In re B.A.





















Filed 5/8/13 In re B.A. CA6











NOT
TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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.





IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SIXTH APPELLATE DISTRICT




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In re B.A., a Person Coming Under the Juvenile Court Law	H038644 (Monterey County Super. Ct. No. J44598)
MONTEREY COUNTY DEPARTMENT OF SOCIAL AND EMPLOYMENT SERVICES, Plaintiff and Respondent, v. G.M., Defendant and Appellant.

G.M. is the mother of B.A., a now three-year-old
girl. She appeals from the juvenile
court’s orders (1) denying her request under Welfare and Institutions Code
section 388href="#_ftn1" name="_ftnref1"
title="">>[1] to modify prior determinations and
(2) terminating her parental rights under
section 366.26. She claims that the
court abused its discretion in denying her modification request to place B.A.
with her maternal grandmother S.M. and then terminating G.M.’s parental rights
and finding B.A. suitable for adoption.

We find no errors and will affirm the orders.

FACTS AND PROCEDURAL BACKGROUND

B.A. was born with
methamphetamine in her system on December 26, 2009, to G.M. and a father whose identity has never
been learned. The href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Monterey
County Department of Social and Employment Services (Department) filed a
section 300, subdivision (b) (failure to protect) juvenile dependency petition
on her behalf, detained her at the hospital, and placed her with a foster mother,
C.B.

The Department had taken the
same action with B.A.’s sibling C.J. in 2006, when he was two months old, as
soon as it learned that he, too, had methamphetamine intoxication at
birth.

At the time the events
surrounding B.A.’s birth were unfolding, G.M. suggested that B.A. could be
placed with G.M.’s mother S.M.

A jurisdiction and
disposition report dated January 26, 2010, stated that S.M. had contacted the Department
expressing interest in caring for B.A.
On January 26, 2010, S.M.
met with two social workers and denied that G.M. was living at her home. S.M. was,
according to the report, “very vocal in her objections to the Department’s plan
to offer reunification services to her daughter,” although the report does not
explain why.

The Department declined to
place B.A. with S.M. It found S.M. to be
obdurate and unyielding, describing what it viewed
as “her adversarial relationship with her daughter; her stated unwillingness to
support the reunification process; her adversarial relationship with the
Department; and her work schedule[,] which does not permit flexibility to allow
her to attend mandatory trainings, participate in . . . clinic
appointments, or [provide] transportation [for] her daughter’s weekly visits
with [B.A.].”

On March 5,
2010, the juvenile
court held a jurisdiction and disposition hearing. It found the petition allegations true,
declared B.A. a dependent of the court, and ordered reunification services for
G.M.

For almost a year and a
half, things went reasonably well.
Custody of B.A. was returned to G.M. in December of 2010. A status report dated August 31,
2011, noted that G.M.
and B.A. had stable housing, G.M.’s outpatient drug treatment was going well,
and G.M.’s finances were reasonably in order.
The Department recommended that the juvenile court end its jurisdiction
over B.A.

On September
21, 2011, however, the
reporting social worker informed the juvenile court that G.M. had admitted
relapsing into drug use in recent months.
The court held a semiannual review hearing. As a Department summary of that hearing
described, the court decided that B.A. could remain in G.M.’s care and ordered
family maintenance services. But it
warned G.M. that “if the child had to be removed from her care, she would have
no additional time for reunification services as she had exceeded the statutory
time limit.”

Circumstances did not
improve. The Department filed a section
387 (supplemental) petition on November 1, 2011. It had
received an allegation that G.M. was associating with drug users. She tested positive for methamphetamine and
was arrested for violating her probation.
On November 8, 2011, B.A. was again placed with her prior foster
mother, C.B.

At a jurisdiction and
disposition hearing on the section 387 petition, held on January 4, 2012, G.M.’s counsel suggested that it was unclear
what efforts the Department had made to contact S.M. in order to evaluate her
for potential relative placement. The
court asked the Department to undertake that task. The court again declared B.A. a dependent of
the court and denied G.M. reunification services on the ground that she had
exceeded the statutory time limit for receiving them.

About three months later, in
April of 2012, the Department completed an evaluation of S.M. for placement. It had begun work on that evaluation no later
than March 9. The evaluation noted
that S.M. rented a tiny but
orderly home, had worked as a grocery store clerk for more than 25 years, had
no criminal record, and declared that she did not use alcohol or
narcotics. But the report also described
countervailing factors. It noted the
existence of a strong bond between B.A. and C.B., the foster mother. Meanwhile, S.M. wanted to attend college; had
a varied work schedule; was focused on her work, church activities, socializing
with friends, and visiting her many grandchildren; had to take some five months
off from work following a tropical mosquito bite that may have interacted with
her childhood rheumatic fever, after which she acquired a fear of germs and
people who may be ill; and because of her job she might not be able to attend
adoption classes or participate in B.A.’s weekly therapy sessions
consistently.

