Filed 8/1/17 In re F.T. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO


In re F.T., a Person Coming Under the Juvenile Court Law.


RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,

Plaintiff and Respondent,

v.

G.P. et al.,

Defendants and Appellants.

E067925

(Super.Ct.No. RIJ1300382)

OPINION


APPEAL from the Superior Court of Riverside County. Jacqueline C. Jackson, Judge. Affirmed.
William Hook, by appointment of the Court of Appeal, for Defendant and Appellant G.P.
Julie E. Braden, by appointment of the Court of Appeal, for Defendant and Appellant N.M.R.
Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
G.P. (mother) and N.R. (father) appeal from an order terminating their parental rights to their son F.T. (sometimes child). They contend that the juvenile court erred by:
1. Denying the mother’s “changed circumstances” petition. (Welf. & Inst. Code, § 388.)
2. Finding that the child’s relationship to the mother did not trigger the “beneficial parental relationship” exception to termination. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).)
The Riverside County Department of Public and Social Services (Department) responds, among other things, that even assuming these contentions are well-founded with respect to the mother, they afford no basis for reversing the termination order as to the father. However, we will reject the parents’ contentions on the merits. Thus, we need not decide this issue.
I
FACTUAL AND PROCEDURAL BACKGROUND
In 2013, when this dependency was filed, F.T. was two. In 2017, when parental rights were terminated, he was six. He is still six as of the date of this opinion.
The mother has six children. The oldest four — all girls — have the same father. F.T. is her fifth child; he has a different father. In 2015, while this dependency was pending, the mother gave birth to her sixth child, another boy, by yet another father.
In April 2013, the mother and her then-boyfriend were found in possession of marijuana, under circumstances indicating the intent to sell; they were arrested. When the Department investigated, it developed evidence that the mother was abusing methamphetamine and alcohol, the mother was unemployed, the mother had a history of choosing boyfriends with criminal records, the girls’ father had committed domestic violence against the mother, and the girls’ father had sexually abused one of the girls.
As a result, the Department detained the children and filed a dependency petition as to them. The two older girls and F.T. were placed together in a foster home; the two younger girls were placed together in a different foster home.
The mother identified one of her ex-boyfriends as F.T.’s father, but subsequent paternity testing proved that this was incorrect.
In June 2013, at the jurisdictional/dispositional hearing, the juvenile court found that it had jurisdiction based on failure to protect (Welf. & Inst. Code, § 300, subd. (b)), failure to support (solely as to the children’s fathers) (id., subd. (g)), and either sexual abuse (id., subd. (d)) or abuse of a sibling (id., subd. (j)). It formally removed the children from parental custody and ordered that the mother be provided with reunification services.
In August 2014, at the 12-month review hearing, the juvenile court terminated reunification services and set a permanency planning hearing under Welfare and Institutions Code section 366.26 (section 366.26).
Around September 2014, F.T. started to have medical and behavioral problems. He was diagnosed with failure to thrive. He refused to eat meat or vegetables. He threw “intense” tantrums. He hit other children; when he was frustrated, he would punch himself in the face. He claimed that imaginary people were hitting him.
In light of this behavior, F.T.’s foster parent was not willing to adopt him or to become his legal guardian; there was no other prospective adoptive family. As a result, the section 366.26 hearing was continued again and again; ultimately, it was delayed from 2014 to 2017.
By January 2015, however, F.T. was seeing a nurse and a nutritionist monthly. Around February 2015, he started receiving individual therapy. By March 2016, he no longer had any “major behavioral issues” and he did not have failure to thrive. Once his problems had resolved, adults generally found him to be “adorable” — “a very sweet and delightful boy.”
In March 2016, the mother filed a “changed circumstances” petition under Welfare and Institutions Code section 388 (section 388). The juvenile court set a hearing on the petition. This, too, was continued repeatedly, into 2017.
Meanwhile, in July 2016, the father contacted the social worker for the first time. He admitted that he had known for at least two years that F.T. was his son; he also admitted knowing that F.T. was in foster care. He explained that he had come forward at that point because the mother had recently told him that F.T. might be adopted. He wanted F.T. placed with him instead. Paternity testing confirmed that he was, in fact, F.T.’s biological father.
Also in July 2016, the Department identified a prospective adoptive family for F.T. In August 2016, they began having visits with him. In November 2016, he was placed with them.
