Filed 9/29/17 In re C.H. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

B.M. (Mother), mother of four-year-old C.H., appeals from the juvenile court’s orders denying her supplemental petition under Welfare and Institutions Code, section 388 (388 petition) and terminating her and C.H.’s father D.H.’s (Father) parental rights to C.H.[1] She contends: (1) the court abused its discretion in denying her 388 petition; and (2) the “beneficial parental relationship” exception to termination of parental rights applied. We reject the contentions and affirm the orders.

Factual and Procedural Background

On April 9, 2014, the Sonoma County Human Services Department (Department) filed a petition alleging C.H. was at substantial risk of harm due to his parents’ medical neglect and violent relationship, and Father’s substance abuse. C.H. was suffering from significant developmental delays in the areas of gross and fine motor skills, visual reception, and receptive and expressive language. He also had plagiocephaly, a congenital malformation of the skull. The parents denied C.H. had any special needs and had failed to take him to appointments including pediatric appointments, a CT scan, hearing tests, and genetic testing. Mother reported that she fought daily with Father and that the home environment was not healthy for C.H. She acknowledged having “anger issues” but blamed Father for the domestic violence. The juvenile court detained C.H. and placed him in foster care.

On April 10, 2014, Mother reported that she might have Cherokee ancestry, and the Department provided notice of the proceedings as required by the Indian Child Welfare Act (ICWA).[2] The Department filed the returned receipts it received, and response letters from two tribes stating C.H. was not registered and not eligible for membership.

According to a May 6, 2014 jurisdiction and disposition report, C.H. was living with a foster mother who had extensive experience caring for medically fragile children with special needs. Mother continued to deny that C.H. had any delays. She told the Department social worker about her difficult childhood, which included having an alcoholic mother, entering foster care when she was eight years old, being hospitalized for cutting herself, being treated for a brain tumor, and meeting her abusive father when she was 18 years old. She struggled with anxiety and depression and had been diagnosed with bipolar disorder.

The Department stated that C.H. “needs specialized interventions and further evaluation,” which he was not receiving in his parents’ care. At a jurisdiction and disposition hearing, the juvenile court found ICWA did not apply, declared C.H. a dependent, and found he would be at substantial risk of danger if returned to his parents’ custody.

On October 15, 2014, the Department reported that Mother was “consistently . . . difficult” during C.H.’s medical appointments and was “causing a scene.” During an MRI appointment, she became agitated and yelled at the social worker and “flipp[ed] her off with both hands.” Mother was asked to leave a women’s shelter within the first 48 hours and was staying with an aunt and uncle. The parents continued to have a “tumultuous relationship” and were having separate visits with C.H. due to Mother’s “angry outbursts” towards Father. C.H. was thriving in his foster home and had “come leaps and bounds from where he was when he entered care.”

According to the Department’s six-month review report, C.H. was still delayed but his functioning had improved. Mother was involved in a physical altercation with the aunt with whom she was living, and became so distraught that she purposely cut herself. After spending some time at a psychiatric hospital, she went to stay with a friend, but returned to her aunt’s home after the friend was evicted from her home. After further conflict with the aunt, Mother became homeless and remained so until she entered a sober living home on December 16, 2014. Mother’s psychological evaluation showed that possible diagnoses were post-traumatic stress disorder, anxiety, depression, and bipolar disorder.

Mother was visiting C.H. regularly but continued to have outbursts. She would become upset with C.H., throw things across the room, tell him, “you wasted all of our visit,” and speak negatively to him about Father despite being told not to do so. The social worker believed Mother was not capable of caring for C.H., who needed extensive therapy and evaluations, and a lot of patience and understanding. The Department recommended terminating reunification services for Mother and continuing them for Father. Mother submitted on the report and the juvenile court terminated reunification services for Mother.

According to a March 20, 2015 twelve-month review report, Mother was living in a sober living home and was participating in therapy, anger management classes, support groups, parent education, and visitation. The Department recommended continuing services for Father and the juvenile court followed the recommendations at the twelve-month review hearing.

A September 17, 2015 eighteen-month review report stated that C.H. had been diagnosed with hypotonic cerebral palsy, expressive language delay, and developmental delays. With the help of therapy, he had learned to “army crawl,” self-feed with his fingers, and sit upright. All professionals involved in his care believed it might be possible for him to walk, with intense, consistent participation from his caregiver. The Department recommended that C.H. be returned to Father with family maintenance services. The foster parents were concerned with Father’s ability to ensure C.H. received the therapy needed for him to walk.

On September 29, 2015, Mother filed a 388 petition requesting more visits and a “return to reunification.” She withdrew the petition at the eighteen-month review hearing after agreeing C.H. should be placed with Father. All parties submitted on the recommendation, and the juvenile court ordered that C.H. be placed with Father, with family maintenance services. The foster parents requested de facto parent status, which the court granted.

