In re K.B. CA4/1 ( 2014 )

Filed 9/9/14 In re K.B. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re K.B. Jr., a Person Coming Under the
Juvenile Court Law.
D065227
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. SJ12289A)
Plaintiff and Respondent,
v.
A.R.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Kenneth J.
Medel, Judge. Affirmed.
Suzanne F. Evans, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel and J. Jeffrey Bitticks, Deputy County Counsel, for Plaintiff and Respondent.
Terrence M. Chucas, under appointment by the Court of Appeal, for minor.
A.R. (Mother) appeals from a judgment terminating her parental rights following
contested hearings under Welfare and Institutions Code1 sections 388 and 366.26. She
contends the juvenile court abused its discretion by denying her section 388 petition
seeking return of her child K.B., claiming she addressed the concerns that had prompted
K.B.'s removal by the San Diego Health and Human Services Agency (Agency). Stating
her progress is "substantially comparable" to that of the father in In re S.B. (2008) 164
Cal.App.4th 289, Mother further contends she established both prongs of the parental-
child beneficial exception to adoption (§ 366.26, subd. (c)(1)(B)(i)), warranting denial of
Agency's section 366.26 petition to terminate her parental rights. We affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2009, Agency filed a section 300 petition alleging that then 16-
month-old K.B. came within the juvenile court's jurisdiction for Mother's failure to
protect him under section 300 subdivision (b). Agency alleged Mother had ingested 15
unprescribed Klonopin pills while caring for K.B. and was treated for a possible drug
overdose. A welfare check of the home revealed three pipes containing
methamphetamine residue in the room where K.B. slept with Mother and her boyfriend,
Donald K., as well as a steak knife and cigarette lighter in K.B.'s crib. Mother admitted
using methamphetamine a few days earlier. K.B.'s father's whereabouts were unknown.
K.B. was eventually ordered detained in a foster home.
1 Statutory references are to the Welfare and Institutions Code unless otherwise
specified.
2
In a jurisdiction/disposition report, a social worker summarized her interview with
Mother, who denied owning the methamphetamine pipes or doing drugs, and denied that
K.B. was sleeping in his crib where the knife and lighter were found. Mother reported
that she left K.B.'s father due to his violence toward her and had obtained a restraining
order against him that terminated in 2012. She was living with Donald K. and his
family.2 The social worker reported that Mother and Donald K. had been referred for
substance abuse testing but failed to appear. Though Mother had supervised visits with
K.B., the foster mother reported Mother "[did] not seem to know much" about K.B., and
would simply put him in his crib with the television on to fall asleep, and gave him soda
instead of Pedialyte for his ear infection because "he likes [it] a lot." When the foster
mother responded that K.B.'s teeth were rotting, Mother said it was because of his bottle,
2 The record shows that Agency was initially concerned about mother's involvement
with Donald K., who was later arrested on May 15, 2010, for transportation and
possession for sale of methamphetamine. At various times in 2010, social workers
criticized mother for continuing to insist that Donald K. and his family have access to
K.B. when it was not authorized, bringing Donald K. to K.B.'s visits, maintaining her
relationship with Donald K., continuing her dependence on him and his family, and
encouraging K.B. to refer to Donald K. as "dada." Social worker Teresa Acevedo felt
mother did not understand her sobriety was in jeopardy by continuing to live with and be
reliant on another drug-dependent individual (Donald K.), knowing this was one of her
"triggers." Ultimately, Agency recommended that K.B.'s brother, D.K., born in June
2011, would be placed with Donald K. in family maintenance services, the parties agreed
to that recommendation, and the juvenile court terminated its jurisdiction as to D.K. As
to K.B., Agency eventually had no issue with Donald K.'s past; it plainly felt K.B. was
best served by his placement with and adoption by Donald K.'s parents, although Donald
K., D.K., and K.B. would live in the same home. At the section 366.26 hearing, a social
worker testified that the allegations and concerns about Donald K. were investigated and
no longer existed as of July 2013.
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not the soda. The foster mother observed K.B. did not appear close to Mother and did not
cry when he left her.
In March 2010, the juvenile court referred Mother to SARMS (substance abuse
recovery management system) for substance abuse treatment and case management
services. At a document trial on K.B.'s jurisdiction/disposition hearing the court removed
K.B. from Mother's custody, ordered him placed in a licensed foster home, and ordered
services for Mother.
In April 2010, Agency located K.B.'s father, who was residing in Hawaii.3
Agency could not locate willing and able relatives to care for K.B. Social worker
Acevedo reported that during that same month, Mother had attempted to involve Donald
K. in her supervised visits and had "continuously became enraged" about his exclusion,
making a scene in front of K.B. and frightening him. According to Acevedo, when told
how detrimental her aggressive behavior was to K.B., Mother "did not seem to care."
Acevedo reported in addendums that in May 2010, Mother was reported to have a
positive drug test for marijuana, but when Mother was confronted with the test results,
she denied using the substance, claiming she was only in the presence of others using
drugs. Mother later admitted to Acevedo that she had "screwed up" and lied; that she had
3 K.B.'s father is not a party to this appeal, thus we omit background information
related to his involvement with K.B. and Agency. This court affirmed a judgment
terminating reunification services to him in In re K.B., Jr. (Apr. 28, 2011, D058691)
[nonpub. opn.]. K.B.'s father had no contact with Agency between late May 2010 and
July 2010. Agency learned he was arrested on May 14, 2010, for an outstanding warrant
after being found intoxicated. He was again arrested in July 2010 after wielding a knife
and flashlight and attacking a man helping father's ex-girlfriend. In November 2010, the
court terminated father's services.
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used marijuana. Mother failed to undergo drug tests on three additional occasions and
had a diluted test. Substance abuse counselors had reported Mother was slow in progress
and, while attentive, was not participatory.