In March 2017, the trial court held a combined hearing on the section 388 petition and the section 366.26 issues. After taking evidence, it denied the section 388 petition, as not in the child’s best interests. It then found that the child was adoptable, and that there was no applicable exception to termination. It therefore terminated parental rights.
II
EVIDENCE PRESENTED ON THE ISSUES RAISED ON APPEAL
The evidence at the combined section 388 and section 366.26 hearing consisted of the mother’s petition, ten social worker’s reports, and photos, plus the oral testimony of the mother, the social worker, and an expert. We confine our consideration to this evidence, which showed the following.
At the time of the hearing, the mother was 38 years old. She had started using methamphetamine when she was 15. She was sober from 1993 through 1998, but then she relapsed. She had been through Drug Court in 2008, 2011, and 2013.
In 2013, as part of her reunification services in this case, the mother completed a substance abuse program. It required her to “follow up” with an aftercare program and a self-help program, but she failed to do so. In 2014, she started using methamphetamine again.
In June 2014, she completed domestic violence training.
In December 2014, she completed a 52-week parenting education program. When the social worker asked her what she had learned, she was “unable to verbalize [it].”
The mother claimed to have completed individual therapy, but she could not provide a letter of completion and “was unable to provide the name and location of the therapist.”
The mother testified that she had not used drugs since January 15, 2015. In July 2016, however, when the social worker asked her when the last time was she had used methamphetamine, she was “unsure.”
In December 2015, she gave birth to her youngest child; the Department investigated but decided not to file a dependency regarding him.
In January 2016, she obtained a restraining order against the father of her baby, based on domestic violence. At the time of the hearing, she was not in a relationship.
In March 2016, the mother filed her section 388 petition.
Also around March 2016, she started living with her aunt and uncle.
In either June or August 2016, she started a full-time job; at the time of the hearing, her salary was $11.50 an hour.
In July 2016, she started a substance abuse program again. However, she stopped going after only one meeting.
In September 2016, she started a substance abuse program yet again. This time, she completed it, in January 2017. She then started an aftercare program. In July through November 2016, the mother tested negative for drugs.
The mother visited the child once a month, for one hour at a time. He was “excited” to see her. He did not seem anxious. They would talk and play games.
In August 2016, the prospective adoptive parents started visiting the child. They visited him on weekdays once or twice a week, as well as overnight and on weekends. In November 2016, he was placed with them.
As of February 2017, they had “bonded well” with him. They provided “exceptional care.” They had “figured out different creative ways to get him to eat different types of foods”; as a result, he had gained weight and grown three inches. His teachers reported that he was able to stay focused in class and to sit for longer periods of time. He “frequently” told the prospective adoptive parents that he had “decided to live with [them].”
Minor’s counsel represented to the court: “[F.T.] told me on two separate occasions he would like to remain with the prospective adoptive family.”
In October and November 2016, Dr. Robert Suiter, an expert forensic psychologist, conducted a bonding study. F.T. told him that the mother was a “really good mom.” F.T. volunteered that “he has wanted to live with her.”
Dr. Suiter watched the mother play games with F.T. for about 30 minutes. During this time, she was “affectionate,” “warm,” “animated,” “calm,” and “patient.” F.T. was “very comfortable” and “very responsive”; he laughed often.
Dr. Suiter concluded: “[F.T.] is well-bonded to his mother. He looks to her as a source of safety and security. He considers she is loving, caring and supportive of him in every respect.” He characterized this as an opinion regarding “actual bonding”; he differentiated that from an opinion as to “whether . . . if the child was going to reside with her, . . . she could sustain the bonding with the child. In other words, if she could sustain adequate parenting with the child.”
III
THE DENIAL OF THE MOTHER’S SECTION 388 PETITION
The parents contend that the juvenile court erred by denying the mother’s section 388 petition.
A. Additional Factual and Procedural Background.
In her section 388 petition, the mother requested six more months of reunification services. As changed circumstances, she alleged that she had completed “a service plan,” including a substance abuse program, a parent education program, and a domestic violence program; she had given birth to and was caring for another child; and she had obtained a restraining order against her boyfriend.
