NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Dora F. (mother) appeals from the juvenile dependency court's orders denying her petition to change the court's prior rulings pursuant to Welfare and Institutions Code section 388,
PROCEDURAL AND FACTUAL SUMMARY
On December 29, 2014, a petition on behalf of A.J. was filed by the Fresno County Department of Human Services (department) pursuant to section 300, subdivision (b) alleging A.J. was at risk of harm because mother tested positive for methamphetamine and marijuana and mother had a history of substance abuse. The petition further alleged pursuant to subdivision (j) of section 300 that mother had received reunification services in 2009 following general neglect of two older siblings, failed to comply with services, and in 2012 had her parental rights terminated as to those siblings. A.J. was detained on December 30, 2014.
When mother tested positive for methamphetamine and marijuana after the birth of A.J., social worker Bee Xiong received a referral on concerns of general neglect. A jurisdiction/disposition report was prepared in January 2015. Mother admitted using drugs just prior to A.J.'s birth. Mother told Xiong she received little prenatal care. At the team decision meeting just prior to the filing of the petition, mother attended with two maternal aunts, including Leonor B. (the aunt). Xiong informed mother there would be a hold placed on A.J. at the hospital and a dependency petition would be filed.
Xiong's report noted mother lost custody and parental rights as to A.J.'s two older siblings due to mother's ongoing substance abuse. Mother first had reunification services in 2009 and participated in counseling services but declined to continue her participation after receiving recommendations to address problems related to significant losses in her life. Mother failed to show she could remain clean and sober. She recently started new services with Fresno New Connections. Mother told social workers she wanted to reunify with her children, was willing to complete any services, and understood she needed to change her behaviors and lifestyle.
On December 26, 2014, a home approval application was submitted on behalf of the maternal great aunt. A message was left for the family to follow up with the department on January 13, 2015, and a contact letter was subsequently mailed. On January 16, 2015, mother did not indicate having any additional relatives to apply for A.J.'s placement. A family finding referral was submitted on behalf of A.J. on January 20, 2015. A.J. was placed in a licensed foster home and her care provider indicated she was interested in adopting A.J.
Xiong set forth three reasons why the court should deny mother reunification services. Pursuant to subdivision (b)(10) of section 361.5, mother failed to reunify with A.J.'s two older siblings after being ordered to complete reunification services. Mother failed to follow through with substance abuse treatment and counseling. Under subdivision (b)(11) of section 361.5, mother failed to show an ongoing change in her lifestyle after the termination of her parental rights for the two older children and the present dependency for A.J. Under section 361.5, subdivision (b)(13), mother had an extensive and chronic history of drug abuse and had not demonstrated a significant period of continuing sobriety. The department recommended the detention of A.J.
The joint jurisdiction/disposition hearing was conducted on March 17, 2015. Mother testified concerning the frequency and quality of the prenatal care she received during her pregnancy. Mother had attended parenting classes and had begun the Fresno New Connections outpatient drug treatment program the first week of January 2015. Mother started counseling, submitted to drug testing, and visited A.J. Mother's counsel told the court the aunt's referral had been closed by the department. The department's counsel represented to the court the department followed up on this point, but the matter was closed because the aunt did not comply with and complete a home approval packet. A social worker made several attempts to contact the aunt, but the relative failed to respond to the social worker or a supervisor. No evidence was presented on the suitability of the aunt as a caregiver.
The juvenile court found the allegations in the petition to be true by clear and convincing evidence. The court found mother's progress had been minimal. The court granted mother supervised visitation with the minor. Because the bypass allegations alleged pursuant to subdivision (b)(10), (b)(11), and (b)(13) of section 361.5 were found true, the court denied mother reunification services. The court set the matter for a permanency planning hearing pursuant to section 366.26. Mother was advised of her right to file a writ petition with this court. Mother filed a notice of intent to file a writ petition. Mother did not file a writ petition in case No. F071222, and this court dismissed her case on April 29, 2015.
Section 388 and 366.26 Proceedings
On May 12, 2015, mother filed a petition to change the trial court's order pursuant to section 388. Mother sought reunification services alleging her circumstances had changed because she had completed the Fresno New Connections intensive treatment program and parenting classes. Mother also tested drug-free between February and May of 2015, although she failed to show for testing on April 30, 2015. Mother was in a stable living arrangement for over a year. Mother stated she was still requesting A.J.'s placement with the aunt. Mother also filed a brief with the juvenile court alleging the beneficial parent-child relationship exception to termination of parental rights applied to her relationship with A.J.