In July 2010, Mother was ordered and agreed to participate in dependency drug
court. As of August 6, 2010, the court reported her compliant with 21 days of sobriety.
However, Acevedo later reported that Mother had left her residential treatment program
on August 2, 2010. Mother eventually enrolled in outpatient services. Acevedo also
reported that while Mother's visits had been consistent for the most part and her behavior
good, she continued to bring unauthorized people to the visits. Acevedo recommended
that the court terminate Mother's reunification services.
In an addendum report for the six-month status review hearing, social worker
Acevedo reported that in September 2010, Mother and Donald K. had been stopped by
police, who checked their home and found a smoking device on the night table containing
methamphetamine residue, as well as a digital scale. The next day, Mother did not
disclose her police contact to the social worker. She claimed to be attending Narcotics
Anonymous (NA) classes, but did not provide proof. Acevedo expressed concern that
Mother was concealing her circumstances, and her attempts to make changes were not
genuine. Mother had not completed the most basic portion of her case plan: she had
finished only three of 14 parenting classes.
In an addendum, Acevedo reported that in September and October 2010, Mother
had tested dilute twice, and failed to test once. Acevedo had been informed that Mother
was four to five months pregnant, yet she was smoking cigarettes, failed to drug test and
5
had tested dilute, which was considered a positive test. Acevedo stated Mother was
"clearly not" applying what she had learned from therapy and drug treatment to her life
situations so as to show K.B. would not reenter the same situation from which he was
removed. Mother had stopped attending NA/AA meetings, and did not have a sponsor.
Acevedo reported that while Mother was participating in services, she had not
demonstrated any real change.
The contested six-month status review hearing took place in November 2010, at
which time the court ordered that K.B. continue to be placed in a licensed foster home.
In November 2010, the court continued services to Mother, who it found had made some
progress with her case plan.
In a report for the 12-month status review hearing, Acevedo observed that Mother
had been attending therapy and substance abuse treatment. However, while she had been
attending NA/AA meetings, she still did not have a sponsor. Acevedo reported that
Mother's complaints of K.B.'s foster home placement in Oceanside and the climate
between her and his caregivers had resulted in the caregivers giving notice, and Agency
had to find another placement for K.B. Acevedo observed Mother's visitations with K.B.
were appropriate, but she had to make improvements and demonstrate a longterm
dedication to sobriety. Mother continued to assert that everyone involved in her case had
"wronged" her.
At the February 2011 12-month status review hearing, the court found Mother had
made substantive progress with her case plan, and ordered Agency to continue services to
her. K.B. was again ordered placed in a licensed foster home.
6
For Mother's 18-month review hearing, Agency recommended Mother be given an
additional six months of services. Social worker Acevedo reported that Mother had been
attending services and doing well; that she completed drug court in April 2011 and
graduated from the South Bay Women's Recovery Center in May 2011. Mother had also
been attending NA and AA meetings as required, was engaged in individual therapy, and
had regular visitation including overnight visitation with K.B. Mother was living with
her maternal aunt, and was due to give birth in June 2011. Mother and K.B. were in
once-a-week therapy separately and together, and K.B. showed affection and was happy
in Mother's presence. Acevedo recommended that K.B. be placed with Mother.
The juvenile court adopted Agency's recommendations, and in June 2011 ordered
K.B. placed with Mother. It ordered continued services and set a maintenance review
hearing for December 2011. Before that hearing, however, Mother's whereabouts
became unknown and Mother stopped returning social workers' calls. Agency sought a
continuance to obtain information about Mother's circumstances. Two weeks later, social
worker Christina Morse reported that Mother had ended her therapy sessions in June
2011 when she gave birth to D.K., a son from Donald K. K.B., who was then age three,
was hitting, kicking, not sharing and having tantrums at school. Mother reported she was
attending two to three NA/AA meetings a week, but Morse never received her meeting
slips, and though Mother claimed to be on the fourth step, she was unable to describe that
step to Morse. However, Mother's December 13, 2011 on-demand drug test was normal.
Agency recommended K.B. remain with Mother and that they receive six months of
family maintenance services.
7
Social worker Morse provided a status on June 20, 2012. She reported Mother
was unemployed and homeless; she had been living from motel to motel since May 2012
and was supporting her children with public assistance. Mother had been lying to
Agency for the past year about her living circumstances, and she in fact had been living
with Donald K., then with her father, and then with another man, George S., who had an
extensive criminal history of domestic violence, drug charges and theft. Also, in June
2012, new allegations had arisen that were under investigation: that her father had picked
K.B. up by the arm, dangled him, and spanked him on the bottom while Mother was
residing in his home; that Donald K. yelled at the younger son and hit him with an open
hand across his face; and that Mother's aunt came to Mother's hotel room and removed
her Klonopin so that Mother would not overdose on the medication. Both Mother and
Donald K. had filed abuse allegations against each other in family court. Morse reported
that K.B. had no health concerns and his immunizations were up to date, but he was still
hitting, kicking and having tantrums at school, though with less frequency. While K.B.
was participating in therapy sessions at school, he and Mother were no longer seeing their
therapist, and Mother had not followed through with referrals for speech and behavior
modification services for K.B.
Mother had claimed to be attending NA/AA meetings, but Morse learned she had
used an unauthorized NA/AA stamp to sign attendance sheets. Mother also admitted to
Morse that she used the synthetic marijuana "Spice," and that she had last smoked it in
February or March. Though Mother had negative drug tests in December 2011, and April
and May 2012, drug testing specialists confirmed that Spice would not show up on a drug
8
test. Mother had stopped taking her prescribed psychotropic medication. Agency created
safety plans for Mother, and Mother agreed not to have contact with either Donald K. or
George S., to resume her medication, meet with her treating physician, resume her
individual therapy, and seek permanent housing.
