Filed 3/22/22 In re L.M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed.

William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant.

Tom Bunton, County Counsel, and Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.

I.

INTRODUCTION

After the juvenile court denied A.M. (Mother) reunification services, she filed a petition under Welfare and Institutions Code section 388^[1] seeking reunification services. The juvenile court denied the petition, terminated parental rights to Mother’s son, L.M., and freed him for adoption by his caregivers. Mother appeals, arguing that the juvenile court erroneously denied her section 388 petition and refused to apply the parental bond exception to the termination of her parental rights to L.M. We disagree and affirm.

II.

FACTUAL AND PROCEDURAL BACKGROUND

When L.M. was nine weeks old, Mother was awoken by his inconsolable crying and noticed that his arm was limp. Mother took L.M. to the hospital, where he was found to have suffered a broken arm, ten broken ribs, a brain bleed, and a fractured humerus. The rib fractures were about two to three weeks old and in “various stages of healing.” L.M.’s physician considered the injuries to be “highly concerning for non-accidental trauma.” A later examination of L.M. revealed that he had suffered 13 broken ribs, as well as a broken femur.

Mother claimed she did not understand how L.M. could have suffered his injuries because she and Father (who is not a party to this appeal) were L.M.’s only caregivers and he could not crawl, roll, or move on his own.

Father was arrested and charged with child cruelty. While in custody, he admitted that he caused L.M.’s injuries. Mother was eventually arrested for child cruelty as well. Like Father, she admitted that she may “‘have been a little too rough with’” L.M. Mother also admitted that she had seen Father being “rough” with L.M. and had told him not to grab or pull L.M. by his arm on several occasions.

In June 2020, San Bernardino County Child and Family Services (CFS) detained L.M. and filed a petition on his behalf under section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), (e) (severe physical abuse), (g) (no provision for support) and (j) (abuse of a sibling).

In its July 2020 jurisdiction/disposition report, CFS recommended that the juvenile court sustain the section 300 petition, deny reunification services to Mother, and set a selection and implementation hearing for L.M. CFS reported that a social worker had interviewed Mother and she denied inflicting any of L.M.’s injuries. She claimed that Father had inflicted all of the injuries and believed that Father had broken L.M.’s ribs by swaddling him too tightly. However, she also reported that Father once tossed L.M. on the couch, picked him up inappropriately by his arms or hands several times, and that L.M. frequently screamed and cried unusually loudly when Father was changing him. In CFS’s opinion, Mother disregarded the signs of Father’s abuse and “allowed [him] to torture [L.M.]”

At the contested jurisdiction hearing in October 2020, the juvenile court amended the allegations against Mother to include the finding that L.M. “‘was physically abused while in the care and custody of’” Mother while finding Father to be the person who actually abused the child. The juvenile court sustained the petition’s allegations and declared L.M. a dependent under section 300, subsections (a), (b), (e), (g) and (j).

At the contested dispositional hearing held on October 2020, the social worker

testified that CFS recommended bypassing reunification services. In the social worker’s opinion, Mother significantly downplayed her heavy marijuana use and its effects on her mental health. Mother also had failed to disclose the extent of her anxiety and depression, which led her to self-medicate with marijuana. Mother was under the influence of marijuana “every day” when caring for L.M. Her psychologist opined that her marijuana use “masked her ability to recognize” the symptoms of her mental health issues. It also impaired her ability to properly care for L.M. and ensure his safety.

Mother’s psychologist also testified at the hearing. In his opinion, Mother exhibited “‘minimal insight’” into her mental health issues. She did not understand her mental health symptoms or how to relate to them. Mother also admitted to the psychologist that she was non-compliant with the medication prescribed for her mental health issues and instead had relied “extremely heavily” on marijuana to self-medicate for about eight years.

After receiving testimony from Mother, the juvenile court found that reunification was not in L.M.’s best interests and therefore bypassed reunification services for Mother and Father. The court then set the matter for a selection and implementation hearing under section 366.26.

In its February 2021 section 366.26 report, CFS requested a continuance to initiate a placement for L.M. with his maternal grandfather, Mr. M., in Texas. The juvenile granted the request and also allowed Mr. M. to visit L.M. in California while the placement was pending approval.

In August 2021, the placement was approved and L.M. was placed with Mr. M. in Texas. Although L.M. was initially hesitant to receive affection from Mr. M. and his wife, Mrs. M., he eventually grew comfortable enough to seek nurture and affection from them.