Shortly thereafter, the Department filed a petition under section 387 (387 petition) seeking to have C.H. placed with the foster parents because Father had lost his job and could not care for C.H. At the hearing on the 387 petition, Father said he wished to have custody of C.H. All parties agreed, and the juvenile court dismissed the 387 petition. A week later, Father reported he was being evicted from his home and could not care for C.H. He had also failed to inform the Department that his wife had had an alcohol relapse. The Department filed a section 387 petition seeking to place C.H. back in foster care and to have the matter set for a permanency hearing under section 366.26 (366.26 hearing). The court granted the petition and scheduled a 366.26 hearing.

Thereafter, Mother filed a 388 petition seeking custody of C.H., with family maintenance services. She was living in a three bedroom home with a roommate, had been attending 12 step meetings and was clean and sober, and had been attending anger management classes, weekly therapy, and regular visits with her son. She attached several letters, including one from her stepmother and father attesting to the positive changes they had seen in Mother.

On June 13, 2016, the de facto parents reported that C.H. had started a preschool program for children with special needs and was enjoying it. He was using a pacer to be ambulatory but needed ankle braces to improve his independent walking. The foster parents believed C.H. needed a “quiet, supportive setting” with a caregiver who can “read his cues” and can give consistent, “one-on-one care.” The foster parents discussed the efforts they had made to help Mother with her relationship with C.H. but felt she had made little progress.

In a 366.26 hearing report, the Department opined it was likely that C.H. would be adopted, and recommended a permanent plan of adoption. C.H. was a “happy, engaging and intelligent child who has his own unique personality.” The Department had identified a potential adoptive family for C.H., and visits with the family had been successful. If things did not work out with the family, the Department was confident that another adoptive home could be found.

The Department reported that Mother had regular supervised visits, twice weekly from April 2014 to January 2016, and weekly visits thereafter. She was always happy to see C.H. and provided him with a lot of affection. On many visits, she attempted to hug and kiss him despite his obvious unhappiness with her touching him. Her presence was often overwhelming for C.H., and “[o]ver the past two years, visitation notes consistently reflect visits that appear overwhelming, chaotic, and based on [Mother’s] desires rather than [C.H.’s] needs.”

On November 28, 2016, the Department filed an addendum report for the 366.26 hearing. The original adoptive family determined they would be unable to provide a good home for C.H. The Department identified a different adoptive family that had “the desire, knowledge, skills and understanding necessary to meet [C.H.’s] needs and provide a stable, loving home.” Visits had begun with that family and the transition was expected to be complete in a month. The Department also noted that C.H. was generally adoptable due to his “young age, his generally happy, positive demeanor, ability to attach, continued positive growth and development and established services to address his needs.” There were multiple homes available to adopt a child with special needs.

A combined hearing on Mother’s 388 petition and the permanency issues took place on December 19, 2016. After hearing testimony from various witnesses including Mother, Mother’s therapist, the maternal grandmother, the Department social worker, the foster parents, and a domestic violence facilitator, the juvenile court denied Mother’s 388 petition, finding it was not in C.H.’s best interest to deviate from moving towards a permanent plan.

After hearing testimony on the permanency issue, including testimony from the Department social worker about C.H.’s adoptability, the juvenile court found that C.H. was adoptable. The court terminated Mother and Father’s parental rights to C.H., stating, “I do believe that the parents do have a relationship with their child, it’s a loving bond, but at this point in time I cannot say that that loving bond outweighs the benefit of the child being adopted.”

Discussion

388 petition

Mother contends the juvenile court abused its discretion in denying her 388 petition because she had proved that her circumstances had changed and that returning C.H. to her care was in his best interest. We disagree.

Under section 388, a parent may petition the juvenile court to change or set aside a prior order “upon grounds of change of circumstance or new evidence.” (§ 388, subd. (a)(1).) The court must order a hearing where “it appears that the best interests of the child . . . may be promoted” by the new order. (§ 388, subd. (d).) “The parent bears the burden of showing both a change of circumstance exists and that the proposed change is in the child’s best interests.” (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) We review the grant or denial of a 388 petition for abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415–416.)

Here, Mother visited C.H. regularly and made some progress in her case plan by participating in a psychological evaluation and attending therapy and domestic violence and anger management classes. At the 388/366.26 hearing, she testified she was taking her medication and was mentally stable. There was evidence, however, that her living situation was still unstable. At the time of the hearing, she had been living in a sober living home for only three or four months. Eleven people lived in the home, which the social worker believed would be chaotic and overstimulating for C.H. Before moving into the sober living home, she lived in various homes for a few weeks to six months at a time, including in a home that “didn’t work out too well” because the landlord had a drinking problem, and a sober living house that “ended up completely fraudulent.”