In April of 2012, the
Department sent S.M. a letter containing its conclusion that placing B.A. with
her would not be in B.A.’s best interests.
The Department thought it inadvisable for B.A. to have yet another
placement, which would mean four placements in two years, although two would
have been with C.B., the foster mother.
It questioned whether S.M. could participate in the therapy B.A. needed—sessions in which B.A. was struggling to
make headway—because of S.M.’s variable
and relatively inflexible work schedule.


On June 7, 2012, G.M.
filed the section 388 (modification) petition that forms part of the basis for
this appeal, asking the juvenile court to change its order and to order
placement with a relative. G.M. alleged
the Department had failed to contact S.M. within a reasonable time regarding placement
and, substantively, had failed to consider S.M. for placement with sufficient
thoroughness and objectivity. G.M. and
S.M. both executed declarations stating that they wanted B.A. to be in S.M.’s
care.

The Department replied in
its papers that on December 1, 2011, Kathryn Richards, one of the social
workers on the case, left a voicemail message with S.M. about the possibility
of placing B.A. with S.M. S.M. did not
call back and later complained to another social worker, Vera Chambers, that no
one had contacted her regarding placement.


At a hearing on the section
388 petition, G.M.’s counsel argued
that an evidentiary hearing, if allowed, would show that the Department
improperly delayed investigating S.M.’s suitability for placing B.A. with her,
in violation of statutory requirements, and that G.M., S.M. and B.A. had been
prejudiced by the Department’s delay.
Counsel for the Department observed that, even if late, the evaluation
was completed and concluded that placement with S.M. was not in the child’s
best interest.

The
juvenile court noted that it must receive indications of a “substantial and
permanent” change in order to grant a section 388 petition and inquired of
G.M.’s counsel what change he meant—the fact that the Department “didn’t move
right after January 4th[, 2012,] to consider the maternal grandmother [S.M.] or
something else?” G.M.’s counsel
responded that when B.A. was removed on November 8, 2011, G.M. asked for
placement with S.M. and the Department made only one courtesy call to S.M.,
failing to provide written notice and essentially paying little heed to the
idea of placing B.A. with S.M. Counsel
argued that the Department’s delay in evaluating S.M. was a newly discovered
circumstance warranting relief under section 388.

The
juvenile court noted that the Department’s failure allegedly occurred on
November 8, 2011, and the section 388 petition was not filed until June 7,
2012. Counsel responded that the court
had asked the social worker to try contacting S.M. again at the hearing on
January 4, 2012, but no evaluation began until late February or early
March.

The juvenile court decided
to proceed with an evidentiary hearing.

Vera Chambers, one of the
social workers assigned to the case, testified that G.M. had called her toward
the end of January, shortly after her release from prison, to inquire about
relative placement with S.M. The social
worker contacted S.M. on February 10, 2012.
She further testified that, in her view, placing B.A. with S.M. would
constitute the fourth move for B.A. and would not be in B.A.’s best
interest.

Heather Molitor, the social
worker initially assigned to B.A.’s case, testified that although “it’s always
best to place with families” when feasible, when she met with G.M. in jail on
November 8, 2011, she said nothing about placement with S.M. Nor did S.M. ever call her about having B.A.
placed in S.M.’s care. At one point Molitor called S.M. to discuss
the logistics of retrieving G.M.’s belongings from the facility in which she
was living before her incarceration, and at that time S.M. “never mentioned
anything about placement.”

G.M. testified that she
signed a voluntary placement document for B.A. in jail. But she thought the placement would be
temporary and had asked for B.A. to be placed with S.M. She had made the same request of social
worker Kathryn Richards.

S.M. testified that G.M. had
called her on the day she was arrested, i.e., November 8, 2011,
instructing her to retrieve B.A. from foster care, but she was unable to reach
Molitor. Molitor called her on or about
November 15, 2011, and said she could not have custody of B.A.

The juvenile court
remonstrated with the Department about its lack of speed in evaluating S.M. but
found no substantial change in circumstances and noted G.M.’s own delay in
filing the section 388 petition, so it denied the petition. On June 13, 2012, it held a section 366.26
hearing. It found B.A. to be generally
and specifically adoptable and terminated G.M.’s parental rights.

