In re Michael R.
Filed 10/3/13 In re Michael R. CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Butte)
----
In re MICHAEL R. et al.,
Persons Coming Under the Juvenile Court Law.
C072236
BUTTE COUNTY DEPARTMENT
OF EMPLOYMENT AND SOCIAL SERVICES,
Plaintiff and Respondent,
v.
M. R.,
Defendant and Appellant.
(Super. Ct. Nos.
J35101, J35102, J35103)
M.R., the
mother of 11-year-old Peter R., nine-year-old Matthew R., and six-year-old
Michael R., appeals from orders of the
Juvenile Court denying her request to return the children to her care and
terminating her parental rights.
On appeal,
mother contends (1) the juvenile court’s order terminating her parental rights
was in error because the children shared a beneficial bond with her and would
suffer significant detriment if their relationships with her were severed, and
(2) the court’s order denying her request to return the children was not
supported by evidence and is thus an abuse of discretion. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Originating
Circumstances
On January 2, 2010, law enforcement
responded to a report of domestic
violence. Mother and the father of
the children appeared to be under the influence of methamphetamine.
found on mother. The residence was
filthy and had no furniture or beds for the children. The children were not properly clothed for
the cold weather and had not recently been bathed. The youngest child had feces on his leg. Blankets the children had been sleeping on “
‘reeked of urine.’ †Very little
food was in the home, food on the range and most of the refrigerated food had
spoiled, and several dishes and pots were dirty. The parents were arrested and booked into
jail.
Original Petitions
The Butte
County Department of Employment and Social Services/Children’s Services Program
(Department) filed petitions alleging the children came within the juvenile
court’s jurisdiction in that law enforcement responded to a call of domestic
violence, the parents were under the influence of methamphetamine, the parents
were arrested on child endangerment and drug charges, the home’s filthy
conditions presented a health and safety risk, the home was in foreclosure and
the parents anticipated eviction, and approximately 16 possible domestic
violence incidents at the home had been reported since November 2009. (Welf. & Inst. Code, § 300, subd.
(b).)
Detention
At the
detention hearing on January 6,
2010, mother appeared in custody.
The issue of detention was submitted and the children were ordered
detained. The juvenile court authorized
visits between mother and the children at the jail.
Jurisdiction and Disposition
At the
jurisdiction hearing on February 11,
2010, the parents submitted on the verified petition as amended and
the juvenile court found the allegations were true.
The March
2010 disposition report recommended that the parents receive reunification
services. The report described Peter as
a “very bright and deep thinking child who is very mature for his age.†Although very capable of superior academic
work, he was underachieving in most areas and had been absent for nine days and
tardy on 10 days of the first trimester of school. Peter was very parentified and showed great
concern for his family due to his parents’ drug use and the minors’
detention. Peter had been “ ‘afraid this
was going to happen’ †if his parents “continued to ‘use the pipe’. â€
Matthew was
in kindergarten, performing at grade level and excelling in many areas. He had been absent for nine days and tardy on
five days of the first trimester. He was
not showing any signs of emotional trauma, but the social worker thought he
would benefit from working with a therapist during this stressful period of his
life.
Michael was
too young for school but had serious behavioral and emotional issues that could
preclude him from being placed in a regular classroom. The foster parents attempted to enroll him in
preschool but the parents failed to sign the necessary paperwork. The Department requested appointment of an
educational surrogate. Michael’s
behaviors interfered with his ability to cope with his family’s state of
crisis. The children initially had been
placed together, but Michael’s behaviors and aggressiveness led to his
placement in a foster home with a higher level of care. He had been placed in day care but was
prohibited from returning after one day.
A maternal
second cousin and her husband requested placement of the children. They had maintained visitation and were
scheduled for an overnight visit with Peter and Matthew. They supported family reunification and were
willing to provide permanency if reunification failed. The parents had expressed apprehension about
placement with these relatives but concluded it was preferable to continued
foster care. The Department planned to
first place Michael with the relatives and then transition his siblings after
Michael had stabilized.
Mother was
referred to drug and alcohol treatment, but she failed to appear for her
appointment and was not participating in treatment. She had not attended any parent support group
meetings but had attended 14 12-step meetings.
She had not attended any domestic violence support group meetings. Mother’s drug testing history included six
negative tests, one positive and diluted test for methamphetamine, one failure
to test, and several failures to accept messages instructing her to test.
