In re V v. CA4/2 ( 2015 )

Filed 4/16/15 In re V.V. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 V.V., a Person Coming Under the
Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E061985
Plaintiff and Respondent, (Super.Ct.No. SWJ1300364)
v. OPINION
N.V.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John M. Monterosso,
Judge. Affirmed.
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and
Appellant.
Gregory P. Priamos, County Counsel, and Julie Koons Jarvi, Deputy County
Counsel, for Plaintiff and Respondent.
1
Defendant and appellant N.V. (mother) is the biological mother of V.V., the child
who is the subject of this dependency proceeding. She appeals from the juvenile court’s
orders denying her petition pursuant to Welfare and Institutions Code1 section 388, and
terminating her parental rights with respect to the child pursuant to section 366.26. She
contends the court should have granted her further reunification services and authorized
liberalized visitation, instead of terminating her parental rights and establishing a
permanent plan of adoption for the child. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND2
On June 4, 2013, the Riverside County Department of Public Social Services
(DPSS) filed a dependency petition with respect to the newborn girl V.V. Mother had
received no prenatal care, the child was born at 35 weeks’ gestation, and both mother and
child tested positive for amphetamines. The father of the child was unknown; mother
declined to identify him to the social worker. Mother reported to the social worker that
she was currently “staying at a friend’s house because she lost her home.” Mother had
one other child, a daughter who was staying with a maternal cousin. Mother indicated
that she was unemployed, and planned to get money from unemployment and relatives to
support her and the child.
1 All further statutory references will be to the Welfare and Institutions Code
unless otherwise noted.
2 We here summarize only those facts necessary for context, and those directly
relevant to mother’s claims of error. An exhaustive factual and procedural history is
unnecessary to the disposition of the matter.
2
On June 5, 2013, the juvenile court detained the child, and on August 8, 2013, it
sustained the petition, finding that she came within section 300, subdivisions (b) (failure
to protect) and (g) (no provision for support). Despite the recommendation from DPSS
that mother be denied reunification services, the court ordered services to be provided,
finding that to do so would be in the best interest of the child.
On October 8, 2013, the child was placed with her maternal aunt. The aunt had
begun visiting the child in July 2013, prior to placement. DPSS reported to the court in
January 2014 that the child was doing well in the aunt’s home, and was “truly attached to
her caretaker and the rest of the family,” which also included three older cousins who
“surrounded [her] with love.”
In the meantime, mother failed to participate in the reunification services offered
to her. In January 2014, DPSS reported that mother had been referred to individual
therapy, parent education, and substance abuse treatment, but had not followed up on any
of those referrals. She was referred to drug testing, but failed to show up. The court had
ordered visitation to occur twice a week; mother had not visited with the child even a
single time.
In an addendum report filed February 26, 2014, DPSS reported that mother had
called the social worker on February 10, 2014, interested in obtaining new referrals and
visiting with the child. On February 20, 2014, after mother had a clean drug test, a visit
between mother and child was arranged. Mother interacted well with the child during the
visit, but the social worker observed that there was no bond between mother and
daughter, because of the lack of previous visitation.
3
On March 6, 2014, the court terminated mother’s reunification services, and set a
section 366.26 hearing. Mother’s visitation was reduced to one supervised visit per
month, with additional visitation authorized.
On March 12, 2014, mother filed a notice of intent to file writ petition. The
petition was dismissed, however, pursuant to a withdrawal filed on March 24, 2014.
On May 12, 2014, mother filed a section 388 petition, requesting that the court
reinstate reunification services and authorize liberalized visitation. The changed
circumstances cited as the basis of the petition are a clean hair follicle drug test on
March 5, 2014, mother’s subsequent entry into and completion of a 45-day inpatient drug
treatment program, and the circumstance that she had “established a stable
residence . . . .” Mother also had begun visiting with the child as permitted by the court’s
orders, and she believed that they had “established a nurturing and loving bond.” The
court set the matter for a hearing.
In a section 366.26 report filed June 5, 2014, and again in an addendum report
filed June 23, 2014, DPSS recommended that the parental rights of mother and the
unknown father or fathers of the child be terminated, and that the child remain in the care
of the maternal aunt, who was now a prospective adoptive parent. DPSS acknowledged
that mother’s visits with the child had gone well; she had visited with the child twice a
week from February 20, 2014, until March 6, 2014, and monthly thereafter until June 12,
2014, when visitation was increased to twice monthly, in accordance with the court’s
orders. Mother’s older daughter, as well as the older daughter’s caretaker, a maternal
cousin, also participated in the visits in a positive manner.
4
Nevertheless, the social worker observed that the child had “no bond” to mother,
despite mother’s recent efforts to build one, and credited the circumstance that visits with
mother had gone well to the child “being a happy and stable baby while being cared for
by [mother’s] sister.” The lack of any visitation by mother in the first eight months of the
child’s life, followed by the limited visitation allowed by the court thereafter, left simply
“not enough time to truly establish a bond with a child that is nearing one year old.” In
contrast, the child was “very attached and bonded” to her current caretaker and
prospective adoptive parent, her maternal aunt, who had provided “the only home that
[the child] knows[,] a home that has provided for all of her needs since she was four
months old . . . .” Further, though mother now had a stable residence, she was still
without a job—her only source of income was food stamps—and she was being
supported by other family members. DPSS also noted that the maternal aunt had
expressed willingness to continue visitations between the child and her older sibling.