The trial court opined, “I do believe the mother’s circumstances have changed.” However, it found that granting the petition would not be in the child’s best interest. It noted that F.T. had not been in the mother’s care for four years. It also found that, although the mother had “done well with [her] current sobriety,” she was at risk for relapse.
The trial court gave little weight to the bonding study, because “30 minutes is not a substantial amount of time . . . .” “With the bonding study, we see a moment in time, and it’s clear there’s a relationship. It’s not necessarily clear that that will continue and be a healthy relationship and . . . parenting style for this child.” It also noted that Dr. Suiter could not say whether the mother “would be able to sustain adequate parenting . . . day-to-day.”
It concluded, “[F.T.]’s been waiting a very long time for his permanency. He has found a good home, willing to give him permanency. . . . [¶] So the request to try again, so to speak, really isn’t in [F.T.]’s best interest at this point in time.”
B. Discussion.
“Section 388 accords a parent the right to petition the juvenile court for modification of any of its orders based upon changed circumstances or new evidence. [Citations.]” (In re Alayah J. (2017) 9 Cal.App.5th 469, 478, fn. omitted.) “At the hearing on the section 388 petition, the parent has the burden of proving by a preponderance of the evidence that there is new evidence or that there are changed circumstances that make a change in placement in the best interests of the child. [Citation.]” (In re Priscilla D. (2015) 234 Cal.App.4th 1207, 1216-1217.)
“After the termination of reunification services, the parents’ interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point, ‘the focus shifts to the needs of the child for permanency and stability’ [citation].” (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) “A court . . . at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child.” (Ibid.) “The focus on the child’s best interests remains in place whether or not a parent seeks additional services under section 388. [Citation.]” (In re G.B. (2014) 227 Cal.App.4th 1147, 1163.)
“‘The petition is addressed to the sound discretion of the juvenile court, and its decision will not be overturned on appeal in the absence of a clear abuse of discretion.’ [Citation.]” (In re J.T. (2014) 228 Cal.App.4th 953, 965.) “‘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.]” (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319, original quotation marks corrected.) “‘The denial of a section 388 motion rarely merits reversal as an abuse of discretion.’ [Citation.]” (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)
The mother cites In re Kimberly F. (1997) 56 Cal.App.4th 519 for the proposition that the factors that a court should consider in evaluating a section 388 petition include “(1) The seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.” (Id. at p. 532.)
More recently, however, in In re J.C. (2014) 226 Cal.App.4th 503, the court stated: “[W]e decline to apply the Kimberly F. factors if for no other reason than they do not take into account the Supreme Court’s analysis in Stephanie M., applicable after reunification efforts have been terminated. . . . As stated by one treatise, ‘In such circumstances, the approach of the court in the case of . . . Kimberly F. . . . may not be appropriate since it fails to give full consideration to this shift in focus.’ [Citation.] We instead follow the direction of our Supreme Court, holding that after reunification services have terminated, a parent’s petition for either an order returning custody or reopening reunification efforts must establish how such a change will advance the child’s need for permanency and stability.” (Id. at p. 527, italics added.)
The mother claims that “the evidence at the modification hearing established that reinstating [her] reunification services would advance [F.T.]’s need for permanency and stability as [she] had remedied her safety issues and changed her life around such that she was now able to appropriately care for [F.T.].” The juvenile court, however, found that the mother had not proven that she had remedied the issues that led to the dependency — first, because she was still at risk of relapse, and second, because Dr. Suiter specifically could not say whether she would be able to “sustain adequate parenting.” Given that the mother had the burden of proof, we cannot say that this was an abuse of discretion.
The mother minimizes her risk of relapse, claiming that there was no evidence that she had “a pattern of periods of sobriety alternating with recurring drug use.” However, there was evidence that she had repeatedly gone through Drug Court, which would have included substance abuse treatment and testing, without lasting success. In 2013, she went through substance abuse treatment as part of her reunification services, but she started using again in 2014. In any event, a history of over 15 straight years of methamphetamine abuse — even standing alone — is sufficient evidence of a substantial risk of relapse.