Though Agency had recommended K.B. remain with Mother and she receive six
additional months of maintenance services, a month later it filed a section 387 petition
asking that K.B. be removed from her care and placed with a foster caretaker. Agency
alleged Mother was no longer willing or able to provide K.B. adequate care and
supervision in that she had been living with George S., who had an extensive criminal
history, and was no longer using her prescribed psychotropic medication or consulting
with her treating physician. In a lengthy detention report discussing the recent events
including Mother's dishonesty and synthetic marijuana use, social worker Morse
summarized the June 2012 referrals regarding Mother and reached conclusions about
them. Morse recounted family court allegations from Donald K. concerning his
relationship with Mother and Mother's mistreatment of the children, and Mother's
responsive allegations. Morse reported that Mother had denied having further contact
with George S. after Agency told her to have no contact, but eventually admitted he had
been to the hotel where she was staying. She also admitted getting pregnant with George
S.'s child and miscarrying. Morse expressed concern about Mother's inability to follow
through with housing referrals, her inability to inform the Agency of violent or abusive
events until after they occurred, and her unstable mental health. She set forth her
interviews with Mother, Donald K., Mother's maternal aunt, Donald K.'s parents, and
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children K.B. and D.K. Agency recommended Mother return to services to address her
ongoing poor judgment, mental health symptoms, drug use, and relationship problems as
well as further develop her parenting skills. In July 2012, the juvenile court ordered K.B.
detained with Polinsky or another approved foster home.
The court set the matter for a contested jurisdictional and disposition hearing, and
in the interim ordered the parties to attend a settlement conference. In September 2012,
Mother relocated to Northern California to live with her mother. At the December 5,
2012 settlement conference, the juvenile court adopted Agency's recommendations,
continued K.B. as a dependent child, and removed him from Mother. It ordered K.B.
placed with a non-relative extended family member (NREFM), terminated Mother's
services but ordered visitation, and set the matter for a section 366.26 selection and
implementation hearing.
In a March 2013 report prepared for the upcoming section 366.26 hearing, Agency
sought a 90-day continuance to assess the case. Social worker Keisha Blair reported that
as of September 2012, K.B. was placed in the NREFM home of Donald K.'s parents,
Edna and Walter H. K.B. was with his brother, D.K., who had been placed with Donald
K. in the same home. Blair observed K.B. had had eight placements over his lifetime.
Though Blair had been on the case since January 2014, Mother had not contacted her to
inquire about her children or request visitation, and she had not had any opportunity to
witness Mother's visits with K.B. Blair reported that K.B. was generally and specifically
adoptable, and Edna and Walter H. had expressed an interest in giving him a permanent
home through adoption. Blair sought additional time to assess the caregivers in part
10
because there was a current physical abuse referral and Donald K. had informed Blair
that his Mother was only adopting K.B. to give him to Donald K.
In May 2013, Mother filed a petition under section 388 seeking an order placing
K.B. with her. Agency issued addendum reports in June, November and December 2013
for the section 366.26 hearing.4 In June 2013, social worker Blair reported that Mother
had been contacting K.B. once a week since mid-March 2013 and having brief
conversations with him. She had not requested visitation, nor had she contacted Blair to
inquire about K.B.'s well-being. Blair reported that K.B. was an attractive four year old
who had no major health or developmental problems, and he was affectionate and
engaging with his caregivers Edna and Walter H., who continued to express their
commitment and desire to provide K.B. with permanence through adoption. Blair
recommended the court deny Mother's section 388 petition. She reported that while
Mother claimed to have undergone changed circumstances, there was no evidence she
had a safe home, was taking all of her prescribed medication, or was consulting with a
psychiatrist. When asked, K.B. stated he wanted to live with his grandmother Edna and
"daddy" (Donald K.), where he had been living since September 2012. His caregivers
began to develop their relationship with K.B. when he was nine months old; they ensured
4 After the initial April 3, 2013 continuance for the section 366.26 hearing, the court
on July 1, 2013, set the matter for contested joint section 388 and section 366.26
hearings. In August 2013, the matters were again continued to October 2013 due to the
unavailability of D.K.'s social worker. In October 2013, the matter was again continued
because one of the attorneys was leaving for vacation the next day and could not
complete the trial. On the date set for trial, November 8, 2013, mother's counsel declared
a conflict. A few days later, the court appointed new counsel and the matters were set for
trial in January 2014.
11
K.B. attended all of his medical appointments and K.B. looked to them to meet his needs
when he was injured or needed comforting. Blair concluded there was no parental
relationship between K.B. and Mother; she recommended Mother's parental rights be
terminated and adoption to be the most appropriate plan.
In November 2013, social worker Amy Ausderan made the same
recommendations. She reported there had been several referrals to Agency concerning
Mother and her newborn daughter, and that in September 2013, workers who were
visiting Mother's home found Mother confused, "almost stoned," with slowed speech and
having difficulty grasping what workers were saying. Mother stated she was taking
medication for her severe anxiety, but did not show it to the worker, claiming it was in a
bedroom where the baby's father was sleeping. The worker expressed concern that the
baby was left in her bassinet for long periods of time and when Mother blamed the child's
grandmother, the worker had to tell her she was ultimately responsible for her daughter's
care if she was to leave her for long periods of time. Mother responded, "Well I guess I'll
have to find a new babysitter then." Though Agency documented concerns over the
cleanliness of the house and the baby's yeast infections, the general neglect referral was
eventually closed as unfounded.
