Filed 2/21/18 In re J.L. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In re J.L., a Person Coming Under the Juvenile Court Law. H044500
(Santa Clara County
Super. Ct. No. JD-0223377)

SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN’S SERVICES,

Plaintiff and Respondent,

v.

M.S.,

Defendant and Appellant.

Four-year-old J.L. was freed for adoption under Welfare and Institutions Code section 366.26 after the court terminated reunification services provided to his mother, M.S. (mother), and then terminated her parental rights. Mother appeals, contending that the court abused its discretion by denying her section 388 petition to restart services because she had recently made significant progress in addressing the issues that had led to J.L.’s dependency. We find no abuse of discretion in the court’s denial of that petition. Because mother is unable to show error in the ensuing termination of her parental rights, we must affirm the order.
Background
On July 31, 2015, when the minor was two years old, police officers found him in the back of mother’s car in a parking lot behind a supermarket. Mother was unconscious in the front seat. When she awoke she was disoriented and unstable on her feet. They appeared to be homeless. Mother was taken to the hospital, while J.L. was taken into protective custody.
Mother told the social worker that she had “blacked out” that day from anxiety and fatigue, as she suffered from depression and anxiety. She had been prescribed Xanax but had discontinued it due to its side effects, and she was currently using marijuana to cope with her symptoms, though she refused to take a drug test. Her husband, L.S., had repeatedly inflicted violent physical abuse on her. Mother did not know the whereabouts of J.H., J.L.’s biological father. The court ordered J.L. detained.
On August 17, 2015, the Department of Family and Children’s Services (the Department) filed an amended petition alleging juvenile court jurisdiction under section 300, subdivisions (b)(1)-(b5). By this time mother had agreed to a drug test, which was positive for marijuana, methamphetamine, and amphetamine. Mother denied using methamphetamine, however, and she denied having a substance abuse problem.
In preparation for the hearing on jurisdiction and disposition, the social worker recommended that reunification services be offered to mother and that J.L. continue in foster care. Mother had been in two successive inpatient drug treatment programs and had been attending classes and meetings, though she had difficulty following facility rules and had tested positive for marijuana on October 2, 2015. On October 7, 2015, the court sustained the petition and adjudged J.L. a dependent of the court. Mother was ordered to complete parenting classes, several drug treatment programs, counseling or psychotherapy, and a domestic violence support group. She was also ordered to comply with drug and alcohol testing weekly and when requested by the social worker, along with the treating psychiatrist’s recommendations regarding psychotropic medication. Mother was allowed supervised visitation for a minimum of two hours twice a week.
Mother left her last inpatient treatment program on October 25, 2015 because she felt that “some of the residents were picking on her.” She lasted only a few days in the next placement, a Transitional Housing Unit. She was then admitted to a program of outpatient services, but after attending one class she failed to return and was terminated. Mother had arrived too late for a visit with J.L., but she falsified her visitation sign-in sheet to make it appear that she had arrived on time. She also had failed to show up for a Christmas visit. By early January mother had found employment, but she refused to take a drug test. Her drug tests taken on December 8 and 16 were deemed “administrative positives (one having been reported as “Substituted” and the other “Dilute and Abnormal”).
By April 2016 the social worker was recommending termination of reunification services and the scheduling of a hearing to establish a permanent plan for J.L. under section 366.26. Mother had been inconsistent in returning the social worker’s calls, and she had missed meetings with the social worker and appointments to complete her case plan services. Instead of holding herself accountable for her noncompliance with her case plan, she had made excuses for her behavior such as car trouble, a lack of a phone charger, and her history of trauma; or she blamed others, alleging a lack of support. She had also been “extremely guarded and not forthcoming with information regarding her living arrangement, case plan services, and her substance use.” The social worker believed that mother was still using marijuana “and possibly other substances.” It appeared to the social worker that mother was not motivated to complete her case plan. She had missed a parenting class, a Narcotics Anonymous program, and therapy appointments. She had submitted to drug testing only once between the last review hearing on January 8 and the end of March 2016, and that drug test was positive for marijuana. She had failed to show up for the 10 other testing appointments as well. She also had failed to complete the consent form allowing the social worker to speak to the treating psychiatrist.
Mother believed that she should be reunified with the child even without completing her case plan. She was unable to recognize the need for compliance in order to regain custody of J.L.; by March 20, 2016 she “had the impression that she [had] completed enough of her case plan services to have her child returned to her.” She remained “in denial regarding her mental health and substance abuse issues” and how those issues affected her ability to parent J.L. Her unwillingness to acknowledge her problems with drug use and her inability to provide a stable environment, with a “vicious cycle of being homeless and having a chaotic lifestyle,” demonstrated the detriment that would result from returning J.L. to her care. Given her lack of progress, the social worker believed there was “no substantial probability” that the child could return to mother if she were given more time.