The mother also argues that reinstating reunification services would advance F.T.’s interest in permanency and stability because he was bonded to her, whereas he was “only just starting to develop a relationship” with the prospective adoptive parents. This assumes a rosy view of his bond with the mother, and a gloomy view of his bond with the prospective adoptive parents, which the juvenile court was not required to take.
First, the juvenile court could reasonably doubt that F.T. had a bond with the mother such that giving her reunification services would further his interest in permanency. It gave the bonding study very little weight, because Dr. Suiter had actually observed the mother interacting with F.T. only for about 30 minutes. We would add to this that he only observed them playing games together. It could reasonably conclude that this shed very little light on how the mother would interact with F.T. under real-life parenting conditions.
Also, as mentioned, this ignores the mother’s risk of relapse, which meant that any bond with her might actually only delay permanency. Even Dr. Suiter admitted that he had no opinion as to whether the mother could sustain adequate parenting.
Second, the juvenile court could reasonably find that F.T. had a healthy bond with the prospective adoptive parents. They started visiting him six months before the hearing; they spent substantial amounts of time with him, including weekends and overnight visits. When they could not visit, they phoned him or video-chatted with him. The prospective adoptive mother took time off from work so she could spend time with him on weekdays. “During these visits, the . . . prospective adoptive family was able to start the bonding process . . . and establish comfort and trust.”
F.T. was placed with the prospective adoptive parents four months before the hearing. The prospective adoptive mother (who was a teacher) took almost two months off work to homeschool him before he started his new school. After being chronically undersized, F.T. was finally “starting to grow at a normal rate.” He was “less anxious and better focused.” He was “demonstrating signs of secure attachment to his prospective adoptive family.” “They [we]re meeting his needs and providing him with a stable and secure home filled with unconditional love.”
F.T. repeatedly told the prospective adoptive parents that he had “decided” to live with them. He also told minor’s counsel twice that he wanted to live with them. Admittedly, he told Dr. Suiter that he wanted to live with the mother. However, Dr. Suiter used an odd choice of words — “[F.T.] stated, spontaneously, he has wanted to live with her.” (Italics added.) This suggested that the desire had passed. In any event, F.T. said this before he had yet been placed with the prospective adoptive parents.
Finally, the mother asserts: “Even if we were to assume that [F.T.] was bonded to both [the mother] and his caretakers, the law favors the parent.” Not so. While “preservation of the family” is state policy, it is also state policy “to ensure the safety, protection, and physical and emotional well-being of children who are at risk of . . . harm.” (Welf. & Inst. Code, § 300.2, italics added.) These policies are constantly in tension; after reunification services have been terminated, the interest in family preservation is at its lowest ebb, while the interest in the well-being of the child is at its highest tide. We cannot say that the trial court made the wrong trade-off between them.
IV
THE FINDING THAT THE BENEFICIAL
PARENTAL RELATIONSHIP EXCEPTION DID NOT APPLY
The parents contend that the juvenile court erred by finding that the beneficial parental relationship exception to termination did not apply.
“Adoption is the Legislature’s preferred permanent plan. [Citation.]” (In re D.M. (2012) 205 Cal.App.4th 283, 290.) Thus, as a general rule, at a section 366.26 hearing, if the juvenile court finds that the child is adoptable, it must terminate parental rights. (Welf. & Inst. Code, § 366.26, subds. (b)(1) & (c)(1).) There is an exception to this rule, however, if “[t]he court finds a compelling reason for determining that termination would be detrimental to the child” (id., subd. (c)(1)(B)) for one of six specified statutory reasons. (Id., subd. (c)(1)(B)(i)-(vi).) One such reason is that “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (Id., subd. (c)(1)(B)(i).)
“The ‘benefit’ prong of th[is] exception requires the parent to prove his or her relationship with the child ‘promotes 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.’ [Citations.]” (In re K.P. (2012) 203 Cal.App.4th 614, 621.) “‘To trigger the application of the parental relationship exception, the parent must show the parent-child relationship is sufficiently strong that the child would suffer detriment from its termination.’ [Citation.]” (In re Marcelo B. (2012) 209 Cal.App.4th 635, 643.)
“‘Once the court determines the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). [Citations.]”’ (In re G.B., supra, 227 Cal.App.4th at p. 1165.)