The permanency planning hearing was continued a number of times between June 2015 and February 2016. The original permanency planning report by the department was prepared in June 2015. Mother, the aunt, and A.J.'s siblings maintained regular visitation with A.J. Mother and the aunt acted appropriately during visits. The aunt told the social worker she had been informed her home was approved for A.J.'s placement as of April 24, 2015. The social worker told the aunt she needed to forward the appropriate paperwork to the department and would be legally responsible for A.J. should the baby be placed in her care. The aunt said she wanted to provide a permanent plan of legal guardianship for A.J.
The social worker noted A.J.'s current caregivers had indicated they sought a permanent plan of adoption for her and considered A.J. as their daughter. At the time of the assessment, A.J. was five months old, always smiling and laughing, was emotionally and physically healthy, and was generally adoptable. The caregivers provided A.J. with excellent structure on a daily basis, including a regular schedule for resting, eating, and bathing. They also provided A.J. with a loving environment. The caregivers also provided A.J. with excellent engagement necessary to stimulate her growth.
Mother supplied nurturing and provided for A.J.'s basic needs during supervised visits. Mother, however, was unable to provide for A.J.'s ongoing care and well-being on a daily basis. The department concluded that although mother was beginning to make progress in outpatient drug treatment services, she had a long history of drug addiction and abuse going back to 2003 and had failed in prior reunification efforts. The department recommended termination of mother's parental rights with a plan of adoption with A.J.'s current caregivers.
In March 2016, the department prepared an addendum report addressing mother's section 388 petition. The department noted its disagreement to placement of A.J. with the aunt because she only sought to pursue a plan of legal guardianship while the caregivers sought to adopt her. The report noted A.J. was thriving under the care of her foster family and had been placed with them when she was under one week old. The caregivers had an approved adoption home study from their recent adoption of a son, and they completed their adoption application in February 2016.
The addendum report stated that although mother had provided a certificate indicating she completed the outpatient substance abuse program in May 2015, mother had not provided documentation of continuing sobriety. As of September 29, 2015, mother had seen a therapist in four therapy sessions, but thereafter had not seen a therapist. There was home approval for the aunt to be a caregiver to A.J. in April 2015, but the aunt sought to pursue a permanent plan of legal guardianship. The department concluded A.J. had bonded with her current caregivers, who sought to adopt her, and further that A.J.'s relationship with her mother did not outweigh A.J.'s relationship with her caregivers. The department did not revise its earlier recommendations to the juvenile court to find A.J. adoptable, to terminate mother's parental rights, and to set a permanent plan of adoption.
The juvenile court conducted a joint hearing on mother's section 388 petition and the permanency planning hearing pursuant to section 366.26 on March 8 and March 18, 2016. Mother admitted A.J. tested positive for methamphetamine when she was born. Mother stated she completed the outpatient drug treatment program, attended Narcotics Anonymous (NA) meetings, and took a parenting class. Mother's sobriety date was the date of A.J.'s birth, a little more than a year prior to the hearing. Although mother was initially undergoing drug testing, she could not remember the last time she tested. Mother attended NA meetings two or three times a week.
Mother went to therapy three times, but her therapist left the program and there was no other therapist available. Mother could not afford her own therapist. Mother had her own residence and explained she had strong family support. Mother said she benefited from the parenting class she completed. At first, mother visited A.J. twice a week. Later, she visited A.J. twice a month. During visits, mother fed, changed, walked with, and played with A.J.
Miguel Cuevas monitored mother's visits with A.J. Mother was affectionate with A.J., hugging and kissing her, and A.J. at times returned mother's affection. Mother was attentive, nurturing, and always appropriate with A.J., engaging her with verbal praise.
Mother's niece, Destiny F., lived with mother along with Destiny's son and boyfriend. When mother was using drugs, she was absent from the home. Destiny F. believed she would be able to assess whether mother was using drugs. For close to two years, mother has been spending time at home and was happier and healthier than before. Destiny F. had observed mother's visitations with A.J. and believed the two were forming a bond.