J.L., by now three years old, was developing well and had formed a strong bond with his foster family. Between January 20 and March 28, 2016, mother failed to show up for visits with J.L. four times. On those occasions he became sad. The Department was investigating the maternal aunt’s home as a possible placement for J.L.
At a May 6, 2016 hearing the court acceded to mother’s request for a contested hearing on the Department’s recommendation for termination of services. The court granted the Department the discretion to release J.L. to the care of his aunt if her home proved to be a suitable placement for him.
On June 17, 2016, the date of the contested hearing, mother did not appear. Her attorney was unable to confidently proceed on her behalf. The court adopted the recommendations of the Department. It found by clear and convincing evidence that reasonable services had been offered or provided, but mother had failed to participate regularly and make “substantive progress” in her court-ordered treatment plan. The court therefore terminated reunification services and set the matter for an October 7, 2016 selection and implementation hearing.
On July 20, 2016, concerned that the foster mother was spanking J.L. and her own daughter with a belt and that the daughter was bullying J.L., the social worker removed him from that foster home. Within weeks of reaching his new foster family, he seemed “like a totally different child,” from being “guarded and reticent” to “constantly smiling, laughing, and engaging with . . . anyone he comes in contact with.” The maternal aunt was no longer considered as a placement for J.L., and no other relative placements had been found suitable. J.L. was “highly adoptable” and his current caregivers wanted to adopt him. Their relationship with J.L. was “very close.”
Meanwhile, between April 8 and September 28, 2016, mother had attended three of her weekly visits; she had failed to show up for six. During the visits mother was observed to be “distant”; her attention to him “comes and goes.” An extended family member believed that mother might be using illicit drugs. Mother wanted a family member to provide a home for J.L., “but if that did not happen she would [be] equally fine with adoption as long as he was in a good home.”
The selection and implementation hearing was repeatedly continued, until it was finally heard in March of 2017. By this time, however, the court had been presented with mother’s “Request to Change Court Order,” filed February 8, 2017, pursuant to section 388. In the request her attorney stated that J.L. had continued to refer to mother as “momma” and his maternal grandmother as “nana.” When removed from the previous foster home he had asked whether he was going to see his mother. When visits occurred, he was very happy to see her. Mother had entered a detox program in October 2016 and currently was residing at Heritage Home, a year-long residential program. She had pleaded guilty to drug possession charges and was currently complying with the terms of Deferred Entry of Judgment (DEJ). She was complying with random drug testing three times a week, was clean and sober, and was attending 12-step meetings several times a week. She was also attending school at the Learning Center. Her attorney further noted that mother was currently pregnant, with a due date of April 20, 2017. She planned to remain in her programs, stay clean and sober, and have the baby in her care. She wanted J.L. to “continue to have a relationship with her and her family, as well as his sibling.”
As to why the requested change would be better for J.L., mother’s attorney asserted that the child had a “very strong bond” with his mother and that he had sought her comfort when being removed from the previous foster home. Counsel noted that mother had not had “the full benefit” of reunification services because they were terminated after six months. Mother was now “very strong in her sobriety.” It was in J.L.’s best interest, counsel argued, to grow up with his biological family and sibling, and he “deserves a chance to build on his bond with his mother[,] in order to grow to have a strong, healthy relationships [sic].”
In opposition, the Department disputed the suggestion that J.L. had a sufficient bond with mother to justify changing the goal of adoption. On the contrary, the Department stated, there was not a “secure attachment” between them, whereas J.L. did appear to have a secure attachment to his current caregivers. He called them “mom” and “dad,” constantly talked about them, and sought them out for comfort. They in turn treated him “as if he [were] their own child”; they “love him and want to adopt him and provide him consistent parenting, love and affection, and the ability to thrive.”
By contrast, the history of mother’s inconsistency in making the required changes demonstrated to the Department that returning J.L. to mother’s care with family maintenance services would not be in the child’s best interests. Mother’s recent efforts to address the risk factors that had led to J.L.’s dependency were “too little too late.” In the Department’s view, mother’s likelihood of success now was “questionable” and her desire to reunify could not be considered a “true commitment” or an indication of the ability to prioritize J.L.’s needs over her own. Thus, “[t]o disrupt [J.L.’s] permanency in an adoptive home and return him to a parent who has not been able to show that she is dedicated and stable in her recovery would be a mistake.” At this point, the Department argued, J.L. “deserves the permanency that only adoption can provide.”
J.L.’s attorney agreed with the Department that the child’s “overwhelming best interest” at this point was to proceed with permanency in the adoptive home. Separating him from his adoptive parents, to whom he looked for comfort and security would create a risk to his emotional and physical well-being.
