In re J.S. CA2/5 ( 2015 )

Filed 10/19/15 In re J.S. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re J.S., et al., Persons Coming Under the B263798
Juvenile Court Law.
(Los Angeles County
Super. Ct. No. CK71573)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
M.S.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Stephen
Marpet, Juvenile Court Referee. Affirmed.
Merrill L. Toole, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the County Counsel, Mary C. Wickham, Interim County Counsel,
Dawyn R. Harrison, Assistant County Counsel, Tyson B. Nelson, Deputy County
Counsel for Plaintiff and Respondent.
Defendant and appellant M.S. (Mother) is the mother of five children, including
J.S. who is an infant and the subject of this appeal. Mother has an extended history of
substance abuse, and she admitted using methamphetamine while pregnant with J.S. In
related proceedings,1 the juvenile court terminated Mother’s parental rights over three of
J.S.’s elder siblings. We now consider whether the juvenile court erred when it denied
Mother’s section 3882 petition and terminated her parental rights as to J.S.
BACKGROUND
Mother is the biological parent of three daughters and two sons, one of whom is
J.S. Over the course of the past seven-plus years, all have been removed from Mother’s
custody and adjudicated dependents of the juvenile court. Before summarizing the
relevant background concerning J.S., we briefly describe the related proceedings
involving Mother’s other children.
A
In February 2008, the Los Angeles County Department of Children and Family
Services (the Department) filed a section 300 petition alleging that Mother’s eldest
daughter should be declared a dependent of the juvenile court because, among other
things, Mother had a history of substance abuse and was a user of illegal drugs. The
petition specifically alleged that Mother had a positive toxicology screen for
methamphetamine on January 24, 2008. The juvenile court sustained the petition and
removed the daughter from Mother’s custody. Mother subsequently regained custody of
her daughter, and the juvenile court terminated jurisdiction in 2010.
By 2013, Mother had three additional children. In May of that year, the
Department filed a section 300 petition on behalf of all four children (J.S. had not yet
1
At Mother’s request, we took judicial notice of the record of the related
proceedings, Case No. B257361, by order dated July 8, 2015.
2
All undesignated statutory references are to the Welfare and Institutions Code.
2
been born). The petition alleged Mother engaged in violent altercations with her male
companion, who was the father of three of the children, in the children’s presence.3 The
petition also alleged that Mother failed to protect the children because she allowed the
father—whom she knew had a history of methamphetamine abuse and who was then a
current abuser of marijuana—to reside in the children’s home and to have unlimited
access to the children despite a court order permitting only monitored visitation.
The juvenile court sustained the section 300 petition and adjudicated all four
children dependents of the court. The court terminated jurisdiction over the eldest
daughter with an order granting full custody to her father. As to the other three children
who had been placed in foster care, the court ordered reunification services for Mother,
including individual counseling and random drug and alcohol testing once a week.
At a subsequent review hearing in December 2013, by which time Mother was
already pregnant with J.S., the juvenile court found that Mother had not complied with
the case plan. Notably, the Department reported that she had failed to make contact with
the social worker, she had failed to appear for drug and alcohol testing, and she had been
arrested four times between August and October that year. Two of the arrests were for
being under the influence of methamphetamine, and Mother admitted methamphetamine
use to the investigating officers when arrested for the other two offenses. The juvenile
court terminated reunification services for the three children and set a section 366.26
hearing.
B
Mother gave birth to J.S. in April 2014. At the time, Mother was serving a
custodial sentence for failing to attend domestic violence classes ordered as a condition
of her probationary sentence in a criminal case. While she was hospitalized to deliver
J.S., Mother told hospital personnel that she smoked methamphetamine daily during her
3
Montebello Police arrested Mother in connection with an April 22, 2013, domestic
violence incident alleged in the petition. Montebello Police arrested Mother again for
domestic violence when she hit father a month later, in May 2013. The State prosecuted
Mother on domestic violence charges and the court sentenced her to probation.
3
pregnancy until two months before J.S. was born, which was when she was arrested for
violating her probation.4 Hospital personnel notified the Department.
A Department social worker visited Mother in the hospital. According to a
Department report documenting the visit, Mother admitted that her drug of choice was
crystal methamphetamine. Mother told the social worker that she began using
methamphetamine in 2007, stopped for about a year or a year-and-a-half in 2011, and
started using again at the end of 2012, including in the first months of her pregnancies
with two of J.S.’s elder siblings. Mother explained that she had taken substance abuse
classes, enrolled in a sober living program, and enrolled in an inpatient substance abuse
program, only to relapse later. Regarding J.S., Mother confirmed that she used crystal
methamphetamine daily for the first five to six months of the pregnancy and she also
admitted drinking alcohol for the “first couple months.”