At the
disposition hearing on March 4,
2010, the juvenile court adopted the recommended findings and
orders, suspended the parents’ rights to make educational decisions regarding
Michael, and appointed a court appointed special advocate (CASA) as Michael’s
educational surrogate.
In
July 2010 the therapist for Peter and Matthew recommended that the boys
not visit either parent at the jail.
In August
2010 Michael’s CASA recommended that he remain in his foster placement and not
be moved to his brothers’ placement.
That same
month, the state Department of Social Services approved the maternal relatives
as a permanency option for Peter and Matthew, and approved Michael’s foster
placement as a permanency option for him.
Six-Month Review
The report
for the six-month review recommended that mother continue in a plan of family
reunification. She had struggled with
her ongoing addiction issues and had made minimal progress toward reunification
with the children. She was jobless and
homeless, and continued to test positive for methamphetamine and
marijuana. When confronted with positive
test results, mother would appear “wide-eyed and completely shocked,†and would
blame the results on something she had eaten.
When she met with her social worker and substance abuse counselor in May
2010, mother was hostile and attributed her failure to attend drug treatment to
her dissatisfaction with the children’s placement with relatives. When her counselor told her to “ ‘get real,’
†mother broke down in tears, admitted using methamphetamine the previous
weekend, and stated she found it difficult to “ ‘stay clean.’ †Mother agreed that she would benefit from a
more intensive substance abuse program, but she failed to keep appointments for
an alcohol and drug assessment.
In July
2010 mother arrived late for an interview at the probation department and
claimed to have lost or misplaced paperwork for the appointment. She claimed the police report had “
‘exaggerated’ †the condition of the home and had lied about the physical
condition of the children. Mother did
not believe she needed residential treatment and preferred to serve a jail
sentence.
Mother
attended two out of four alcohol and drug assessment appointments, had not
successfully completed substance abuse treatment, was attending a parent
support group, and had attended only 14 12-step meetings in six months. After regularly failing to drug test for four
to five months, mother tested clean during the month preceding preparation of
the six-month review report.
Mother was
scheduled to have regular visitation with the children, but she often failed to
attend the visits due to continued drug use.
The inconsistent visits were detrimental to the children, particularly
Peter, the oldest child, who exhibited severe anxiety and distress when the
parents failed to attend a visit or appeared under the influence. When the parents visited the children they
demonstrated good parenting skills and abilities.
At the
review hearing on August 26, 2010,
the juvenile court ordered the parents to continue in a plan of family
reunification.
Twelve-Month Review
The report
for the 12-month review recommended that mother continue in a plan of family
reunification. Mother continued to
struggle with substance abuse treatment.
She became romantically involved with her former drug dealer. She believed she could maintain sobriety on
her own despite cohabiting with him.
After agreeing to enter residential treatment and failing to follow
through, mother eventually completed 63 days of residential treatment and
graduated from the program. She was
residing in a homeless shelter until an opening was available in a sober living
environment. She also was on a waiting
list for a transitional living program.
The
probation department randomly tested mother for drugs. Mother admitted to “ ‘eating baking soda
and drinking large amounts of water’ †to falsify her drug test results. Mother’s test results were negative but her
admitted behavior called the results into question.
While in
utero, Michael had been exposed to methadone and possibly alcohol, in that he
exhibited defined characteristics consistent with
Peter and
Matthew participated in weekly psychotherapy.
Their therapist reported that the children were “ ‘showing continued,
improving progress in their overall feelings of being safe and cared for in
their current placement and have developed healthy attachments.’ †Michael had attended several counseling
sessions, but the clinician and foster mother did not believe they were
beneficial and his sessions were discontinued.
The children
visited mother regularly, but arranging visits was difficult while mother was
in residential treatment.
The
12-month review hearing was conducted on February 10, 2011, and a contested hearing was
requested. At the pretrial conference
for the contested hearing, the matter was submitted by counsel and the findings
and orders were adopted.
In April
2011 the social worker filed a request to modify the court’s order; she asked
that Michael be returned to mother under a plan of family maintenance. The juvenile court later granted the request
and ordered Michael into a plan of family maintenance with mother.
Eighteen-Month Review
The report
for the 18-month review recommended that Peter and Matthew be returned to
mother under a plan of family maintenance. Mother continued to make progress in her
recovery efforts. She participated in
recovery services and consistently tested clean. She and Michael were living at Esplanade
House. Peter and Matthew were living
with her on an extended visit.