Mother’s section 388 petition was heard on September 15, 2014. Mother’s
testimony was presented, pursuant to stipulation, in the form of a letter to the court, dated
June 19, 2014. Among other things, the letter states that mother had been homeless until
February 2014, but since then had been sober and living in a stable residence, with the
assistance of her cousin (the older daughter’s caretaker). Mother had completed an
inpatient rehabilitation program, and continued attending outpatient counseling weekly,
as well as church twice weekly. She had attended every scheduled visit with the child
since February 2014, and expressed hope that she would be able to reunite permanently
with both her daughters in the future.
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The court found mother had established changed circumstances, given her
“remarkable turnaround,” but decided the requested change of order would not be in the
child’s best interest, and denied mother’s section 388 petition on that basis. The court
then proceeded to section 366.26 matters, terminating parental rights and setting adoption
as the child’s permanent plan.
II. DISCUSSION
A. Standard of Review
“Under section 388, a person with an interest in a dependent child may petition the
court to change, modify, or set aside a previous court order. The petitioning party has the
burden of showing, by a preponderance of the evidence, that there is a change of
circumstances or new evidence, and the proposed modification is in the child’s best
interest. [Citations.]” (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.) “In
determining whether the petition makes the necessary showing, the court may consider
the entire factual and procedural history of the case. [Citation.]” (In re Justice P. (2004)
123 Cal.App.4th 181, 189.) Importantly, given the circumstances of this case, “[a]fter 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
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it, that is, the best interest of the child.” (In re Stephanie M. (1994) 7 Cal.4th 295, 317.
(Stephanie M.).)
“The grant or denial of a section 388 petition is committed to the sound discretion
of the trial court and will not be disturbed on appeal unless an abuse of discretion is
clearly established. [Citation.]” (In re Shirley K. (2006) 140 Cal.App.4th 65, 71.)
“‘“The appropriate test for abuse of discretion is whether the trial court exceeded the
bounds of reason. When two or more inferences can reasonably be deduced from the
facts, the reviewing court has no authority to substitute its decision for that of the trial
court.”’ [Citation.]” (Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
B. Analysis
This appeal turns on whether mother has shown that the juvenile court abused its
discretion by determining the best interest of the child would not be served by granting
mother’s requested modification of its prior orders.3 Because the trial court’s decision
did not exceed the bounds of reason, we find no abuse of discretion.
As noted, mother’s burden on the second prong of the section 388 analysis was to
show that the child’s best interests, and in particular the need of the child for permanency
and stability, would be served by the requested change. (Stephanie M., supra, 7 Cal.4th
at p. 317.) Her petition in essence presented the court with two basic options: (1) deny
any further reunification services and terminate mother’s parental rights, freeing the child
3 The trial court found, and DPS has not contested on appeal, that mother showed
a genuine change of circumstances. We therefore need not discuss that portion of the
section 388 analysis further.
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for likely adoption by the only parent she had ever known, with whom she had developed
a strong mutual attachment, and who was prepared to provide her a permanent, stable and
loving home; or (2) delay adoption in favor of further reunification services for mother
who (a) only recently had obtained stable housing for herself, (b) who continued to have
no independent means of supporting herself or any of her children, (c) whose sobriety,
while commendable, remained a relatively new phenomenon, and (d) to whom the child
could not yet have developed a bond going beyond that of a friendly visitor, because of
mother’s complete absence from the first part of her life, and only occasional visits
thereafter. To say the least, the trial court’s conclusion that the first option would better
serve the child’s need for permanency and stability did not exceed the bounds of reason.
Mother emphasizes on appeal the factors listed in In re Kimberly F. (1997) 56
Cal.App.4th 519 (Kimberly F.), which 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 the 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.) These factors,
however, do not account for the need of the child for permanency and stability
emphasized in Stephanie M., supra, 7 Cal.4th at p. 317. (See In re J.C. (2014) 226
Cal.App.4th 503, 527 [declining to apply Kimberly F. factors on this basis].) Even
accepting mother’s application of the Kimberly F. factors—and there is room for
argument with respect to her analysis—she fails to show that the trial court abused its
discretion in determining the child’s best interests. She points to nothing in the record,
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and upon review we discern nothing in the record, compelling the conclusion that the
child’s need for permanency and stability would be furthered by her proposed
modification.
Mother is to be commended for her efforts to improve her life. We express our
hope that by continuing to do so, she will eventually be able to have a healthy
relationship of some sort—even if not a parental relationship—with the child, given that
the prospective adoptive parent is the child’s maternal aunt. Nevertheless, the trial court
did not abuse its discretion when it concluded mother had not shown the child’s best
interests would be served by further delaying permanency and stability in favor of
rewarding mother for her recent hard work and efforts to reunify.
III. DISPOSITION
The orders appealed from are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
KING
J.
MILLER
J.
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