The Department filed a section 300 petition on April 23, 2014, alleging J.S. came
within the jurisdiction of the juvenile court. The petition alleged Mother’s substance
abuse rendered her incapable of providing regular care for the child. (§ 300, subd. (b).)
The petition further alleged Mother continued to use illegal drugs despite previously
participating in a court-ordered substance abuse rehabilitation program. The petition
notified Mother that the Department may recommend denial of family reunification
services, which would result in immediate permanency planning for J.S. through
termination of parental rights.
Mother was released from jail and appeared at a detention hearing for J.S. on the
same day the petition was filed. The juvenile court ordered J.S. detained and vested
temporary placement and custody of J.S. with the Department. On June 2, 2014, the
Department filed an amended section 300 petition for J.S. that added allegations to reflect
the updated status of proceedings involving his three siblings. By that time, the juvenile
court had terminated Mother’s parental rights over the siblings and ordered permanent
4
Both J.S. and Mother were given toxicology screening tests in the hospital, and the
tests were negative for methamphetamine.
4
placement services because of Mother’s unresolved substance abuse issues and her
failure to comply with court-ordered programs.
At a June 9, 2014, jurisdiction and disposition hearing on the amended J.S.
petition, the juvenile court sustained the allegations that J.S. suffered, or there was a
substantial risk he would suffer, serious physical harm or illness as a result of Mother’s
failure or inability to adequately supervise or protect him. The court declared J.S. a
dependent of the court under section 300, subdivision (b) and continued his placement
with the foster family that had cared for him since he was released from the hospital. As
to disposition, the juvenile court found that Mother was not entitled to family
reunification services under section 361.5, subdivision (b)(10), (11) and (13).5 The
juvenile court addressed Mother directly and explained: “The Court has a long history
with you in my court being in our drug court program, as counsel indicated, ultimately
relapsing. And you’ve been given another opportunity with your other children and
relapsing. At this point, I cannot find . . . it’s in this child’s best interest to provide you
with reunification services at this time.” The court accordingly scheduled a 366.26
hearing to consider the permanent plan for J.S. and the termination of Mother’s parental
rights.
Mother filed three section 388 petitions in the months leading up to the section
366.26 hearing for J.S. Each of the petitions argued the juvenile court should revisit its
order denying her reunification services because of changed circumstances, namely,
Mother’s efforts to seek drug abuse treatment and her then-ongoing participation in drug
5
Under subdivision (b)(10), a court need not provide reunification services to a
parent who previously failed to reunify with the sibling of a dependent child if the parent
has not made a reasonable effort to treat the problems that led to removal of the sibling.
Subdivision (b)(11) similarly permits denial of reunification services where a parent had
her parental rights over a sibling permanently severed and has not made reasonable
efforts to treat the problem that led to that severance. Subdivision (b)(13) authorizes
denial of reunification services to a parent with an extensive history of drug or alcohol
abuse who failed or refused on at least two prior occasions to comply with a program of
drug or alcohol treatment ordered in dependency court case plans.
5
tests, which were negative.6 The juvenile court summarily denied Mother’s first two
petitions prior to the section 366.26 hearing, and Mother did not appeal from either
denial. Mother filed the last of her petitions on March 27, 2015. In that petition, she
stated she was attending drug counseling three times per week, participating in random
drug tests, attending 12-step meetings, working with a sponsor, and receiving school and
employment services. She claimed an order granting reunification services was in J.S.’s
best interests because it would allow him to be with her, the biological mother.
The juvenile court denied the March 27 petition at the section 366.26 hearing for
J.S. The court found Mother had not shown a sufficient change of circumstances to
warrant a hearing on the petition and that changing its order to permit reunification
services would not be in J.S.’s best interests. The juvenile court also terminated Mother’s
parental rights over J.S and rejected Mother’s request for a contested hearing on the
beneficial parent-child exception to termination. (§ 366.26, subd. (c)(1)(B)(i).) The
relevant exchange between the juvenile court and counsel was as follows:
THE COURT: The matter is here on calendar for selection
implementation hearing and review of permanent plan. The court has read
and considered the report today. Notice was given as required by law;
publication to father, notice to mother. Recommendation is to go forward
and terminate parental rights.