Although
the Department recognized and commended mother for the tremendous strides she
had taken in overcoming her denial about the reasons the children had been
removed, the Department remained concerned about mother’s ability to maintain
appropriate relationship boundaries and be honest with her service
providers. The family maintenance
recommendation was made with caution and ordered at the hearing on June 30, 2011, along with other
recommended findings and orders.
Family Maintenance Review
The report
for the family maintenance review cautiously recommended a continued plan of
family maintenance. The Department
expressed concern about mother’s lack of consistent participation in ordered
services, although the Department understood the difficulty mother might be
having in raising three children as a single parent. The Department also expressed concern about
mother’s ability to meet the children’s needs.
The children needed medical examinations and dental care. They were performing below grade level in
school and had issues of absenteeism.
Michael continued to exhibit challenging and unpredictable
behaviors. Mother had not followed
through on a recommendation to have Michael see a child psychiatrist regarding
his medication.
Second Detention and Supplemental Petitions
On
December 15, 2011, prior to the family maintenance review hearing, the
children were detained after mother was arrested for violating her probation
based on a positive drug screening and insufficient compliance with the
Department’s requirements. The probation
officer recommended that mother serve a jail sentence of up to 180 days.
On
December 19, 2011, the Department filed supplemental petitions requesting
a more restrictive placement of all three children. They were placed with the relatives with whom
Peter and Matthew previously had resided.
At a detention hearing on December 20, 2011, the issue of detention
was submitted by counsel. The court
ordered the children detained.
Jurisdiction on Supplemental Petitions
On
January 20, 2012, the Department filed a jurisdiction report on the
supplemental petitions. The report
stated that mother had tested positive for alcohol, which violated her case
plan and the rules of her treatment program.
She had not admitted to relapsing or struggling with sobriety, and
honesty with respect to those issues is vital to the recovery process. At the jurisdiction
hearing, mother admitted that the petitions’ allegations were true and
submitted on the issue of jurisdiction.
Disposition of Supplemental Petitions
The
disposition report recommended that reunification services be bypassed because
mother had already received 12 months of services. (§ 361.5, subd. (a)(1)(A).)
The
children remained in their placement.
They had exhibited some anxiety-ridden behaviors. Peter was very angry at mother for her recent
relapse. He had demonstrated some
regressive behaviors since being removed from mother’s home. Matthew was the most resilient of the
children but expressed some confusion about his current circumstances,
including mother’s relapse and his parents’ divorce. Michael had significant mental health needs;
the treatment team’s goal was to reduce his sedative medications and begin treatment
for attention deficit hyperactivity disorder.
The
children visited mother weekly and looked forward to the visits. During visits the energetic children spent
most of their time running, yelling, and chasing each other, sweating
profusely, and ultimately appearing physically exhausted. The social worker encouraged mother to balance
the visits by devoting a portion of the time to a relaxed activity such as
playing a board game or reading a book.
Mother
admitted that she had consumed alcohol intermittently during the previous two
years. However, she had not consumed
alcohol during the period between the completion of her residential treatment
program and her most recent relapse.
Mother had not disclosed that she was struggling with her sobriety.
After she
was released from jail, mother restarted her substance abuse treatment. Her counselor opined that mother should have
another chance. A month after restarting
services, she submitted “a diluted test.â€
The report
noted that the children were returned to mother at the 18-month review; thus,
mother has had more than the maximum allowable time to participate in
reunification services. Although mother
desired additional time to reunify with the children, the Department
recommended that the court set a selection and implementation hearing.
At mother’s
request, the juvenile court scheduled a contested disposition hearing. Following testimony and argument, the
juvenile court followed the Department’s recommendation and scheduled a
selection and implementation hearing.
Request to Change Court Order
On
June 22, 2012, mother filed a request to terminate juvenile court
jurisdiction and return the children to her care. Mother alleged that she had remained clean
and sober for six-and-a-half months, successfully transitioned from level one
to level two of her outpatient care, completed a parent support group and an
extensive parenting course, continued to attend a sheriff’s work project as
well as individual and group therapy, obtained employment, and was seeking her
own stable housing.
Adoptability Assessment
In July
2012 the state Department of Social Services filed an adoptability assessment
recommending termination of parental rights and a permanent plan of
adoption. The children were five, eight,
and 10 years old and had been dependents since January 2010. Although the children had been reunified with
mother for approximately six months, they were currently placed with maternal
relatives who wished to adopt all three children.