“In reviewing challenges to a trial court’s decision as to the applicability of th[is] exception[], we . . . employ the substantial evidence or abuse of discretion standards of review depending on the nature of the challenge. [Citation.] We . . . apply the substantial evidence standard of review to evaluate the evidentiary showing with respect to factual issues, such as whether the child has a close and strong bond with a [parent]. [Citations.] However, a challenge to the trial court’s determination of questions such as whether . . . there is a compelling reason for determining that termination of parental rights would be detrimental to the child ‘“is a quintessentially discretionary determination.”’ [Citation.] We review such decisions for abuse of discretion. [Citation.]” (In re J.S. (2017) 10 Cal.App.5th 1071, 1080.)
Here, there was certainly evidence that F.T. had warm and affectionate feelings toward the mother. However, there was no evidence that he would suffer detriment if parental rights were terminated. For example, there was no evidence that he was upset when he had to leave her or that he pined for her when they were apart. To the contrary, the social worker reported that, in December 2016 and again in January 2017, he seemed happy to see the mother at the beginning of a visit, but he also seemed happy when the visit ended and he “returned to the care of his prospective adoptive parents.” Admittedly, in 2014, after a year or so in foster care, he showed behavioral and physical symptoms of distress. However, these cleared up before he was placed with the prospective adoptive parents, and they did not recur after he was placed with them. In fact, his eating habits and his behavior improved.
The mother relies on In re S.B. (2008) 164 Cal.App.4th 289. There, the child had been removed from her father’s custody and placed with her maternal grandparents. (Id. at p. 293.) In early visits, the child became upset at the end and wanted to leave with the father. (Id. at p. 294.) In the opinion of one social worker, who had observed a later visit, there would be “some detriment” to the child if parental rights were terminated. (Id. at p. 295.) An expert carried out a bonding study and concluded that there was “a potential for harm” to the child from terminating the parental relationship. (Id. at p. 296.) The trial court nevertheless found that termination would not be detrimental, in part because the grandparents were willing to allow the father to continue to visit the child. (Id. at pp. 295-296, 300.) The appellate court held that this was error: “The [trial] court recognized that [the child] would benefit from continuing her relationship with [the father] and based its decision to terminate parental rights in part on the grandparents’ willingness to allow [the father] to continue to visit [the child]. We do not believe a parent should be deprived of a legal relationship with his or her child on the basis of an unenforceable promise of future visitation by the child’s prospective adoptive parents.” (Id. at p. 300.)
In summing up, S.B. stated: “The record shows [the child] loved her father, wanted their relationship to continue and derived some measure of benefit from his visits. Based on this record, the only reasonable inference is that [the child] would be greatly harmed by the loss of her significant, positive relationship with [the father]. [Citation.]” (In re S.B., supra, 164 Cal.App.4th at pp. 300-301.)
Later, however, the court in In re Jason J. (2009) 175 Cal.App.4th 922 — i.e., the same court that decided S.B. — cautioned: “The S.B. opinion must be viewed in light of its particular facts. It does not, of course, stand for the proposition that a termination order is subject to reversal whenever there is ‘some measure of benefit’ in continued contact between parent and child.” (In re Jason J., supra, at p. 937.)
And in In re C.F. (2011) 193 Cal.App.4th 549, the same court stated: ‘Our effort in Jason J. to discourage the improper and inaccurate use of our opinion in S.B. has not been successful. Following Jason J., in literally dozens of unpublished opinions various panels of this court and courts in other appellate districts have been required to distinguish S.B. on its facts and repeatedly reject the notion a parent can prevent termination of parental rights by merely showing there is some measure of benefit in maintaining parental contact.” (Id. at p. 558.) “[W]e once again emphasize that S.B. is confined to its extraordinary facts. It does not support the proposition a parent may establish the parent-child beneficial relationship exception by merely showing the child derives some measure of benefit from maintaining parental contact. . . . [C]ontact between parent and child will always ‘confer some incidental benefit to the child,’ but that is insufficient to meet the standard. [Citation.]” (Id. at pp. 558-559.)
Thus, In re S.B. does not stand for the proposition that evidence of benefit from the relationship is necessarily also evidence of detriment from its termination. Rather, there, the trial court was faced with affirmative evidence of detriment, which it ignored for an improper reason. Here, there simply was no such evidence of detriment.
We therefore conclude that the juvenile court could properly find that the beneficial parental relationship exception to termination did not apply.
V
DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.


We concur:

McKINSTER
J.

SLOUGH
J.