DISCUSSION

As
noted, G.M. claims that the juvenile court abused its discretion in denying her modification request under section 388. She also argues that if we reverse the
section 388 order, then the court’s order terminating her parental rights under
section 366.26 must also be reversed as a necessary consequence of reversing
the section 388 order.

We review a juvenile court’s
ruling on a section 388 request for abuse of discretion. (In re
Jasmon O. (1994) 8 Cal.4th 398, 415-416.) To find an abuse of discretion in a
dependency case, the reviewing court must be persuaded that the lower court’s
ruling fell outside the bounds of reason.
(In re Stephanie M.
(1994) 7 Cal.4th 295, 318-319.)

G.M. argues that the
juvenile court wrongly applied section 388 by asking only about whether
circumstances had changed and not also considering whether she had presented
new evidence that the Department had acted slowly in considering her mother
S.M. as a suitable person with whom to place B.A.

Subdivision (a)(1) of
section 388 provides in pertinent part:
“Any parent . . . may,
upon grounds of change of circumstance or new evidence, petition the court in
the same action in which the child was found to be a dependent child . . . for a hearing to
change, modify, or set aside any order of court previously made or to terminate
the jurisdiction of the court.”

Thus, a juvenile court may
consider not just a change in circumstances, but also new evidence. “[A] petition pursuant to section 388 remains
an available mechanism by which to modify the juvenile court’s previous orders,
given some sufficiently compelling new evidence or change of circumstances.” (>Renée J. v. Superior Court
(2001) 26 Cal.4th 735, 750.) In
general, section 388 is “broad in scope.”
(In re A.C. (2010) 186
Cal.App.4th 976, 978.)

As noted, G.M. argues that
the juvenile court applied section 388 too narrowly, failing to consider her
presentation in court as relating to newly discovered evidence as well as a
change in circumstances. “A
discretionary order based on the application of improper criteria or incorrect
legal assumptions is not an exercise of informed discretion and is subject to
reversal even though there may be substantial evidence to support that
order.” (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 26, italics deleted.)

G.M.’s
reading of the juvenile court’s action is, however, too narrow. It is true that in a memorandum accompanying
her section 388 petition G.M. stated that “a change in circumstance >or new evidence now requires a change in
previous Orders . . . .”
(Emphasis in original.) Thus, the
scope of G.M.’s request charged the court with considering any new
evidence. It is also true that the court
mentioned the changed circumstances question and did not expressly mention the
new evidence question. But the court
commented on the latter consideration when it summarized the following
evidence: “[S.M.] originally asked for
placement after [B.A.’s] birth and was denied placement. She did not appeal the decision and has not
requested placement since [B.A.’s] most recent removal
. . . . [¶] There was no contradictory evidence provided
to the Court at that time [i.e., of the most recent removal, which was
November 8, 2011], and it was not until this [section 388] petition was
filed almost six months later that the issue has come before the court.” The last portion of these remarks is directed
to the question whether the proffered evidence was newly discovered, even if
the court did not use those words. The
court’s awareness of the issue is evinced by its question earlier during the
proceeding, when it asked counsel for G.M., “why didn’t you file something [in]
mid-March?” This colloquy makes clear that the court heard and considered G.M.’s
concerns regarding the timing of the Department’s evaluation of S.M. for
placement, and it questioned whether the evidence could be considered newly
discovered. Thus, we see no basis to
reverse the court’s section 388 determination.

Underlying G.M.’s section
388 claim are assertions that (1) the Department’s stated reasons for refusing
to place B.A. with G.M. were pretextual or are unsupported by substantial
evidence and (2) the juvenile court erred by relying in part on the
Department’s prior refusal, in 2010, to place B.A. with S.M.

On the first point, G.M.
argues that only two homes were involved:
that of the foster mother, C.B., and her own. But B.A. had already had three separate
living arrangements in her short life and would have faced a fourth. G.M. also argues that the Department could
not have erroneously refused to house B.A. with S.M. and then use that prior error
to justify refusing the arrangement now.
The original denial, however, was supported by information about S.M.’s
difficult personality (ante, p. 2). G.M. also
disputes the Department’s and the juvenile court’s conclusion that S.M. would
not be the appropriate person to parent B.A. and attend to her special needs,
but provides no convincing rationale for overturning the court’s determinations
regarding the Department’s evaluations of S.M.