Ausderan reported that K.B.'s attorney had spoken with K.B.'s therapist, who had
very positive things to say about the caregivers' commitment and participation in K.B.'s
therapy. K.B.'s therapist had observed in one visit that Donald K. was appropriate, and
that K.B. did not fear him in any way. Mother's only contact with K.B. had been weekly
phone calls; she had never requested visitation and at times Mother became irate and
12
inappropriate during the calls. Though Mother had been appropriate during two
supervised visits in July 2013, Mother had not demonstrated an ability to provide for
K.B.'s physical, emotional, or medical needs on a consistent basis, she was unable to
address her substance abuse addiction, and she did not maintain a consistent presence in
K.B.'s life. Ausderan stated K.B. enjoyed his visits with Mother, but their relationship
did not rise to the level of a parent-child bond and did not outweigh the benefits of
permanency, stability and safety that adoption would provide. Mother still had not given
Agency proof of her completion of a substance abuse treatment program, negative drug
test results, and her compliance with a psychotropic medication regimen or consultation
with a mental health professional. Ausderan stated Mother had a history of drug abuse
that needed to be addressed, and it was not in K.B.'s best interest to be placed with her, as
he had had numerous placements and needed a stable, drug- and violence-free home
where his needs were met. According to Ausderan, K.B.'s current home with his
caregivers met all of those basic needs.
Mother had two supervised visits with K.B. and his brother on November 13 and
14, 2013. Mother arrived on time and brought candy and a toy for K.B. She had
purchased pizza kits for the children to make and was very playful and energetic, giving
the boys praise when they made good choices. K.B. did not appear to experience distress
upon separating from Mother at the end of the visit; he did not cry or ask to stay longer,
and he appeared eager to go with his caregiver and separated with ease. The next day,
Mother was excited to see and hugged K.B., who did not initiate any outward display of
affection, but did not object to Mother's touch. She brought food and drink, but
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understood K.B. had eaten at school. Mother was very playful, riding down the slide,
pushing the boys on bicycles, and holding K.B.'s hand while he rode a skateboard. She
drew a picture of her, K.B. and his brother on a chalkboard and told them she was saying,
"I love you." K.B. did not respond but retrieved some toys and began playing on his
own. After a while, Mother encouraged K.B. to play with them, then asked him to give
her a big hug. K.B. hugged her. K.B. separated easily from Mother and went with his
caregiver easily. Though Mother had scheduled another visit, she cancelled it because
she did not want K.B. playing outside in the cold weather.
Mother's New Section 388 Petition
In January 2014, Mother withdrew her May 2013 petition and filed a new petition
under section 388 asking the court to vacate the section 366.26 hearing, place K.B. with
her, and order family maintenance services, or alternatively for a lesser permanent plan
such as long term foster care. Mother claimed she and K.B. were sufficiently bonded to
suggest reunification was possible and beneficial. She also claimed she had been
managing her health via consistent care and had followed her medication regimen for
many months. Mother attached letters from physician's assistants. One stated Mother
had been actively searching for work, and she had expressed a desire to be healthy and a
positive contributor to the community.
Combined Section 366.26 and Section 388 Contested Hearings
On January 7 and 8, 2014, the juvenile court heard Mother's section 388 petition
and the contested section 366.26 matter; the parties stipulated that the testimony and
admitted evidence would be considered for both matters.
14
Mother testified that since June or July 2013 she had been under the care of
"telemed" psychiatrists with Ampla Health for her anxiety, depression and insomnia, and
was taking medications Ativan, Trazodone, Abilify, Effexor, Prilosec, Demerol and
Benadryl for her conditions. She felt the medications helped her with her insomnia,
anxiety and depression, and she was a "completely changed" person. Though Mother
testified she was clean and sober, she was not engaged in any drug or alcohol
rehabilitation (claiming she was caring for her daughter), nor was she attending N.A. or
A.A. meetings. Mother's last time in rehabilitation was October 2012 when she
underwent nine months of outpatient treatment and one month of inpatient treatment.
She had been living in Gerber, California for just over a year and was in a month-to-
month housing arrangement.
Mother testified she tried to call K.B. every day and left messages, but only
actually spoke with him once or twice a week, or sometimes not at all. Her longest call
was 10 minutes, and she testified that when she called K.B., he would ask her when she
was coming to see him and live with him. She saw him on the last court date in July and
also in November when she brought food and played with him. Mother had a room set
up for K.B. in her home with a bed and desk for homework.
Social worker Ausderan testified that though Agency had recommended that
Mother engage in substance abuse treatment, it had no information that she had done so
since July 2012 when K.B. was removed from her care. At that time, Mother was not
taking her prescribed medication because she wanted to prove to her family that she did
not need it. Agency had also recommended Mother participate in medication
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management treatment and asked Mother to provide documentation for that, but it
received only a letter that was unspecific about her medications, diagnosis or whether a
mental health professional was involved, and Ausderan never received a return call on
her follow up inquiries. Mother never complied with parent/child attunement therapy as
Agency had recommended. Agency had not restricted the number of times Mother could
visit K.B. nor had it prohibited her from traveling and seeing him in a supervised setting,
yet Mother saw K.B. only five times since her move to Northern California: twice in July
2013, once in September 2013, and twice in November 2013. Nor had Agency precluded
Mother from participating in K.B.'s therapy, schooling or education. Though Ausderan
did not observe Mother and K.B.'s initial greetings during recent visits, she did not see
K.B. taking the initiative to have physical or emotional contact with Mother such as
hugging or kissing her, and he was not distressed or sad at the end of the visits. K.B.'s
caregivers told her he did not ask to see or call her. Mother had never participated in
K.B.'s therapy; his caregiver Edna took him to his weekly visits, participated in in-home
programs, attended his individualized education plan meetings, and attended other
meetings and parent/teacher conferences. K.B. had shown improvement with therapy.
He was swearing less, able to calm down faster and accomplish some tasks.
Ausderan testified that K.B. was very attached to his caregivers and household
members, and wanted to live with "daddy," referring to Donald K., who lived with K.B.'s
brother in the same household as K.B.'s caregivers. K.B. had had eight placements,
which compelled against moving him again, and he presently had consistency and
stability with his caregivers. Ausderan felt it was in K.B.'s best interest to maintain his
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relationship with his brother D.K.; they were close siblings, enjoyed being together, and
had lived together for D.K.'s entire life. Agency still recommended denial of Mother's
request for placement because K.B. was in a stable home attached to his current
caregivers, who were willing and able to provide him with longterm care and services
from which he was benefitting.