Peter and
Matthew were sad that their parents were unable to care for them, but they were
happy to be living with their current family.
Michael indicated that he wanted to live with his previous foster
mother; his desire might have been based in part on the fact that mother also
resided with that foster mother. The children
relied on their current caretakers for their sense of security and emotional
well-being. They appeared to enjoy a
warm and healthy attachment to the current family.
The
children maintained regular contact and visitation with the birth parents. In June 2012 the visitation began to decrease
in preparation for the permanent plan of adoption. The caretakers indicated that, following the
adoption, the children and birth parents would have monthly in-person visits
and monthly telephone contacts; the children also enjoyed contact with their
parents via internet audio or video. The
caretakers declined to enter into a postadoption
contact agreement due to the birth parents’ chronic instability.
The
assessment determined that any benefit the children would receive by continuing
their legal relationship with mother would be outweighed by the benefit they
would receive from legal permanence through adoption.
Selection and Implementation
The report
for the selection and implementation hearing recommended that parental rights
be terminated and the children be placed in a permanent plan of adoption. The children had adjusted well to their
relatives’ care and were thriving. The
foster mother had been trained to address the children’s special needs and
their prior exposure to substance abuse.
Soon after
the children’s previous return to mother’s care, mother began decreasing her
participation in services. She was not
honest with, and did not take advantage of, the support system she had
developed. Mother had many previous
attempts at staying clean and sober, but those resulted in only short-term
success and ultimate inability to achieve long-term sobriety.
A contested
selection and implementation hearing was held on September 12, 2012. The selection and implementation report, the
adoptability assessment, and the request to change court order were admitted
into evidence. Mother testified that she
was working as a cook at a “bar and grill.â€
Mother obtained a two-bedroom home with a fenced yard and had a car and
insurance. She was participating in
outpatient therapy, Narcotics Anonymous meetings, and individual
counseling. She had been sober for nine
months five days. She had ended her
relationship with the former drug dealer and was not then in a
relationship. She took a parenting class
at a local college. She had also
completed probation on the criminal matter that resulted in the second loss of
custody.
Following
argument on mother’s request to terminate juvenile court jurisdiction, the
juvenile court found that there had been a change in circumstances but there
was not sufficient evidence that terminating jurisdiction would be in the
children’s best interest.
The social
worker testified that mother’s visits with the children had been positive and
that they have a good, loving relationship.
Consistent with the adoptability assessment, the social worker testified
that the adoptive parents were willing to have an open adoption but they did
not wish to enter into a formal agreement.
The social
worker opined that the children’s relationship with mother did not outweigh the
benefit they would receive from the permanency of adoption. The children “have been through a lot, and
now they’re happy, stable, all their needs are met.†They now had an emotional relationship, but
not a parental relationship, with mother.
The children looked to their current caretakers for purposes of “being
taken care of.†The social worker noted
that the family the children were with was “willing to maintain an emotional
relationship with the parents.â€
The author
of the adoptability assessment testified that she had met with mother and had
witnessed some brief interaction between her and the children. She opined that terminating mother’s parental
rights would not be detrimental to the children because their need for legal
permanence superseded their need for visitation with mother. She felt “particularly good†about the
adoptive placement because the caregivers had agreed to allow extensive contact
with the parents. She opined that
contact with the parents benefitted the children’s emotional health because it
allowed them to “know that mom and dad are doing okay.â€
The
assessment author testified that the caretakers had not noticed the children
having any behavioral struggles as a result of the reduction in visitation with
the parents. She indicated “it’s
important to the kids that they know that their parents are doing well.â€
The
previous social worker testified that when mother began having consistent
visits, they were positive and it was clear the children enjoyed the visits
with both parents.
Following
argument, the juvenile court found that there was not sufficient evidence to
establish the beneficial parental relationship exception to adoption.
DISCUSSION
I.
Beneficial Parental Relationship Exception
Mother
contends the juvenile court’s order terminating her parental rights was in
error because the children shared a beneficial bond with her and would suffer
significant detriment if their relationships with her were severed. She argues the Department improperly relied
on the prospect of the parent-child relationships continuing postadoption even
though there was no legal requirement for it to occur. We disagree.
A.
