12 months of dependency proceedings initiated because of the father’s substance abuse. (Id. at pp. 293, 298–300.) Mother’s multiple lapses in participation and minor’s far younger age make the instant case quite different from S.B.

In re Amber M. (2002) 103 Cal.App.4th 681 (Amber M.) involved a sibling group detained because the youngest child almost drowned when the mother left her unsupervised in a bathtub full of water at seven months old. (Id. at p. 684.) The mother struggled with substance abuse and relapses during the reunification period, but by the time of the section 366.26 hearing the mother had been sober for over 11 months. (Id. at p. 685.) Studies assessing the bond between the mother and her children showed a strong parental attachment and evidence that the middle child “had difficulty separating from her.” (Id. at p. 689.) Even the youngest child was “very strongly attached” to the mother. (Id. at p. 690.) In concluding the juvenile court erred by not applying the beneficial parent-child exception to adoption, the appellate court reasoned that the “common theme running through the evidence from the bonding study psychologist, the therapists, and the [court appointed special advocate] is a beneficial parental relationship that clearly outweighs the benefit of adoption.” (Ibid.) But the record here does not contain evidence similar to the “strong primary bond” the mother in Amber M. had with her children. (Amber M., supra, 103 Cal.App.4th at p. 690.) As we have noted, the section 366.26 report stated that minor “is not upset when [mother] ends the visit as the child does not look to [mother] as a parent, but instead has a visiting relationship with her.”

Mother also compares this case to In re Brandon C. (1999) 71 Cal.App.4th 1530 (Brandon C.), an appeal by a child welfare agency from a juvenile court’s decision to apply the beneficial parent-child relationship exception and order legal guardianship. That the juvenile court’s decision in that case to apply the exception was not an abuse of discretion does not mean that the juvenile court’s contrary decision here on a different set of facts was an abuse of discretion. (California Building Industry Association v. State Water Resources Control Board (2018) 4 Cal.5th 1032, 1043 [“It is axiomatic that cases are not authority for propositions that are not considered.”].) And Brandon C. is factually distinguishable because in that case the caregiver (the paternal grandmother) was elderly, had multiple health problems, and told the court she “did not think it would be in the boys’ best interest to terminate their relationship with the mother and father.” (Brandon C., at p. 1533.) There is no indication here that minor’s aunt and uncle have any similar barriers to caring for minor.

Mother has failed to show that the juvenile court abused its discretion by terminating her parental rights and not applying the beneficial parent-child relationship exception to adoption.

• III. Disposition

The order terminating parents’ parental rights and freeing minor for adoption is affirmed.