Tse Yang was a social worker involved with A.J.'s case since it was transferred to the adoption assessment unit, over one year. Yang was a case manager in the assessment unit. Yang explained the aunt wanted a legal guardianship over A.J. without dependency. The department, however, has a responsibility to assess the most permanent plan for a child. Until April 2015, Yang was considering the aunt for A.J.'s placement. After a home is approved for placement, the department still has to assess the abilities and capabilities of the person seeking placement.
The aunt only sought legal guardianship over A.J., and this was one of the reasons A.J. was not placed there. There were also concerns regarding whether the aunt would be able to protect A.J. from mother. The aunt told social workers that after obtaining legal guardianship without dependency, she "would eventually return the child to" mother. Yang believed this demonstrated the aunt lacked a full commitment to A.J.'s welfare knowing mother had not completed all the things she needed to do to demonstrate she was an appropriate parent. If mother failed to pull herself together, Yang was concerned the aunt may not be able or willing to continue to provide for A.J.
In reviewing the social worker assessments of the bond between mother and child, Yang believed mother's relationship appeared "to be more of a friendly visitor relationship." When a parent does not have a child in day-to-day care, it is difficult for the parent to satisfy the department that the parent has a sufficient bond with the child. In this case, A.J. had not been in mother's care since her birth and did not recognize mother as her parent. A.J. looked at her caregivers as her parents.
The aunt testified she was mother's aunt and met A.J. in the hospital shortly after her birth. The aunt notified social workers in the hospital she was interested in caring for the baby. The aunt took a home placement class in a community center. The aunt was sent two letters stating she had been approved for placement. Social workers told the aunt about the difference between guardianship and adoption, but the aunt did not quite understand. The department never informed the aunt that if she chose guardianship, she would not get placement of A.J. with her.
The aunt explained she would have chosen adoption if she had understood the difference between the two options. Also, the aunt chose guardianship because she believed mother could still reunify with A.J. The aunt still wanted to adopt A.J., if possible. The aunt visited A.J. once a month, with mother and also by herself. The aunt had 10 visits with A.J. when mother was present. The visits were typically an hour. The aunt thought mother interacted well with A.J.
The juvenile court found mother failed to demonstrate it would be in the child's best interests to be placed with mother based on the beneficial parent-child relationship exception to termination of mother's parental rights. Mother had never cared for her child, the child was of tender years, and mother had a very long history of substance abuse.
As for placement of A.J. with her aunt, the court initially noted section 361.3, subdivision (c)(2) permits the placement of a child with a relative within the fifth degree of kinship, including relatives whose title is preceded with "great." The court noted only adult grandparents, aunts, uncles, and siblings have preferential consideration for placement.
The juvenile court found credible the evidentiary statement by the aunt earlier in the proceedings that the aunt's original desire was to maintain a relationship between mother and child through a guardianship. The court found the aunt did not establish a familial relationship with the child. Placement with the caregivers had been secure for a long time and the aunt did not have significant exposure to A.J., although she did visit her many times for one hour intervals 40 or so times. The court observed the aunt wanted to keep a relationship between the child and mother and to follow a guardianship option. The court ruled it was not in the best interests of the child to be placed with the aunt, and the court denied the section 388 petition in its entirety.
The court found A.J. adoptable. The court did not find the beneficial relationship exception applicable to this case due to the long-standing commitment by the caregivers. The court noted mother did exercise her visitation rights and engaged with A.J. nurturingly and appropriately. This did not overcome mother's exposure of A.J. to drugs in utero or mother's history in the dependency system with her older children. The court concluded mother was not prepared emotionally for a parent-child relationship or day-to-day care of the child. The court held mother did not meet the beneficial relationship standards of showing the benefit of maintaining the parent-child relationship outweighed the permanence and stability provided by adoption. The court terminated mother's parental rights.
1. Petition to Modify Custody Order
Mother contends the juvenile court erred in denying her section 388 petition to modify the juvenile court's custody order to place A.J. with the aunt. Mother argues the department wrongfully denied an approved relative's placement request when A.J. was only four months old, and the aunt was entitled to preferential placement consideration. The department replies mother's contention does not pass the threshold query of whether there had to be a change in the minor's placement. We reject mother's contention.