Trial on the section 388 petition took place on March 20, 2017, the day before the section 366.26 hearing. In support of her petition mother testified that since January 6 of that year she had been clean and sober. She presented attendance slips from the Narcotics Anonymous and Alcoholics Anonymous meetings she was required to attend at least three times a week. She described in general her weekly therapy sessions, the anger-management classes, her relapse prevention planning, and the value she had obtained from her current residential program at Heritage Home. Mother expected that with J.L. back with her she could live with him and the baby at a sister program called House of Grace. Meanwhile, she was working on her high school equivalency certificate, after which the learning center would help her search for a job. Mother felt that she was “really stable” now; she was “able to deal with life’s struggles without turning to substances or [her] medication.” Heritage Home had given her strength and support that allowed her to recognize her character defects and wrongs, to “take full accountability” for her actions, and to get to where she wanted to go. Mother recognized that she “didn’t handle things maturely” during J.L.’s dependency period. Becoming pregnant, she said, was “the wake-up call I really needed to get myself together because I don’t want this baby to go through what my son went through.” All she could do now was “move forward and make sure that I can be the best mom I can be for my sons.”
During the social worker’s testimony the court asked him whether there would be a substantial risk to J.L.’s safety if he were returned to mother with family maintenance. The witness explained that there would be an emotional risk for “decompensating,” comparable to the experience J.L. had had when he was removed from his previous foster placement. Still, there would be “a sort of emotional muscle memory” from the period in which mother had him in her care; and the structured residential environment she was currently in should mitigate a lot of the risk. The social worker agreed with mother’s attorney that mother was clean and sober, and that her “mental health appear[ed] to be relatively under control.” He also believed that she was not far enough along in her treatment for him to know that she can maintain her stability.
The court commended mother for the progress she had made. But it believed that what had occurred over the past two and a half months at the Heritage Home was “more in line with changing circumstances than changed circumstances.” Eighty-two days, the court said, was not enough; there remained a substantial risk to J.L. if he were returned to mother. Moreover, the level and quality of the attachment J.L. had to his current caretakers needed to be preserved; to break that bond would be detrimental to the child. The court therefore denied the section 388 petition.
The next day the section 366.26 hearing took place. The parties presented no new evidence, but mother’s attorney conveyed mother’s wish that she be given the opportunity to remain in J.L.’s life. Consistently with the position of the Department and the minor’s attorney, the court terminated mother’s parental rights and ordered adoption as the permanent plan for J.L. Mother then filed this timely appeal.
Discussion
1. Denial of the Section 388 Petition
Mother’s primary argument on appeal is that the juvenile court abused its discretion when it denied her request to return J.L. to her care based on changed circumstances. Her challenge to the termination of her parental rights is premised on that asserted error, which made her attorney “unable to successfully argue that the beneficial parental relationship exception to adoption . . . should be applied.” (§ 366.26, subd. (c)(B)(1).)
Section 388, subdivision (a)(1), provides, in pertinent part: “Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . 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 of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.”
“Sections 366.26 and 388, when construed together and with the legislative scheme as a whole, are reasonable and bear a substantial relation to the objective sought to be attained. The parent’s interest in having an opportunity to reunify with the child is balanced against the child’s need for a stable, permanent home. The parent is given a reasonable period of time to reunify and, if unsuccessful, the child’s interest in permanency and stability takes priority. Even after the focus has shifted from reunification, the scheme provides a means for the court to address a legitimate change of circumstances while protecting the child’s need for prompt resolution of his custody status. Thus, both substantive and procedural due process are satisfied.” (In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.).) By the time termination of parental rights is being considered, the court need not continue to consider the issue of reunification; it is then up to the parent to revive the issue by proving changed circumstances pursuant to section 388. (Marilyn H., supra, at p. 309.) The statute thus provides “an ‘ “ escape mechanism” ’ for parents facing termination of their parental rights by allowing the juvenile court to consider a legitimate change in the parent’s circumstances after reunification services have been terminated.” (In re Alayah J. (2017) 9 Cal.App.5th 469, 478-479, citing Marilyn H., supra, at pp. 307-310.)
A parent moving for an order to reopen reunification or to return custody of the child has the burden of proof to show new evidence or a change of circumstances. (§ 388, subd. (a)(1); (Cal. Rules of Court, rule 5.570(h)(1); In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) But beyond that, the parent must establish how the requested modification would “advance the child's need for permanency and stability.” (In re J.C. (2014) 226 Cal.App.4th 503, 527.) “In considering whether the petitioner has made the requisite showing, the juvenile court may consider the entire factual and procedural history of the case. [Citation.] The court may 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. [Citation.] In assessing the best interests of the child, ‘a primary consideration . . . is the goal of assuring stability and continuity.’ (In re Stephanie M., supra, 7 Cal.4th at p. 317.)” (In re Mickel O. (2011) 197 Cal.App.4th 586, 616 (Mickel O.).)