According to Ausderan, even assuming Mother's testimony was true, Agency had
no knowledge of significant progress in Mother's treatment, and felt it was not in K.B.'s
best interests to live with Mother. Ausderan pointed to Mother's history of substance
abuse but lack of aftercare treatment, and expressed concern about Mother's history of
overdosing on medication or not taking the prescribed amount, which needed to be
continually addressed. Since July 2012, Mother had not provided Agency with
information showing she was maintaining stability on her medications. Even if Mother
had been taking prescription medication for four months as she had claimed, Ausderan
testified it was not a significant amount of time in relation to Mother's history; Ausderan
wanted to see Mother with at least a year to a year and a half of stability on prescription
medication. Ausderan testified it would not be detrimental to K.B. if Mother's parental
rights were terminated; Mother had failed to maintain her role as a parent, had only
minimal contact with him, and was not providing his day to day care.
Stephen Grant, an Ampla Healthcare Center physician's assistant, was telephoned
and sworn in. He testified he had written a letter on Ampla letterhead in December 2013
on Mother's behalf based on an approximately 20-minute conversation with her. Grant
testified Mother seemed to be taking her medication and doing well on it, and saw no
17
evidence of depression or anxiety. However, he could not recall reviewing Mother's
medical records, did not recall her mental health history nor was familiar with her
medications, and did not know how many times she had been seen at Ampla. Grant had
no information about the child protective services allegations against her. The juvenile
court excluded Grant's December 2013 letter on hearsay grounds, and also excluded
certain documents purporting to show Mother's prescriptions.
The court denied Mother's section 388 petition. It acknowledged that Mother was
trying to turn her life around and had made efforts to stay on appropriate medication.
However, it also took into account Mother's four-year history of compliance and relapse,
and ruled the circumstances showed only the beginning of change, not the sort of change
that would permit K.B.'s return to Mother. The court pointed out that due to Mother's
move it did not have the sort of Agency supervision that would allow a social worker to
testify about changes Mother had made. Further, the court found due to the lack of
significant visitation by Mother, the significant bonding between K.B. and his caretakers,
and the stability of K.B.'s current placement, it would not be in his best interests, but in
fact detrimental to his emotional and mental stability, to return him to Mother. Thus, the
court concluded it did not have evidence to show a change had actually taken place; and
despite Mother's positive steps it could not find changed circumstances warranting the
requested relief by any evidentiary standard.
As for Agency's petition under section 366.26, social worker Blair testified that
though Agency had had previous concerns that one of the caregivers intended to give
Donald K. sole responsibility for K.B.'s care, Agency no longer had that concern in view
18
of the fact the caregivers had participated in Agency's recommended services, and they
had shown they were dedicated to giving K.B. permanency. Blair pointed out the
caregivers had an extended family home with Donald K. living in the same home as K.B.,
and had clarified that they were all going to participate in K.B.'s care, not merely adopt
him and give him to Donald K. Blair acknowledged Donald K.'s past drug possession
and reports of possible corporal punishment of K.B., as well as K.B.'s description of
Donald K. as "scary," but Agency had investigated those concerns or allegations and they
no longer existed from July 2013 to January 2014. Agency had no concerns that Donald
K. was physically abusing K.B., that K.B.'s caregivers were not providing for his daily
needs, that they had not adequately prepared themselves to have him in their home on a
consistent basis, or that they were not fully committed to his care. Social worker
Ausderan reiterated some of her conclusions about Mother's November 2013 visits with
K.B. She did not agree that the behavior she witnessed represented a mother/child
relationship.
The juvenile court found clear and convincing evidence K.B. was generally and
specifically adoptable: his caregivers wanted to adopt him, and there were 39 families in
San Diego that would adopt him. It found Mother's family reunification services had
been terminated, which was an independent ground for terminating parental rights unless
an exception applied. The court found Mother did not maintain regular visitation,
negating any finding of a parent/child bond. However, the court went on to rule there
was no evidence of any factor establishing a compelling reason that termination of
Mother's parental rights would be detrimental to K.B., and there was no evidence that the
19
parent/child bond existed. The court adopted Agency's recommendation and terminated
Mother's parental rights, finding clear and convincing evidence that there were no
circumstances making termination of such rights detrimental to K.B. and it was in K.B.'s
best interests to be adopted.
Mother appeals from the ensuing judgment.
DISCUSSION
I. Denial of Section 388 Petition
Mother contends the juvenile court abused its discretion by denying her section
388 petition because she presented substantial evidence she had addressed all of the
concerns leading to K.B.'s removal from her, and the court's ruling was unsupported by
substantial evidence. Specifically, Mother maintains the evidence showed she was no
longer living with George S., but had moved to Northern California in December 2012 to
live with her mother in a safe home with a room appropriate for K.B. She argues "there
was no substantial evidence [she] was not exhibiting stable mental health or was failing
to take her medication," but instead, had provided proof she was taking the medications
for her conditions, was stable and happy, and was receiving mental health and psychiatric
treatment. She argues there was no credible evidence to back up Agency's claims that
she needed a substance abuse program; to the contrary, she argues there was no evidence
she was enmeshed with drugs. Instead, she was living with her young daughter and
though there had been referrals for general neglect, they were closed as unfounded.
20
A. Legal Principles and Standard of Review
Section 388 allows a parent of a dependent child to petition the court "to change,
modify, or set aside any order of court previously made . . . ." On such a modification
petition, the juvenile court must determine whether the parent has demonstrated by a
preponderance of the evidence both that there was new evidence or a change of
circumstances and that it would promote the child's best interests to change, modify or set
aside the previous order. (See In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Casey D.