Any party to a dependency proceeding may petition the court to modify or set aside a prior order on the grounds of change of circumstance or new evidence. (§ 388, subd. (a)(1).) The party must also show the proposed change would promote the child's best interest. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Section 388 provides a means for the court to address a legitimate change of circumstances, even at the permanency planning stage, while protecting a child's need for prompt resolution of his or her custody status. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
In considering a section 388 petition to modify the prior order of the juvenile court, the court may consider the entire factual and procedural history of the case. The court may also consider factors such as the seriousness of the reason leading to the child's removal, the reason the problem was not resolved, the passage of time since the child's removal, the relative strength of the bonds with the child, the nature of the change of circumstance, and the reason the change was not made sooner. (In re Mickel O. (2011) 197 Cal.App.4th 586, 616 (Mickel O.).) In assessing the best interests of the child, primary consideration is given to the goal of assuring stability and continuity. (Id. at p. 616, citing In re Stephanie M., supra, 7 Cal.4th at p. 317.)
We review the juvenile court's denial of a section 388 petition for an abuse of discretion. The court exceeds the limits of legal discretion by making an arbitrary, capricious, or patently absurd ruling. The test for abuse of discretion is whether the court exceeded the bounds of reason. When two or more inferences can reasonably be drawn from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. (Mickel O., supra, 197 Cal.App.4th at p. 616, citing In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
Under this standard of review, the juvenile court did not abuse its discretion in ruling the evidence failed to establish that placing A.J. with the aunt would be in the child's best interests. Mother presents a lengthy argument regarding the statutory preference for relative placement. These arguments, however, were procedurally relevant during the jurisdiction/disposition phase of the proceedings. During the joint jurisdiction/disposition hearing on March 17, 2015, no issue was raised and no evidence was presented concerning A.J.'s placement with her caregivers or the aunt's suitability for placement. Mother's counsel presented a lengthy argument to the court as to why the bypass provisions of section 361.5, subdivision (b) should not apply to mother. Mother's counsel reviewed mother's voluntary enrollment in services. Mother presented no argument concerning placement of A.J. with the aunt. Although mother filed a notice of her intent to file a writ petition with this court after the jurisdiction/disposition hearing, nothing was filed and her writ review before this court was dismissed. Neither mother nor the aunt actively challenged A.J.'s placement with nonrelative caregivers during the initial stages of this proceeding.
Mother filed her section 388 petition on May 12, 2015, two months after the jurisdiction/disposition hearing, but did not pursue a hearing on her petition until after it was consolidated with the permanency planning hearing. The joint hearing was not heard until March 8, 2016. As the department correctly points out, section 361.3, subdivision (d) provides:
We agree with the department's assertion that throughout these proceedings, and especially after the jurisdiction/disposition hearing, there was never the need for a new placement of A.J. Had such a need arisen, the department would have been statutorily obligated to consider A.J.'s placement with a qualified relative.
Procedurally, the mother's section 388 petition was heard at too late a stage in the proceedings to overcome A.J.'s need for stability and continuity with the only caregivers who have attended to her daily physical and emotional care and development. The juvenile court had to consider A.J.'s best interests and mother failed to demonstrate any need to change A.J.'s placement.
The juvenile court made additional findings concerning the aunt's suitability for A.J.'s placement with her. The aunt told social workers she wanted a legal guardianship and further indicated she would eventually return A.J. to mother. The juvenile court noted this point in rejecting mother's section 388 petition. This finding supports the juvenile court's decision not to change A.J.'s stable placement with caregivers who were seeking to adopt her. The aunt testified at the permanency planning hearing she would have sought adoption of A.J. had she understood the difference between guardianship and adoption. This testimony was not convincing in light of the evidence earlier in the proceedings that the aunt sought guardianship rather than adoption.
As explained in In re A.A. (2012) 203 Cal.App.4th 597, 612, "[t]he change in circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged order." (Italics added; see Mickel O., supra, 197 Cal.App.4th at p. 615; Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485.) A.J. is entitled to permanency and stability. (Mickel O., supra, at p. 617.) The juvenile court did not abuse its discretion or err in denying mother's section 388 petition to place A.J. with the aunt.
2. Parent-child Benefit Exception
Mother contends the juvenile court applied the incorrect legal standard in deciding the applicability of the beneficial parent-child relationship exception. Mother argues she had a close bond with A.J., her visits were consistent and appropriate, and she had been sober for a significant period of time. We reject these contentions.
Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability. The burden is on the parent to prove changed circumstances. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) If the child is likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.)