A petition for modification is “committed to the sound discretion of the juvenile court, and the trial court’s ruling should not be disturbed on appeal unless an abuse of discretion is clearly established. [Citations.]” (Stephanie M., supra, 7 Cal.4th at p. 318; see In re A.R. (2015) 235 Cal.App.4th 1102, 1116-1117 (A.R.).) “ ‘ [“]The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. 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.]” (Stephanie M., supra, at pp. 318-319; A.R., supra, at p. 1117.)
In this case mother presented evidence that as of March 2017 she was complying with the terms of the DEJ issued in late 2016. She lived in a one-year residential program that helped her stay clean and sober. In that setting she subjected herself to random drug testing, attended 12-step meetings, and took classes toward high school equivalency. She was unable, however, to show that these were changed, rather than changing, circumstances after so little time in reform. “A petition [that] alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child’s best interests.” (In re Casey D. (1999) 70 Cal.App.4th 38, 47; accord, Mickel O., supra,197 Cal.App.4th at p. 615 [section 388 petitioner “must show changed, not changing, circumstances”].) Mother also was unable to show that it would be in J.L.’s best interests to be moved from a stable placement with a family that met all of his physical and emotional needs and was committed to adopting him. It was undisputed that J.L. needed stability and permanency at this stage; he had been in foster care from two and a half to four years old. In these circumstances we cannot find an abuse of discretion in the court’s determination that mother’s circumstances had changed enough to convince the court that undoing the prior order and restarting reunification services would be in the best interests of the child.
2. Termination of Parental Rights
In addressing the subsequent order under section 366.26, mother concedes that in light of the denial of her section 388 petition, she was unable to show that the benefits to J.L. from maintaining his relationship with her would outweigh the benefits from a permanent plan of adoption. Had she been granted additional services, she argues, “it is probable that [she]would have been able to show a significantly longer and stronger record of sobriety, attention to mental health issues, domestic violence awareness, and parenting skills, which in turn would have established a firmer bond between Mother and J.L., sufficient to establish the beneficial parental relationship exception to adoption.” Because the section 388 order must be reversed, mother argues, the ensuing section 366.26 order terminating her parental rights must be vacated.
At a section 366.26 hearing, the juvenile court has limited choices. Unless a statutory exception applies, the court is required to terminate parental rights and order the dependent child placed for adoption once it determines under a clear and convincing evidence standard that it is likely that the child will be adopted. (§ 366.26, subd. (c)(1).) “The Legislature has thus determined that, where possible, adoption is the first choice.” (In re Celine R. (2003) 31 Cal.4th 45, 53.) Thus, “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 that termination of parental rights would be detrimental to the child. The specified statutory circumstances—actually, exceptions to the general rule that the court must choose adoption where possible—‘must be considered in view of the legislative preference for adoption when reunification efforts have failed.’ [Citation.] At this stage of the dependency proceedings, ‘it becomes inimical to the interests of the minor to heavily burden efforts to place the child in a permanent alternative home.’ [Citation.] The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.” (Ibid.)
Section 366.26, subdivision (c)(1)(B), contains a number of exceptions to the mandate of adoption, including the beneficial parent-child relationship exception. (§ 366.26, subd. (c)(1)(B)(i).) That exception applies where “[t]he court finds a compelling reason for determining that termination would be detrimental to the child [because] [t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (Ibid.) The parent bears the burden of proving the beneficial parent-child relationship exception applies. (In re Mary G. (2007) 151 Cal.App.4th 184, 207.) That 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. (1994) 27 Cal.App.4th 567, 575; In re Breanna S. (2017) 8 Cal.App.5th 636, 646 (Breanna S.).) The exception, however, “does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348 (Jasmine D.), italics added; Breanna S., supra, at p. 646; In re Angel B. (2002) 97 Cal.App.4th 454, 466.) “Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (Jasmine D., supra, at p. 1350.
Mother acknowledges that she was unable to make this showing of a beneficial parent-child relationship without the additional services she had requested in her section 388 petition. Consequently, we are not asked to review the court’s finding that no statutory exceptions to adoption as a permanent plan existed in J.L.’s case. As the court properly found that no benefit would be achieved by prolonging J.L.’s dependency, its further finding that adoption by his foster parents was the appropriate permanent plan must be upheld.
Disposition
The order terminating mother’s parental rights under section 366.26 is affirmed.




_________________________________
ELIA, Acting P. J.

WE CONCUR:



_______________________________
MIHARA, J.



_______________________________
GREENWOOD, J.












In re J.L.; DFCS v M.S.
H044500