Moreover, Mother continued to have difficulty understanding and meeting C.H.’s needs, despite having had the assistance of one-on-one parenting instruction. The social worker testified that many of the visits were poor, and gave multiple examples in which Mother placed her own wishes over C.H.’s needs. It appeared she did not understand the type of care C.H. needed to overcome his substantial delays, as she believed that living in a home with 11 former drug users would be acceptable, and testified that she had placed him on the waiting list for a regular day care program at a local junior college. Over two and a half years had passed since the filing of the petition, yet the quality of Mother’s visits had changed little. Mother acknowledged at the 388/366.26 hearing that there were still “eight or nine things” she needed to work on to improve the quality of her visits, and admitted that the bond she shared with C.H. was “not as strong as it should be.”

“To support a section 388 petition, the change in circumstances must be substantial.” (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.) A last minute “change of heart” is insufficient to demonstrate compelling evidence of a “legitimate,” “genuine” or “lasting” change of circumstances. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 447–448.) “A petition which 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., supra, 70 Cal.App.4th at p. 47.) The juvenile court reasonably found there was insufficient evidence of changed circumstances.

Further, even assuming there was a change in circumstances, we note that Mother failed to show the change in court order was in C.H.’s best interest. “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], and in fact, there is a rebuttable presumption that continued foster care is in the best interest of the child. [Citation.] A court hearing a motion for change of placement 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.” (In re Stephanie M. (1994) 7 Cal. 4th 295, 317.) Here, in light of Mother’s unstable living environment, her inability to fully appreciate C.H.’s special needs, and the little progress she made in visitation, the juvenile court could reasonably determine that it would not be in C.H.’s best interest to deviate from moving towards a permanent plan. There was no abuse of discretion.

Beneficial Relationship Exception

Mother contends the “beneficial parental relationship” exception to termination of parental rights applied. We reject the contention.

“[T]he sole purpose of the section 366.26 hearing is to select and implement one of the listed permanent plans.” (In re Marilyn H. (1993) 5 Cal.4th 295, 304.) “If the dependent child is adoptable, there is a strong preference for adoption over the alternative permanency plans.” (In re S.B. (2008) 164 Cal.App.4th 289, 296–297.) At the 366.26 hearing, the juvenile court must first consider adoption as the permanent plan. (§ 366.26, subds. (b),(c)(1).) The court must terminate parental rights if it finds, by clear and convincing evidence, that it is likely that the child will be adopted, unless the court finds that termination would be detrimental to the child pursuant to one of the enumerated conditions listed in section 366.26, subdivision (c)(1). An exception to the adoption preference applies if termination of parental rights would be detrimental to the child because the “parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) The various exceptions to termination of parental rights “merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.” (In re Celine R. (2003) 31 Cal.4th 45, 53.)

The relationship that gives rise to the beneficial relationship exception “characteristically aris[es] from day-to-day interaction, companionship and shared experiences. Day-to-day contact is not necessarily required, although it is typical in a parent-child relationship.” (In re G.B. (2014) 227 Cal.App.4th 1147, 1165.) “ ‘No matter how loving and frequent the contact, and notwithstanding the existence of an emotional bond with the child, “the parents must show that they occupy ‘a parental role’ in the child’s life.” ’ ” (Id. at p. 1165.) “ ‘The age of the child, the portion of the child’s life spent in the parent’s custody, the “positive” or “negative” effect of interaction between parent and child, and the child’s particular needs are some of the variables which logically affect a parent/child bond.” (Id. at p. 1166.)

Here, the juvenile court’s order terminating parental rights was proper under either the substantial evidence standard or the abuse of discretion standard.[3] Although Mother maintained regular weekly supervised visits with C.H. and was always happy to see him, she was unable to move to more frequent or unsupervised visits because the quality of the visits was poor. (In re K.P. (2012) 203 Cal.App.4th 614 [regular weekly visits that had not progressed beyond supervised visitation were insufficient to establish that termination of parental rights would be detrimental to child].) After more than two and a half years, she did not fully understand C.H.’s needs and was unable to adapt her behavior to meet those needs. For example, she pushed him to stand or walk when he was unable or too tired to do so, “pleaded with him to eat” when he was obviously not hungry, and constantly spoke to him and tried to cuddle or hug him when C.H. was overstimulated and wished to be left alone. She had not demonstrated that she was capable of providing the high level of care that C.H. required due to his disability and developmental delays. While Mother undoubtedly loves C.H., their visits did not reflect a relationship that would promote C.H.’s well-being to such a degree as to outweigh the benefit to him of a stable and permanent adoptive home. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1316 [supervised weekly visits, amounting to little more than play dates with a loving adult was insufficient to establish that termination of parental rights would be detrimental to the child].) Mother did not meet her burden of showing that the beneficial relationship exception to termination of parental rights applied.[4]

Disposition

The juvenile court’s orders are affirmed.

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McGuiness, P.J.

We concur:

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Pollak, J.

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Siggins, J.