(1999) 70 Cal.App.4th 38, 47.) " '[I]t is not enough for [the petitioner] to show just a
genuine change of circumstances under the statute. The [petitioner] must show that the
undoing of the prior order would be in the best interests of the child.' " (In re Mickel
O. (2011) 197 Cal.App.4th 586, 615; see In re D.B. (2013) 217 Cal.App.4th 1080, 1094
[party moving under section 388 cannot simply rely on new evidence that may often arise
under the passage of time, the party must show that the change in the order will be in the
minor's best interests].)
Further, the petition must show changed, not changing, circumstances. (In re
Mickel O., supra, 197 Cal.App.4th at p. 615; In re Casey D., supra, 70 Cal.App.4th at pp.
45-47.) And "[n]ot every change in circumstance can justify modification of a prior
order. [Citation.] The change in circumstances must relate to the purpose of the order
and be such that the modification of the prior order is appropriate. [Citations.] . . . The
change in circumstances or new evidence must be of such significant nature that it
requires a setting aside or modification of the challenged order." (In re A.A. (2012) 203
Cal.App.4th 597, 612.)
21
The juvenile court's decision on the petition is addressed to its sound discretion
and will not be disturbed on appeal in the absence of a clear abuse. (In re Jasmon O.,
supra, 8 Cal.4th at pp. 415-416.) Under this standard, we do not reverse unless the
court's decision exceeds the limits of legal discretion by being arbitrary, capricious, or
patently absurd. (See In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Katelynn Y.
(2012) 209 Cal.App.4th 871, 881.) " '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.' " (In re Stephanie M., at p. 319; In re J.C. (2014) 226 Cal.App.4th
503, 525-526.)
B. Analysis
Applying the foregoing principles, we cannot say the juvenile court abused its
broad discretion in finding Mother had not demonstrated sufficiently changed
circumstances, but only changing circumstances. We disagree with Mother's assessment
of the evidence. Agency had been concerned about Mother's transient living situation, as
well as her failure to comply with her prescription medication regimen or see her treating
psychiatrist. The evidence showed Mother was not working and had not established her
own residence, but had moved in with her mother in a month-to-month tenancy. In
relation to Mother's four year history of unhealthy and uncertain living situations, the
court reasonably concluded that Mother had shown "hopeful beginnings" of change, but
not evidence to a preponderance that her circumstances had changed so significantly as to
compel it to place K.B. with her.
22
Additionally, though Mother testified at the hearing she was in compliance and
engaged in online psychiatric visits for the past few months, given Mother's history of
dishonesty to social workers about her housing and attendance at NA/AA meetings, the
juvenile court was well within its discretion to give little weight to her testimony. Mother
did not present evidence to substantiate her claims; there was no written record of the
prescriptions Mother was taking, no evidence from any treating psychiatrist or physician,
and Grant's testimony was unspecific with little foundation: he admitted he only could
reach an assumption that Mother was appropriately taking medications based on her
coming in for refills at appropriate times. None of Mother's evidence rose to the level of
competent medical evidence she was complying with a psychotropic medication regimen
or seeing a physician on an appropriate basis. Even assuming the court accepted the truth
of Mother's statements, it could reasonably conclude that four months of compliance was
simply the start of change, and not evidence of genuine, significant change warranting a
modification of its order.
Finally, given Mother's past drug use and 2012 relapse into synthetic drug use, it
was Agency's recommendation throughout K.B.'s dependency and as late as 2013 that
Mother maintain her sobriety and attend NA/AA meetings at least once a week and
obtain a sponsor. But Mother admitted she was not attending such meetings or receiving
any type of substance abuse aftercare. And, in September 2013 workers found her
confused and appearing "stoned," and Mother could not show them she was taking
anxiety medication as she claimed.
23
We reject Mother's argument that the juvenile court's ruling is as deficient and
speculative as that in In re M.V. (2006) 146 Cal.App.4th 1048.5 She maintains the court
failed to consider her "critical" evidence that she was attending to her mental health
issues or the absence of evidence she was abusing alcohol or drugs. But the juvenile
court had before it Agency's April, July, October, November and January 2013 reports
and addenda, as well as the social workers' testimony, and contrary to M.V., the record is
clear that the juvenile court understood the pertinent inquiry and Mother's burden on her
motion. This case does not present the same circumstances as M.V.
Nor can we conclude the juvenile court erred by ruling Mother had not
demonstrated that an order giving her custody was in K.B.'s best interests. "To
understand the element of best interests in the context of a [section] 388 petition filed . . .
on the eve of the [section 366.26] hearing, we turn to the Supreme Court's language in In
re Stephanie M., supra, 7 Cal.4th 295: '[A]t this point "the focus shifts to the needs of the
child for permanency and stability" [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
J.C., supra, 226 Cal.App.4th at p. 526.)
5 In In re M.V., supra, 146 Cal.App.4th 1048, the appellate court found the juvenile
court's findings prevented meaningful review: "[T]he findings before us are not
sufficient to support a finding of changed circumstances or a finding that the proposed
change was in M.V.'s best interests. Our conclusion is bolstered by the absence of any
indication on the record that the court understood the necessity of finding that the agency
had the burden of proving by a preponderance of the evidence that changed
circumstances existed and that the proposed change was in M.V.'s best interests." (Id. at
pp. 1059-1060.)
24
Here, the evidence established that K.B. had a stable placement with Edna and
Walter H., who had been in his life since he was nine months old and who sought to
adopt him and provide him permanency. They provided not only for his basic needs for
emotional and developmental support and a stable and safe home, but also his needs for
therapy and specialized education. Mother had had only five documented visits with
K.B. since her move to Northern California (with a period of approximately 10 months
where she did not visit him at all) and she showed no interest in scheduling weekly
visitation with K.B. or participating in his education and therapy. Mother showed no
interest in K.B.'s progress with his behavior. Further, social worker Ausderan
contradicted Mother's account of her visits with K.B.; Ausderan did not observe the sort
of close, loving relationship Mother described.