Counsel, wish to be heard?
[MOTHER’S ATTORNEY]: Yes, your Honor.
Mother is making a request if the court will—to set the matter
for contest to establish a—the parent-child bond exception under
(c)(1)(B)(1).
[CHILD’S ATTORNEY]: Your Honor, I’d ask—
THE COURT: Go ahead.
[CHILD’S ATTORNEY]: I’d ask the court, if the court’s
considering it, to demand an offer of proof. The court just denied her 388
6
With one of her prior petitions, Mother submitted documentation of completed
drug counseling programs and of 28 negative drug tests during the six-month period
between July 2014 and January 2015.
6
on December 25, 2015. Nothing would indicate that threshold could be met
by mother.
THE COURT: [Mother], there is no evidence before the court that
you have obtained the relevant contact with this child as a parent under
(c)(1)(B)(1), so I’m going to deny your request to set the matter for contest.
And there is a 388 that you just filed recently which the court
has read and considered and I’m denying the 388. There’s not sufficient
change of circumstance. It may be changing but it’s not changed and—
[DEPARTMENT’S ATTORNEY]: Is it also not in the minor’s best
interest?
THE COURT: Not, clearly, in this minor’s best interest, who has
never been in your care and custody since the child was one day old.
[. . .]
So the court is ready to go forward.
Counsel.
[MOTHER’S ATTORNEY]: Please note Mother’s objection, your
Honor, to termination of her parental rights.
The juvenile court found by clear and convincing evidence that it was likely J.S.
would be adopted by the foster family that had cared for him since shortly after his birth.
The court therefore ordered adoption as J.S.’s permanent plan.
DISCUSSION
Mother argues the juvenile court should have held a hearing on her section 388
petition, rather than summarily denying it. She also challenges the court’s order that
terminated her parental rights over J.S. without a contested hearing. We review both
claims of error under the abuse of discretion standard of review, except to the extent her
second claim presents a factual issue; there, our review is for substantial evidence. (In re
K.P. (2012) 203 Cal.App.4th 614, 621-622; In re Aaron R. (2005) 130 Cal.App.4th 697,
705; Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 758-759.)
7
A
Section 388 permits a parent (or other interested party) to petition the juvenile
court “for a hearing to change, modify, or set aside any order of court previously made”
in light of changed circumstances or new evidence. (§ 388, subd.(a)(1).) Mother was
entitled to a hearing on her March 27, 2015, section 388 petition if she made a prima
facie showing that “‘(1) new evidence or changed circumstances exist[ed] and (2) the
proposed change would promote the best interests of the child.’” (In re Mary G. (2007)
151 Cal.App.4th 184, 205.) The juvenile court found Mother had not made a prima facie
showing on either score.
Although Mother’s petition sought to set aside the court’s earlier denial of
reunification services based on the efforts she was making to address her substance abuse
problem, the court found the petition did not present a sufficient change in circumstances;
as the juvenile court put it, “It may be changing but it’s not changed . . . .” The juvenile
court was well familiar with Mother’s substance abuse problems over many years and the
relapses she suffered—including while pregnant with J.S. (Ante at p. 3.) Thus, while
Mother’s most recent efforts to seek treatment and stay sober are encouraging, we see no
basis to conclude the juvenile court abused its discretion when it determined these efforts
were insufficient indicia of changed circumstances to warrant a hearing. (E.g., In re
Mary G., supra, 151 Cal.App.4th at pp. 205-206 [no prima facie change in circumstances,
despite drug treatment and attendance at NA meetings, for mother who lost custody of
three older children because of her drug abuse, which dated back 23 years]; In re Cliffton
B. (2000) 81 Cal.App.4th 415, 423 [seven months of sobriety not changed
circumstances]; In re Casey D. (1999) 70 Cal.App.4th 38, 44 [no prima facie case where
social worker observed cyclical history of drug use over four-and-a-half years: parents
would seek treatment to reunify only to relapse once child protection agency no longer
involved].)