Relevant Legal Principles
“ ‘At the
selection and implementation hearing held pursuant to ADDIN BA xc <@osdv> xl 14 s
BPMSVR000022 l "section 366.26" section 366.26, a
juvenile court must make one of four possible alternative permanent plans for a
minor child . . . . The
permanent plan preferred by the Legislature is adoption. [Citation.]’
[Citation.] If the court finds
the child is adoptable, it must terminate parental rights absent
circumstances under which it would be detrimental to the child.†( ADDIN BA xc <@cs> xl 48 s
BPMSVR000002 xhfl Rep xpl 1 l "In re Ronell A.
44 Cal.App.4th 1352" In re Ronell A. (1996)
44 Cal.App.4th 1352, 1368.)
There are
only limited circumstances permitting the court to find a “compelling reason
for determining that termination [of parental rights] would be detrimental to
the child.†( ADDIN BA xc <@osdv> xl 25 s
BPMSVR000023 xpl 1 l "§ 366.26, subd. (c)(1)(B)" § 366.26,
subd. (c)(1)(B).) One of these is
where the parent has maintained regular visitation and contact with the child and
the child would benefit from continuing the relationship, often referred
to as the beneficial parental relationship exception. ( ADDIN BA xc <@osdv> xl 28 s
BPMSVR000024 xpl 1 l "§ 366.26, subd. (c)(1)(B)(i)" § 366.26,
subd. (c)(1)(B)(i).) The “benefitâ€
to the child 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 other words, the
court balances the strength and quality of the natural parent/child
relationship in a tenuous placement against the security and the sense of
belonging a new family would confer. If
severing the natural parent/child relationship would deprive the child of a
substantial, positive emotional attachment such that the child would be greatly
harmed, the preference for adoption is overcome and the natural parent’s rights
are not terminated.†( ADDIN BA xc <@cs> xl 46 s
BPMSVR000003 xhfl Rep xpl 1 l "In re Autumn H.
27 Cal.App.4th 567" In re Autumn H.
(1994) 27 Cal.App.4th 567, 575 ( ADDIN BA xc <@$cs> xl 9 s
BPMSVR000003 xpl 2 Autumn H.); see ADDIN BA xc <@cs> xl 42 s
BPMSVR000004 xhfl Rep xpl 1 l "In re C.F.
193 Cal.App.4th 549" In re C.F. (2011)
193 Cal.App.4th 549, 555 ( ADDIN BA xc <@$cs> xl 4 s
BPMSVR000004 xpl 2 C.F.).)
Even frequent and loving contact is not sufficient to establish this
benefit absent a significant, positive, emotional attachment between
parent and child. ( ADDIN BA xc <@$cs> xl 38 s
BPMSVR000004 xhfl Rep xpl 1 C.F., at
p. 555; ADDIN BA xc <@$cs> xl 42 s
BPMSVR000003 xhfl Rep xpl 1 Autumn H., at p. 575; ADDIN BA xc <@cs> xl 50 s
BPMSVR000005 xhfl Rep xpl 1 l "In
re Beatrice M.
No matter
how “ ‘frequent and loving [the] contact’ [citation],†and notwithstanding “an
emotional bond with the child, . . . the parents must show that they
occupy ‘a parental role’ in the child’s life.
[Citation.]†( ADDIN BA xc <@cs> xl 53 s
BPMSVR000006 xhfl Rep xpl 1 l "In re Andrea R.
75 Cal.App.4th 1093" In re Andrea R.
(1999) 75 Cal.App.4th 1093, 1108-1109 (Andrea
R.); see ADDIN BA xc <@cs> xl 46 s
BPMSVR000007 xhfl Rep xpl 1 l "In re Jason J.
175 Cal.App.4th 922" In re Jason J. (2009)
175 Cal.App.4th 922, 938.)
“Because a ADDIN BA xc <@$osdv> xl 14 s
BPMSVR000022 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.†( ADDIN BA xc <@cs> xl 49 s BPMSVR000008
xhfl Rep xpl 1 l "In re Jasmine D.
Cal.App.4th 1339" In re Jasmine D. (2000)
78 Cal.App.4th 1339, 1350 (Jasmine D.).)
B.
Juvenile Court Ruling
The
juvenile court declined to “find that there is sufficient evidence that the beneficial
relationship exception applies. There
has been insufficient evidence that terminating the relationship between the
parents and the children would be detrimental to the children. There has been insufficient evidence that the
parents maintained regular visits and contact.