Mother suggests we should apply a "paradigm" developed in In re Kimberly F.
(1997) 56 Cal.App.4th 519 in which the appellate court set out a list of nonexhaustive
factors to consider in determining the child's best interest: the seriousness of the problem
leading to dependency and the reason that problem was not overcome by the time of the
final review; the strength of relative bonds between the dependent children to both parent
and caretakers and the length of time a child has been in the dependency system in
relationship to the parental bond; the degree to which the problem may be easily removed
or ameliorated; and the degree to which it actually has been. (Id. at pp. 530-532.) These
factors, however, focus primarily on the parent, and as the court in In re J.C. correctly
observed, "the interests of the parent and the child have diverged by the point of a
[section 366.26] hearing to select and implement a child's permanent plan." (In re J.C.,
25
supra, 226 Cal.App.4th at p. 527 [declining to apply Kimberly F. factors "if for no other
reason they do not take into account the Supreme Court's analysis in In re Stephanie M.,
applicable after reunification efforts have been terminated"]; see Cynthia D. v. Superior
Court (1993) 5 Cal.4th 242, 254.) Our focus must be on the child's need for permanency
and stability; K.B. has a fundamental independent interest in belonging to a family unit,
being protected from abuse and neglect, and to have a placement that is stable and
permanent and allows the caretaker to make a full emotional commitment to him. (In re
Stephanie M., supra, 7 Cal.4th at p. 317; In re Marilyn H. (1993) 5 Cal.4th 295, 306,
309.)
The question here, after Mother's reunification services have terminated, is
whether Mother showed how her proposed change would advance K.B.'s need for
permanency and stability. (In re J.C., supra, 226 Cal.App.4th at p. 527.) It is not enough
for Mother to merely assert she was doing better and that there was a sufficient bond such
that reunification would be beneficial; she must rebut a presumption that continued
placement with his caretakers was in K.B.'s best interest. (In re Marilyn H., supra, 5
Cal.4th at p. 310.) We conclude on this record Mother did not establish that K.B.'s need
for permanency and stability would be advanced by reunification efforts or by his return
to her custody. The juvenile court found Mother's testimony and evidence lacked
sufficient weight and credibility to carry her burden of proof, and we will not reweigh the
evidence or reassess credibility. (See In re Casey D., supra, 70 Cal.App.4th at pp. 52-
53.)
26
II. The Juvenile Court Properly Concluded Mother Failed to Establish the Parental
Benefit Exception to Adoption
A. Legal Principles
At a section 366.26 permanency planning hearing, the juvenile court determines a
permanent plan of care for a dependent child, which may include adoption. (In re S.B.,
supra, 164 Cal.App.4th at p. 296; In re Casey D., supra, 70 Cal.App.4th at p. 50.) "If the
dependent child is adoptable, there is strong preference for adoption over alternative
permanency plans." (In re S.B., at p. 297; In re Michael G. (2012) 203 Cal.App.4th 580,
588.)
In order to avoid termination of parental rights and adoption, a parent has the
burden of showing that one or more of the statutory exceptions to termination of parental
rights set forth in section 366.26, subdivision (c)(1)(A) or (B) apply. (In re Scott B.
(2010) 188 Cal.App.4th 452, 469.) The exceptions permit the court, "in exceptional
circumstances," "to choose an option other than the norm, which remains adoption." (In
re Celine R. (2003) 31 Cal.4th 45, 53.) The so-called parental benefit exception applies
when there is "a compelling reason for determining that termination [of parental rights]
would be detrimental to the child due to . . . the following circumstances: [¶] . . . 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), italics added.)
"The 'benefit' necessary to trigger this exception has been judicially construed to mean,
'the relationship 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. In
27
other words, the court balances the strength and quality of the natural parent/child
relationship in a tenuous placement against the security and the sense of belonging a new
family would confer. 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 J.C., supra, 226 Cal.App.4th at pp. 528-529; see also In re Autumn
H. (1994) 27 Cal.App.4th 567, 575.) The parent asserting the exception has the burden of
proving it by a preponderance of the evidence. (In re J.C., at p. 529.)
We apply the substantial evidence standard of review to the factual issue of the
existence of a beneficial parental relationship, and the abuse of discretion standard to the
determination of whether there is a compelling reason for finding that termination would
be detrimental to the child. (In re J.C., supra, 226 Cal.App.4th at pp. 530-531; In re K.P.
(2012) 203 Cal.App.4th 614, 621-622; In re Bailey J. (2010) 189 Cal.App.4th 1308,
1314-1315.) The latter determination "calls for the juvenile court to determine the
importance of the relationship in terms of the detrimental impact that its severance can be
expected to have on the child and to weigh that against the benefit to the child of
adoption . . . ." (In re J.C., at p. 531.)
B. Substantial Evidence Supports the Juvenile Court's Finding that Mother Did Not
Engage in Regular Visitation and Contact with K.B.
Mother contends she presented evidence of a loving parent-child relationship with
K.B., both when they were together and living apart, so as to establish the beneficial
parental relationship exception to adoption under section 366.26, subdivision (c)(1)(A).
28
On the issue of whether Mother maintained "regular visitation and contact" within
the meaning of section 366.26, subdivision (c)(1)(B)(i), the juvenile court concluded:
"[W]hile [Mother's] telephone contact was well-intentioned, . . . the period of time that
went by without face-to-face visitation between mother and child was highly significant
and there's no way that any reasonable person could conclude that that constituted regular
visitation between the mother and child." It found regular visitation and contact with
K.B. had not occurred, which prevented application of the beneficial parental relationship
exception to adoption.