Moreover, the juvenile court also concluded that a hearing to consider
reunification services for J.S., who had never been in Mother’s care or custody since
birth, would not be in the child’s best interests. We do not disagree. By the time of
8
Mother’s section 388 petition, the juvenile court’s focus was appropriately on J.S.’s need
for the permanency and stability that would come from adoption. (In re Angel B. (2002)
97 Cal.App.4th 454, 464 [after reunification services terminated or never ordered, a
parent’s interest in the care, custody and companionship of the child is no longer
paramount; focus shifts to needs of child for permanency and stability].) The record
reflects that the family that had been responsible for taking J.S. to Regional Center
therapy sessions and otherwise caring for him since birth was ready and willing to adopt
him.7 Thus, even assuming Mother had sufficiently shown changed circumstances, the
juvenile court did not abuse its discretion when it summarily denied her section 388
petition. (In re Marcelo B. (2012) 209 Cal.App.4th 635, 641-642 [unless moving party
makes a prima facie showing on both elements, changed circumstances and the child’s
best interests, section 388 petition may be denied without an evidentiary hearing]; In re
Aaron R., supra, 130 Cal.App.4th at p. 706 [changed circumstances established, but no
prima facie case where child spent nearly his entire life in home of prospective adoptive
parent and was thriving under adoptive parent’s care].)
B
Section 366.26 requires a juvenile court to make findings and orders for
permanent placement of minors adjudged dependent children after consideration of
relevant Department reports and other evidence the parties may present. (§ 366.26, subd.
(a).) The statute provides that adoption of a dependent child, which requires termination
of the biological parents’ rights, is the preferred placement option. (§ 366.26, subd.
(b)(1).) If the juvenile court finds by clear and convincing evidence that it is likely a
child will be adopted, if the court made a previous finding to bypass reunification
services under section 361.5, subdivision (b), and if there are no statutory exceptions to
termination, the court must terminate parental rights. (§ 366.26, subd. (c)(1); In re A.S.
7
According to Department reports, J.S. was doing well in the home of his
caretakers, who had provided a loving and stable home and who were making sure all of
J.S.’s needs were met. A social worker conducting a home visit observed J.S. bonded to
his caretakers and vice versa.
9
(2009) 180 Cal.App.4th 351, 361; see also In re K.C. (2011) 52 Cal.4th 231, 236-237
[decision to terminate or bypass reunification services ordinarily constitutes a sufficient
basis for terminating parental rights unless a court has compelling reasons under a
statutory exception not to do so].)
Mother did not challenge the finding that it was likely J.S. would be adopted, nor
the juvenile court’s earlier decision to bypass providing reunification services pursuant to
section 361.5.8 But Mother sought to forestall the otherwise inevitable termination of
parental rights by asking the juvenile court to set a contested hearing so she could attempt
to establish the beneficial parent-child exception. (§ 366.26, subd. (c)(1)(B)(i) [court
need not terminate parental rights if it finds the “parents have maintained regular
visitation and contact with the child and the child would benefit from continuing the
relationship”]; see In re C.F. (2011) 193 Cal.App.4th 549, 553 [parent bears the burden
to show termination of parental rights would be detrimental to child under one of the
statutory exceptions].) The juvenile court did not set a contested hearing, and Mother
argues the failure to do so violated her due process rights.
A parent has a right to due process in dependency proceedings, including the right
to confront and cross-examine witnesses in particular circumstances. (In re Ingrid E.,
supra, 75 Cal.App.4th at pp. 756-757; In re Jeanette V. (1998) 68 Cal.App.4th 811, 816-
817.) But due process “is a flexible concept which depends upon the circumstances and a
balancing of various factors.” (In re Jeanette V., supra, at p. 817 [citing In re Sade C.
(1996) 13 Cal.4th 952, 992].) Thus, it is well established that a juvenile court need not
hold a contested hearing to determine whether a section 366.26, subdivision (c) exception
applies when a parent is asked and fails to make an adequate offer of proof. (In re
Tamika T. (2002) 97 Cal.App.4th 1114, 1122; In re Jeanette V., supra, at p. 817; see also
In re Earl L. (2004) 121 Cal.App.4th 1050, 1053.)
8
In Case No. B257361, Mother filed a Notice of Appeal from the juvenile court’s
order denying her reunification services for J.S. Mother filed a brief pursuant to In re
Phoenix H. (2009) 47 Cal.4th 835 conceding there were no arguable issues. By order
dated October 20, 2014, we dismissed the appeal as abandoned.
10
Mother contends the juvenile court did not allow her to make an offer of proof,
and that the termination of her parental rights without a contested hearing was therefore
improper. We do not read the record to so demonstrate. As quoted ante at page 7, the
juvenile court gave counsel for Mother the opportunity to argue at the outset, and Mother
made no offer of proof to justify her request for a contested hearing. When counsel for
J.S. asked the court to demand such an offer, Mother’s attorney did not interject with one.