As to the second point, as
noted ante, page 2, one reason the Department declined to place B.A. with
S.M. in 2010 was that S.M. did not support reunification of G.M. with B.A. G.M. argues that because this consideration
no longer exists, the juvenile court was wrong to rely on the Department’s 2010
opinion. That consideration was,
however, only one of many. In general, a
juvenile court should consider the entire record before it and take history
into account in deciding cases, which is what the juvenile court appropriately
did here. Thus, these arguments fail to advance G.M.’s cause.

Nor
is there any reason to disturb the juvenile court’s determination that B.A.
should be freed for adoption and G.M.’s parental rights terminated. First, G.M. rests her section 366.26 claim on
a predicate that we will be reversing the court’s section 388 determination,
which we are not. Second, no independent
reason appears in the record to overturn the section 366.26 decision.

With
regard to dispositions in juvenile dependency cases, the best interest of the
child controls. (In re Fernando M. (2006) 138 Cal.App.4th 529, 534.) Adoption is the preferred alternative. (§ 366.26, subd. (b).) As stated in In re Josue G., “ ‘The permanent plan preferred by the
Legislature is adoption. [Citation.]’
[Citation.] ‘ “The
Legislature has decreed . . . that guardianship is not in the best
interests of children who cannot be returned to their parents. These children can be afforded the best
possible opportunity to get on with the task of growing up by placing them in
the most permanent plan and secure alternative that can be afforded
them.” ’ ” (>In re Josue G. (2003) 106
Cal.App.4th 725, 732.)

“[U]ntil the time the
section 366.26 hearing is set, the parent’s interest in reunification is given
precedence over the child’s need for stability and permanency.” (In re
Marilyn H. (1993) 5 Cal.4th 295, 310.)
However, “[o]nce reunification services are ordered terminated, the
focus shifts to the needs of the child for permanency and stability.” (Id.
at p. 309.) “Adoption must be selected as the permanent plan for an adoptable child
and parental rights terminated unless the court finds ‘a compelling reason for
determining that termination would be detrimental to the child due to one or
more of the following circumstances:
[¶] (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).) ‘[T]he burden is on
the party seeking to establish the existence of one of the section 366.26,
subdivision (c)(1) exceptions to produce that evidence.’ [Citation.]”
(In re Bailey J.
(2010) 189 Cal.App.4th 1308, 1314.)

The
record in this case does not establish the existence of a beneficial parental
relationship that would provide a compelling reason to overcome the preference
for adoption. As noted in other cases,
“[i]f 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.) “The factors to
be considered when looking for whether a relationship is important and
beneficial are: (1) the age of the
child, (2) the portion of the child’s life spent in the parent’s custody, (3)
the positive or negative effect of interaction between the parent and the child,
and (4) the child’s particular needs.” (In re Bailey J., supra,
189 Cal.App.4th at p. 1315.) To
qualify for the exception, appellant had to do “more than demonstrate ‘frequent
and loving contact’ [citation], an emotional bond with the child, or that [she]
and [her] child find their visits pleasant.
[Citation.] Rather, [she] must
show that [she] occup[ies] ‘a parental role’ in the child’s life.” (In re
Andrea R. (1999) 75 Cal.App.4th 1093, 1108.) The parent-child relationship must “promote[] 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.” (>In re Autumn H., supra, at p. 575.)

Not
only does the record fail to show that B.A. would be “greatly harmed” (>In re Autumn H., >supra, 27 Cal.App.4th at p. 575) by
terminating G.M.’s parental rights, but all of the evidence is that B.A.’s ties
to her mother were tenuous, marked at times by G.M.’s need to attend to the
consequences of her substance abuse
problem. There are two aspects to
the foregoing. The first aspect is
chronological: B.A. had been separated
from G.M. for substantial periods of time.
Between B.A.’s birth in December of 2009 and December of 2010, B.A. was
not in her mother’s care. She then stayed
with her mother for about 11 months, but was then removed for urgent
reasons. The second aspect is
affectational: B.A. was bonded to her
foster mother, C.B., and in March, 2012, after the turmoil in B.A.’s life had
had its effects, a visit with G.M. was not notably successful.href="#_ftn2" name="_ftnref2" title="">[2] From all that appears, G.M. did not occupy a
parental role in B.A.’s life. (>In re Andrea R., >supra, 75 Cal.App.4th at p. 1108.)

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CONCLUSION

The orders are affirmed.









______________________________________

Márquez,
J.











WE CONCUR:











______________________________________

Elia,
Acting P. J.











______________________________________

Bamattre-Manoukian,
J.