Assuming that there had been sufficient evidence, that their failure to
show sufficient evidence that the benefit of maintaining the parent-child
relationship would outweigh the benefit of adoption. These parents have not . . . in two
years and eight months been able to effectively get [past] the drug and alcohol
addiction and other problems that brought these children before the Court. They have not been able to meet their
children’s daily needs as [children’s counsel] had pointed out, not able to
tuck them in at night, take care of their day-to-day needs, take them to
school, help them with homework, feed them, clothe them, care for them. The parents must show something more than
just frequent and loving contact and pleasant visits. I do not find that the evidence presented has
shown that there would be detriment to the children if parental rights were
terminated. The testimony was that
contact with the parents encouraged the children’s emotional health, and what I
understood that testimony to be and what I find is that the children are very
concerned about these parents[’] well-being because they have seen these
parents struggle with domestic violence, struggle with keeping a clean home,
struggle to take care of their day-to-day needs. They’ve seen mom struggle with
addiction. They’ve seen her in her rehab
and had to go to a rehab and have seen her get in unhealthy relationships. I assume they’ve seen the boyfriend’s name
tattooed on her neck so they’re worried about whether their parents are doing
well or not. It doesn’t mean
that -- it doesn’t translate into sufficient evidence that terminating the
relationship would be detrimental to the children. [¶] So
the Court is going to find that there’s not sufficient evidence to establish
. . . the parental beneficial [relationship] exception [to]
terminat[ion of] the parental rights.â€
C.
Burden and Standard of Review
The party
claiming the exception in the juvenile court has the burden of establishing the
existence of any circumstances that constitute an exception to termination of
parental rights. ( ADDIN BA xc <@$cs> xl 38 s
BPMSVR000004 xhfl Rep xpl 1 C.F., supra, 193 Cal.App.4th at
p. 553.)
As the
party must establish the existence of the factual predicate of the
exception—that is, evidence of the claimed beneficial parental relationship—and
the juvenile court must then weigh the evidence and determine whether it
constitutes a compelling reason for determining detriment, substantial evidence
must support the factual predicate of the exception, but the juvenile court
exercises its discretion in weighing that evidence and determining
detriment. ( ADDIN BA xc <@cs> xl 54 s
BPMSVR000009 xhfl Rep xpl 1 l "In re Bailey J.
189 Cal.App.4th 1308" In re Bailey J. (2010)
189 Cal.App.4th 1308, 1314-1315 (Bailey
J.).)
“On review
of the sufficiency of the evidence, we presume in favor of the order,
considering the evidence in the light most favorable to the prevailing party,
giving the prevailing party the benefit of every reasonable inference and
resolving all conflicts in support of the order.†( ADDIN BA xc <@$cs> xl 42 s
BPMSVR000003 xhfl Rep xpl 1 Autumn H., supra, 27 Cal.App.4th
at p. 576.) “ ‘[E]valuating
the factual basis for an exercise of
discretion is similar to analyzing the sufficiency of the evidence for the
ruling. . . . Broad deference
must be shown to the trial judge.’ †( ADDIN BA xc <@$cs> xl 50 s
BPMSVR000008 xhfl Rep xpl 1 Jasmine D., supra, 78 Cal.App.4th
at p. 1351.)
D.
Analysis
Mother had
the burden of establishing that she occupied “ ‘a parental role’ †in the
children’s lives (
ADDIN BA xc <@cs> xl 53 s BPMSVR000006 xhfl Rep xpl 1 l "In
re Andrea R.
at pp. 1108-1109) and that ADDIN BA xc
<@cs> xl 46 s BPMSVR000007 xhfl Rep xpl 1 l "In re Jason
J.
with the children would be detrimental, such that the children would be greatly
harmed (
ADDIN BA xc <@cs> xl 46 s BPMSVR000003 xhfl Rep xpl 1 l "In
re Autumn H.
at p. 575; ADDIN BA xc <@$cs> xl 9 s
BPMSVR000003 xpl 2 ADDIN BA xc
<@$cs> xl 38 s BPMSVR000004 xhfl Rep xpl 1 C.F., supra, 193 Cal.App.4th at p. 553).
The
juvenile court did not find a parental role but rather a role reversal:
other way around. Contact with the
parents encouraged the children’s emotional health because it offered the needed reassurance. But the parental role includes making sure
that this sort of reassurance is not necessary.