To be sure, the court at that point did state it would decline to set the matter for contest,
but the court subsequently gave Mother an opportunity to respond; counsel simply noted
her objection without making any further offer of proof. There is no doubt that the better
practice under the circumstances would have been for the juvenile court itself to demand
a specific offer of proof from counsel and to obtain one, or an express waiver of the right
to present one, before proceeding. But the issue of an offer of proof had been raised, and
counsel could have made or at least attempted to make such an offer. Having failed to do
so, the juvenile court’s decision to go forward without a contested hearing was not an
abuse of discretion. (See In re Jeanette V., supra, 68 Cal.App.4th at p. 817 [no error in
juvenile court’s implied finding that a deficient offer of proof did not require cross-
examination of social workers to establish beneficial parent-child exception].)
Further, even if we read the record to show Mother did not have a chance to make
an offer of proof, we are convinced the error was harmless. “To overcome the preference
for adoption and avoid termination of the natural parent’s rights, the parent must show
that severing the natural parent-child relationship would deprive the child of a
substantial, positive emotional attachment such that the child would be greatly harmed.”
(In re Angel B., supra, 97 Cal.App.4th at p. 466.) When considering whether a parent-
child relationship is beneficial, courts consider 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 the parent and child, and the child’s particular needs. (In re Jason J. (2009) 175
Cal.App.4th 922, 937-938; In re Angel B., supra, at p. 467.)
Much of the evidence before the court on the relationship between J.S. and his
foster family on the one hand, and J.S. and Mother on the other, was not only undisputed
11
but indisputable. J.S. was quite young at the time of the section 366.26 hearing on April
9, 2015—just over a year old. Holding a contested hearing would not have made him any
older. There was also no disputing, contested hearing or not, that J.S. had been cared for
his entire life by his foster family and had never been in Mother’s custody. The juvenile
court was also well aware of Mother’s longstanding substance abuse problem—including
her admission to daily methamphetamine use for much of her pregnancy with J.S.—
which the court relied on to bypass providing reunification services and deny Mother’s
section 388 petitions. By the same token, the Department did not dispute the sufficiency
of Mother’s visitation. As the Department reports before the juvenile court stated,
Mother visited J.S. consistently during monitored visitation twice a week beginning in
May 2014, she was engaged and loving during the visits, and one social worker observed
J.S. “to be very happy and comfortable in the presence of both [Mother and his foster
family].”
“A biological parent who has failed to reunify with an adoptable child may not
derail an adoption merely by showing the child would derive some benefit from
continuing a relationship maintained during periods of visitation with the parent.” (In re
Angel B., supra, 97 Cal.App.4th at p. 466.) Rather, Mother had the burden to show that
she had such a strong and beneficial relationship with J.S. that terminating her parental
rights would be detrimental to J.S. and outweigh the benefit of a stable and permanent
home that would come with adoption. (In re Jasmine D. (2000) 78 Cal.App.4th 1339,
1348-1349; In re Casey D., supra, 70 Cal.App.4th at p. 51.) On this record, the juvenile
court was well within its discretion to terminate Mother’s parental rights. Holding a
contested hearing would not have resulted in a more favorable outcome under any
standard of review. (In re J.C. (2014) 226 Cal.App.4th 503, 532 [beneficial relationship
exception not shown for very young child (29 months) that spent entire life living apart
from biological mother even though mother had pleasant contacts with child and had
progressed to unmonitored visitation]; In re K.P., supra, 203 Cal.App.4th at pp. 622-623
[beneficial relationship exception not shown for parent who maintained regular visitation
with child removed from custody when less than one month old but who did not progress
12
beyond once-per-week monitored visits]; In re Jasmine D., supra, at p. 1350 [benefit of
stable, permanent adoptive home clearly outweighed benefit of continued relationship
with parent who had successful visitation but made no steps toward overcoming problems
that led to dependency]; In re Casey D., supra, at p. 51 [showing required to establish
beneficial parent-child relationship “will be difficult to make in the situation, such as the
one here, where the parents have essentially never had custody of the child nor advanced
beyond supervised visitation”]; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-
1419.)
DISPOSITION
The juvenile court’s orders denying Mother’s section 388 petition and terminating
her parental rights are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
TURNER, P.J.
MOSK, J.
13