In September 2021, Mother filed her section 388 petition asking the juvenile court to reinstate reunification services and to increase the frequency of her visits with L.M. In her declaration in support of her petition, Mother reported that she had completed an anger management course, an outpatient program, participated in individual counseling, and began seeing a psychiatrist. She stated that she was compliant with her prescribed medication and had stable housing. Mother attached a medication log, dated July 15, 2021, indicating that her most recent refill for psychotropic medication dated to February 9, 2021. Mother also reported that she had sought a dissolution of her marriage with Father. Additionally, Mother provided a September 2021 progress letter from her outpatient substance abuse program, which revealed 16 positive, ten negative, four missed, and two refused drug tests.

In October 2021, CFS recommended terminating parental rights and freeing L.M. for adoption by Mr. and Mrs. M. At the time, L.M. was healthy, happy, and developmentally on track for a one-year-old. Mr. and Mrs. M. had provided for all of his needs, wanted to adopt him, and were committed to raising him into adulthood.

In November 2021, a social worker interviewed Mother in order to respond to her section 388 petition. Mother continued to believe that CFS detained L.M. because Father used “‘tight pressure to swaddle [L.M.]’” Mother was pregnant with another child and intended to move in with the father, who was her boyfriend. However, a month later Mother reported that she was moving in to her grandmother’s house with her boyfriend.

Mother reported that she had been sober since July 4, 2021. She admitted that her positive drug tests were the result of her marijuana use, but explained that she had started a recovery program in October 2021. She had also attended a domestic violence, a parenting class, and attended four to six private therapy sessions before switching to another provider, where she completed seven sessions. According to Mother’s therapist, Mother was working on her substance abuse issues, anxiety, and coping skills. Mother’s therapist believed Mother was able to understand why L.M. had been removed and was learning how to take responsibility for her actions.

The social worker also spoke with Mr. M., who reported that he continued to have concerns about Mother. In Mr. M.’s view, Mother lacked stability, protective capacity, and responsibility. Mr. M. and Mother were recently estranged for a time because he expressed his concerns to Mother about her “‘lack of responsibility.’” Mr. M. remained concerned that Mother’s lack of stability would place L.M. in to a “‘bad situation.’”

At a hearing in November 2021, the juvenile court summarily denied Mother’s section 388 petition without holding an evidentiary hearing. The court found that that there was only “some change” in Mother’s circumstances, as opposed to a material change in circumstances, and that reunification services were “clearly not in the best interest of [L.M.]”

The juvenile court then held a section 366.26 hearing. After hearing from the parties, the court found that the parental bond exception did not apply, terminated Mother’s parental rights, and freed L.M. for adoption by Mr. and Mrs. M. Mother timely appealed.

III.

DISCUSSION

1. The Juvenile Court Properly Denied Mother’s Section 338 Petition

Mother argues the juvenile court abused its discretion by denying her section 388 petition. We disagree.

“Section 388 permits the parent of a dependent child to petition the juvenile court for a hearing to modify an earlier order on the basis of changed circumstances or new evidence. (§ 388, subd. (a)(1).) The petitioning party bears the burden of showing that there is new evidence or changed circumstances and that the proposed modification would be in the best interests of the child. [Citation.]

“In determining whether the petitioning party has carried his or her burden, ‘the court may consider the entire factual and procedural history of the case.’ [Citation.] ‘Whether the juvenile court should modify a previously made order rests within its discretion, and its determination may not be disturbed unless there has been a clear abuse of discretion.’ [Citation.]

“‘Not every change in circumstance can justify modification of a prior order.’ [Citation.] The change in circumstances supporting a section 388 petition must be material. [Citations.] In the context of a substance abuse problem that has repeatedly resisted treatment in the past, a showing of materially changed circumstances requires more than a relatively brief period of sobriety or participation in yet another program. [Citations.]

“As to the best interests element, after the court has bypassed or terminated reunification services and set the matter for a section 366.26 hearing, the focus of the case shifts from the parents’ interest in the care, custody, and companionship of the child to the needs of the child for permanency and stability. [Citations.] A court entertaining a section 388 petition at this stage in the proceedings ‘must recognize this shift of focus in determining the ultimate question before it, that is, the best interest of the child.’ [Citation.]” (In re N.F. (2021) 68 Cal.App.5th 112, 120-121.)

The juvenile court did not abuse its discretion by denying Mother’s section 388 petition because Mother did not meet her burden of showing that her circumstances had changed. Sixteen months after L.M.’s removal from her care, Mother still believed L.M. was removed because Father had caused at least some of L.M.’s injuries by accidentally swaddling him too tightly. Mother thus demonstrated little, if any, insight into cause of L.M.’s injuries or the reasons for L.M.’s removal. Although Mother was improving, she was still “learning to be more accountable” and to not “blam[e] other people for her actions.”