ADDIN BA xc <@cs> xl 53 s
BPMSVR000006 xhfl Rep xpl 1 l "In re Andrea R.
75 Cal.App.4th 1093" Mother largely ignores the
court’s finding, which finds support in the adoptability assessor’s testimony
that the children need to “know that their parents are doing well,†and mother
fails to demonstrate that the finding constitutes an abuse of discretion.
In any
event, the social worker testified that the children had an emotional
relationship, but not a parental relationship, with mother. This is because the children look to their
current families for purposes of being taken care of. The social worker’s testimony supports the
juvenile court’s ruling to the extent that it failed to find that mother played
a parental role in the children’s lives.
Even if
mother occupied a parental role, the adoptability assessor made plain that its
termination would not cause the children to be greatly harmed. ( ADDIN BA xc <@cs> xl 46 s
BPMSVR000003 xhfl Rep xpl 1 l "In re Autumn H.
27 Cal.App.4th 567" Autumn H., supra, 27 Cal.App.4th
at p. 575; ADDIN BA xc <@$cs> xl 9 s
BPMSVR000003 xpl 2 ADDIN BA xc
<@$cs> xl 38 s BPMSVR000004 xhfl Rep xpl 1 C.F., supra, 193 Cal.App.4th at p.
553.) The assessor testified that the
children would not suffer if they were to have less time and contact with
mother. She explained that when contact
was reduced in preparation for the selection and implementation hearing, the
reduction “has made them sad, but they understand that mom isn’t able to have
them in her home and that she’s not stable enough to have them.†The written assessment elaborated that “Peter
and Matthew are understandably sad that their parents are unable to have them
in their care, but are happy with living with family that loves them.†Michael evidently wanted to live with mother,
but his inability to do so resulted in no evident harm. Instead, the children relied on their
caretakers for their sense of security and emotional well-being. There was sufficient evidence that, although
it might produce some sadness, termination of parental rights would not cause
any of the children to be greatly harmed.
The present
case is not like In re Amber M.
(2002) 103 Cal.App.4th 681, on which mother relies. In Amber
M., evidence from a CASA, a psychologist, and therapists showed a beneficial
parental relationship that outweighed the benefit of adoption. The social worker was “the only dissenting
voice among the experts,†and she “provided no more than a perfunctory
evaluation of [the] Mother’s relationship to the children.†(Id.
at p. 690.) Here, in contrast, the
experts essentially were in agreement and no expert suggested that termination
of mother’s relationship with the children would cause any child to be greatly
harmed.
Mother
counters that the social worker and the adoptability assessor mistakenly
minimized the harm that the children would suffer if parental rights were
terminated by improperly factoring in the willingness of the adoptive parents
to allow continuing contact with the natural parents. Not so.
When
considering the beneficial relationship exception to adoption, the juvenile
court cannot minimize the harm expected to flow from termination by theorizing
that the adoptive parents voluntarily will maintain the child’s relationship
with the birth parents. (
102, 127-128 (C.B.);
289, 300 (S.B.).)
The
juvenile court’s ruling contains no reference to, or reliance upon, the
adoptive parents’ willingness to allow future contact. (See part I.B., ante.) Mother concedes that
no such reference was made. Thus, the
court did not err under C.B.,
Mother
claims instead that the juvenile court could not “reasonably rel[y] upon†the
testimony of the adoptability assessor and the social worker, because they had
“included this improper injection into their opinions.†But nothing in the record suggests this
“improper injection†infected the workers’ opinions as a whole, such that the
entirety of their testimony should have been disregarded. Nor is there any indication the juvenile
court was incapable of separating the disputed remarks from the balance of the
testimony. Mother has not presented
error affirmatively by an adequate record.
(Null v. City of Los Angeles
(1988) 206 Cal.App.3d 1528, 1532.)
In sum, the
juvenile court’s refusal to employ the beneficial parental relationship
exception to adoption was supported by substantial evidence and was not an
abuse of discretion. ( ADDIN BA xc <@cs> xl 54 s
BPMSVR000009 xhfl Rep xpl 1 l "In re Bailey J.
189 Cal.App.4th 1308" Bailey J., supra, 189 Cal.App.4th
at pp. 1314-1315.)
II.
Mother
contends the juvenile court’s order denying her request to terminate juvenile
court jurisdiction and return the children to her care was not supported by
evidence and thus was an abuse of discretion.