Although section 366.26, subdivision (c)(1)(B) acknowledges termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) It is the parent's burden to show termination would be detrimental under one of the exceptions. There is a strong preference for adoption. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
The standard of appellate review has been described as the substantial evidence test. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) To the extent we may draw inferences from the record, we may do so only as to those legitimate inferences that uphold the decision of the trial court. (In re Laura F. (1983) 33 Cal.3d 826, 833; In re Angelia P. (1981) 28 Cal.3d 908, 924.) We view the evidence in the light most favorable to the trial court's judgment, contradicted or uncontradicted, and in assessing the evidence; appellate courts do not reweigh it. (In re Shelley J. (1998) 68 Cal.App.4th 322, 329.) Where there is a conflict in the evidence, we indulge all reasonable inferences in support of the trial court's finding. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379; In re Joshua H. (1993) 13 Cal.App.4th 1718, 1728.)
Other courts have applied the abuse of discretion test. When a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is not one of substantial evidence but whether the juvenile court abused its discretion. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) Under either the substantial evidence test or the abuse of discretion test, our analysis here would be the same. The practical differences between the two tests are insignificant as they both give deference to the juvenile court's judgment. (See ibid.)
For the section 366.26, subdivision (c)(1)(B)(i) exception to apply, the relationship between the parent and child must promote the well-being of the child to such a degree that it outweighs the well-being of the child in a permanent home with adoptive parents. The juvenile court balances the strength and quality of the natural parent-child relationship in a tenuous placement against the security and sense of belonging a new family would confer. If severing the natural parent-child relationship would deprive the child of a substantial and positive emotional attachment so 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., supra, 27 Cal.App.4th at p. 575.)
Interactions between the 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, comfort, affection, and stimulation. The relationship arises from day-to-day interaction, companionship, and shared experiences. 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.)
A substantial evidence challenge to the juvenile court's failure to find the beneficial parental relationship or a sibling relationship cannot succeed unless the undisputed facts establish the existence of such relationships. Such a challenge amounts to a contention the undisputed facts lead to only one conclusion. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314; In re I. W. (2009) 180 Cal.App.4th 1517, 1528-1529.)
Mother argues the juvenile court improperly evaluated mother's past history of substance abuse rather than focusing on her current sobriety and stability. As a consequence, the juvenile court did not accurately evaluate the beneficial parent-child relationship. This argument misconstrues the trial court's evaluation of the suitability of the beneficial parent-child relationship.
Mother did not receive reunification services at the beginning of A.J.'s dependency due to the applicability of three bypass provisions in section 361.5, subdivision (b) because mother had her parental rights terminated as to two older children a few years earlier. Mother had received reunification services, including substance abuse and counseling services, and failed to remain stable and sober. This was highly relevant to the juvenile court's analysis of the instant action because mother had remained sober for just over a year. There was no drug-test evidence from mother, however, after August 2015. Mother's sobriety and stability were only recent compared to her long prior history of substance abuse dating back to at least 2003.
Mother argues she should not have to prove her rehabilitation to establish the exception. (See In re Noah G. (2016) 247 Cal.App.4th 1292.) This argument misses the point. The juvenile court had to focus on the best interests of the child, especially in the latter stages of the dependency proceeding. Mother's relationship with A.J. was described by a supervising social worker as more friendly than parental. Mother acted appropriately with A.J. during visitation and showed A.J. love, but never acted as A.J.'s daily caregiver. All of mother's visits were supervised. The juvenile court here properly devoted attention to the nurturing provided by the caregivers over essentially A.J.'s entire life. In doing so, the court did not inordinately rely on mother's past history of substance abuse.
Mother bore the burden of showing more than loving contact and pleasant visits. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 953-954.) Although day-to-day contact is not necessarily required, it is typical. A biological parent who has failed to reunify with an adoptable child may not derail adoption merely by showing the child would derive some benefit from continuing the parent-child relationship during periods of visitation. (In re Jason J. (2009) 175 Cal.App.4th 922, 937.) Mother needed to demonstrate she occupied a parental role in A.J.'s life resulting in a significant, positive, emotional attachment from child to parent. Here, there was little or no evidence mother occupied this crucial role. (In re L. Y. L., supra, at p. 954.) Mother has failed to show detriment or harm if the parent-child relationship ended. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) We agree with the department. There was insufficient evidence from mother demonstrating the benefits of maintaining the parent-child relationship would outweigh the benefits of A.J.'s adoption.
The findings and orders of the juvenile court are affirmed.
KANE, Acting P.J. and DETJEN, J., concurs.