Mother also continued to use marijuana during the bulk of the dependency proceedings. Although Mother tested negative for drugs ten times, she tested positive for marijuana 16 times, missed 4 tests, and refused two tests. Even if Mother had remained sober between July 4, 2021 and the section 388 hearing in November 2021, this brief period of sobriety is insufficient to show changed circumstances under section 388. (See In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9 [“[It is the nature of addiction that one must be ‘clean’ for a much longer period than 120 days to show real reform”].)

Mother also failed to consistently take her psychotropic medication as prescribed. Before the hearing on her section 388 petition, Mother’s July 15, 2021 medication log indicated that the most recent refill of her psychotropic medication was a 30-day refill on February 9, 2021. There is no indication that Mother continued to take her psychotropic medication as prescribed beyond mid-March, 2021. This shows that Mother continued to ignore her mental health issues, which negatively affected her ability to care for and protect L.M.

The trial court also properly found that reunification services were not in L.M.’s best interests. L.M. was removed from Mother’s care less than three months after his birth. By the time of the hearing on Mother’s section 388 petition, L.M. had lived with Mr. and Mrs. M. for about 14 months—nearly eight times longer than he had lived with Mother. L.M. had become emotionally bonded with Mr. and Mrs. M. and was happy, healthy, and developmentally on-track. Mr. and Mrs. M. were committed to adopting L.M. and providing him with a permanent, stable home until adulthood.

On the other hand, Mother’s circumstances were unstable. Mother was pregnant with another child and initially intended to move in with her boyfriend, but they instead moved in with Mother’s grandmother. Mr. M. and the social worker both expressed concern about Mother’s ability to maintain stability for a long period of time.

Given Mother’s questionable sobriety and ability to provide L.M. stability, the trial court reasonably found that Mother failed to show sufficiently changed circumstances and that L.M.’s “‘best interests in permanency and stability would be furthered by’ derailing the child’s adoption.” (In re N.F., supra, 68 Cal.App.5th at p. 122.) The juvenile court thus did not abuse its discretion in denying Mother’s section 388 petition.

2. The Juvenile Court Properly Found that the Parental Bond Exception Did Not Apply

Mother contends the juvenile court erred by terminating her parental rights because the parental bond exception applied. We disagree.

When the juvenile court finds that a dependent child is likely to be adopted, it must terminate parental rights and select adoption as the permanent plan unless it finds that termination would be detrimental to the child under one of several exceptions. (§ 366.26, subd. (c)(1); In re Caden C. (2021) 11 Cal.5th 614, 630-631.) “t is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” ([i]In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350, disapproved on another ground by In re Caden C., supra, at p. 636, fn. 5.)

To establish that the parental bond exception applies, the parent must show three things: “The parent must show regular visitation and contact with the child, taking into account the extent of visitation permitted. Moreover, the parent must show that the child has a substantial, positive, emotional attachment to the parent — the kind of attachment implying that the child would benefit from continuing the relationship. And the parent must show that terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home. When the parent has met that burden, the parental-benefit exception applies such that it would not be in the best interest of the child to terminate parental rights, and the court should select a permanent plan other than adoption.” (In re Caden C., supra, 11 Cal.5th at pp. 636-637.)

Our review of the juvenile court’s ruling on whether the beneficial parental exception applies incorporates both the substantial evidence and abuse of discretion standards. (Caden C., supra, 11 Cal.5th at pp. 639-641.) We apply the substantial evidence standard of review to the first two prongs of the exception and the abuse of discretion standard to the third prong. (Ibid.)

Even if Mother satisfied the first two prongs, the trial court did not abuse its discretion in finding that she did not satisfy the third prong. “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.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)

Nothing in the record suggests Mother’s relationship with L.M. was so significant that severing it would greatly harm L.M. L.M. may be “attached” to Mother, as Mother claims, but he was happy, healthy, thriving, and developing appropriately in Mr. and Mrs. M’s home. L.M. is emotionally bonded to Mr. and Mrs. M., and seeks them out for nurture and comfort. They have provided for all of L.M.’s needs, want to adopt him, and are committed to providing him a safe, stable, and secure home until he reaches adulthood. In short, there is no indication that the detriment (if any) that L.M. would suffer from terminating Mother’s parental rights “‘outweigh[s] the sense of security and belonging an adoptive home would provide.’” (In re Jason J. (2009) 175 Cal.App.4th 922, 938.)

The trial court thus did not abuse its discretion by finding that the Mother did not satisfy the third prong of parental bond exception. As a result, the trial court properly terminated Mother’s parental rights to L.M. and freed him for adoption by Mr. and Mrs. M.

IV.

DISPOSITION

The juvenile court’s orders denying Mother’s section 388 and terminating her parental rights to L.M. are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

McKINSTER

Acting P. J.

MILLER

J.

^[1] All further statutory references are to the Welfare and Institutions Code.