We disagree.
A.
Relevant Legal Principles
A parent
may bring a petition for modification of any order of the juvenile court
pursuant to section 388 based on new evidence or a showing of changed
circumstances. “The parent requesting
the change of order has the burden of establishing that the change is
justified. [Citation.] The standard of proof is a preponderance of
the evidence. [Citation.]†(In re Michael B. (1992)
8 Cal.App.4th 1698, 1703.)
Determination
of a petition to modify is committed to the sound discretion of the juvenile
court, and absent a showing of a clear abuse of discretion, the decision of the
juvenile court must be upheld. (In re
Stephanie M. (1994) 7 Cal.4th 295, 318-319 (Stephanie M.); In re Robert L. (1993) 21 Cal.App.4th
1057, 1067.) The best interests of the
child are of paramount consideration when the petition is brought after
termination of reunification services. (Stephanie
M., supra,
7 Cal.4th at p. 317.) In
assessing the best interests of the child, the juvenile court looks not to the
parent’s interests in reunification but to the needs of the child for
5 Cal.4th 295, 309 (Marilyn H.).)
B.
Juvenile Court Ruling
The
juvenile court ruled: “The Court finds
that there has been sufficient evidence that there has been a change in
circumstances. Mom has nine months, five
days clean and sober. She’s gainfully
employed. She has her own housing. She’s completed probation. She’s participated in counseling with
Catalyst and Stepping Stone. She’s an
active participant in AA and NA. She’s
working on a workbook with her sponsor. She is not in any relationship. Unfortunately, mother has not shown
sufficient evidence that would be in the best interest of the children that a
Court can dismiss this case and place the children in her care. I wish that mom had made those changes two years
ago instead of now. There’s no guarantee
that she won’t relapse if the children were placed in her care. She’s attended approximately seven
rehabilitation programs with limited success since 2006. She’s had the children back and she continued
to use alcohol when she was trying to reunify.
She was participating in a very unhealthy relationship with a person who
was known to deal drugs. And the Court
is not willing to take a leap of faith and place the children in a situation
that might be detrimental to them.
[¶] So the Court is going to find
that there has been insufficient evidence that it would be in the best interest
of the children. Mother said that the
best interest for her sons, she can give them only love that a mother can give
them. Unfortunately, even though you
love them, you weren’t giving them the care that they needed. And that means you don’t expose them to
domestic violence. You don’t have a
filthy home. You don’t neglect their
needs. You don’t continue to use, and
you don’t participate in other unhealthy relationships. It’s more than just loving them. It’s providing for their care day in and day
out, which I’m not convinced you can do yet.
I think you’re on your way.
You’re a work in progress. I’m
very pleased and proud of the progress you’ve made. You spoke well for yourself. You’re an advocate for yourself. I don’t want this to set you back. I want this for you to go further. I’m very proud of the way things are going
for you now with your past history, and I hope that continues.â€
C.
Analysis
Mother
claims the juvenile court should have focused on “the level of change [she] had
made,†not whether the changes would fail to endure as suggested by the relapse
and the second removal. But whether the
changes would endure was central to the best interests analysis, in which the
juvenile court looks not to the parent’s interests in reunification but to
stability. (Stephanie M., supra, 7 Cal.4th at
p.317; Marilyn H., supra,
5 Cal.4th at p. 309.) As
illustrated by the second removal, the failure of mother’s changes to endure
could require another removal and ensuing instability in the children’s
lives. The court properly focused on
mother’s limited success in rehabilitation as it relates to the children’s need
for permanence and stability.
The
September 2012 hearing on mother’s request to change court order followed the
second detention in December 2011 by just nine months. Mother’s successes in rehabilitation occurred
after the second detention and thus were less than nine months old at the time
of the hearing. Under these
circumstances, the juvenile court had no duty to conclude that mother’s changes
were durable or that returning the children to her care and dismissing the
dependency met the children’s need for permanence
and stability. There was no error or
abuse of discretion.
DISPOSITION
As to each
child, the orders denying Mother’s request to change a court order and
terminating her parental rights are affirmed.
RAYE , P. J.
We concur:
ROBIE , J.
MURRAY , J.
name="_ftn1" title="">[1] The father appealed from the judgment but did
not file an opening brief. His appeal
has been dismissed.
name="_ftn2" title="">[2] Further undesignated statutory references are
to the Welfare and Institutions Code.