Mother argues the evidence does not support this finding. She asserts that while
she lived in San Diego, she had good face-to-face visits with K.B., set appropriate limits,
and remained in close proximity during visits. She points to the circumstances before
K.B.'s second removal from her: evidence of two one-hour visits she had with K.B. in
October 2010, in which she was reported to have acted appropriately and K.B. greeted
and went easily to her.6 Mother states that once she moved to Northern California, she
"was able to build on the strong bonded relationship she had already established [in that
she] talked to him on the phone as often and as long as she could."
Mother fails to acknowledge evidence that for about a 10-month period after her
September 2012 move to Northern California (from approximately September 2012 to
June 2013), she did not see K.B. at all. Reports indicate that as of March 2013, Mother
was only engaging in once-a-week telephone contact with K.B., having brief
6 The visit monitor, however, could not report for either visit that K.B. did not want
the visit to end.
29
conversations with him without requesting any visitation or inquiring about his well-
being. At the section 366.26 hearing, Mother admitted that during some but not all weeks
she spoke with K.B. only once or twice over the phone, the longest call being 10 minutes,
though she claimed she tried to call every day and left messages. She visited K.B. five
times from the time of her September 2012 move to the January 2014 section 366.26
hearing, despite the fact Agency had never placed any restrictions on the number of times
she could travel and see him in a supervised setting. Mother does not claim that K.B.'s
caregivers prevented her from engaging in more frequent visitation or contact, and there
is no evidence they did so.
This court has made clear that sporadic visitation is insufficient to satisfy this
prong of the beneficial relationship exception. (In re C.F. (2011) 193 Cal.App.4th 549,
554.) "Regular visitation exists where the parents visit consistently and to the extent
permitted by court orders." (In re I.R. (2014) 226 Cal.App.4th 201, 212, citing In re
Brandon C. (1999) 71 Cal.App.4th 1530, 1537.) We conclude evidence of Mother's
minimal visitation and contact here—five visits in the span of about 16 months, and brief
telephone contact once a week—amply supports the juvenile court's finding that Mother
had not satisfied this prong.
C. The Juvenile Court Did Not Abuse its Discretion in Finding The Benefit of
Maintaining the Parent-Child Relationship Did Not Outweigh the Benefit of Adoption
Mother contends she demonstrated it was in K.B.'s best interests to continue his
relationship with her. Distinguishing cases in which courts found no evidence of a
beneficial relationship (In re Autumn H., supra, 27 Cal.App.4th 567; In re C.F., supra,
30
193 Cal.App.4th 558; In re Casey D., supra, 70 Cal.App.4th 38), Mother argues she did
not relapse as the mother did in In re C.F. but remained "totally focused" on K.B., she
was "not merely a friendly visitor" to K.B., and she "satisfied all of [K.B.'s] needs when
they were together." According to Mother, K.B. relied on her, was never uncomfortable
with her, and "came home in good spirits and good health. . . ."
To meet this prong of the exception, Mother "must show more than frequent and
loving contact or pleasant visits," but that she "occupies a parental role" in K.B.'s life. (In
re C.F., supra, 193 Cal.App.4th at pp. 555, 558-559; In re Mary G. (2007) 151
Cal.App.4th 184, 207.) As we have stated, Mother must show her "relationship promotes
the well-being of [K.B.] to such a degree as to outweigh the well-being [he] would gain
in a permanent home with new, adoptive parents. In other words, the court balances the
strength and quality of the natural parent/child relationship in a tenuous placement
against the security and the sense of belonging a new family would confer. 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., supra, 27 Cal.App.4th at p. 575.)
Additionally, Mother must not only demonstrate the positive aspects of her
relationship with K.B., but "must show [he] would suffer detriment if his . . . relationship
with the parent were terminated." (In re C.F., supra, 193 Cal.App.4th at p. 555.) Indeed,
severing of the relationship must " 'deprive the child of a substantial, positive emotional
attachment such that the child would be greatly harmed.' " (In re Marcelo B. (2012) 209
31
Cal.App.4th 635, 643.) Mother " 'may not derail an adoption merely by showing [K.B.]
would derive some benefit from continuing a relationship maintained during periods of
visitation with the parent.' " (Ibid.)
Mother's showing again focuses on early visits between her and K.B. before his
second removal from her, and ignores the fact that K.B. had been living for more than
half his life with his caretakers, who provided for all of his physical, emotional and
special needs, and with whom K.B. wished to live. There is no bonding study
establishing a primary maternal relationship, and Mother's evidence disregards the social
worker's conclusions that she had not demonstrated an ability to provide for K.B.'s
physical, emotional or medical needs, and simply did not share a parent/child relationship
with K.B. Mother manifestly has not shown that severing her natural parent/child
relationship would deprive K.B. of a substantial, positive, emotional attachment such that
he would be greatly harmed.
We are unpersuaded by Mother's comparison of these circumstances to other
cases, including those in In re S.B., supra, 164 Cal.App.4th 289. In In re S.B., this court
reversed a finding that the beneficial parent-child relationship exception did not apply
after concluding a father had established his daughter S.B. would be greatly harmed by
the loss of the significant positive relationship she shared with him. The father had
complied with " 'every aspect' " of his case plan, frequently visited his daughter, and was
patient and loving to her. (Id. at p. 298.) A bonding study described the bond between
the father and child and parent as " 'fairly strong' or 'moderate.' " (In re S.B., at p. 295.)
32
The psychologist who had conducted the study testified there was a potential for harm to
S.B. were she to lose the parent-child relationship. (Id. at p. 296.)
We explained: "For the first year after she was removed from parental custody,
S.B. continued to display a strong attachment to [father]. She was unhappy when visits
ended and tried to leave with [father] when the visits were over. [Father] was sensitive to
S.B.'s needs. Social worker Brown noted, '[father] consistently puts his daughter[']s
needs and safety before his own.' S.B. responded to [father's] attention. During one visit,
S.B. 'sat on [father's] lap . . . [and] proudly showed off the pink tennis shoes he had
bought her.' The record clearly establishes S.B. initiated physical contact with [father].
Dr. Kelin observed that S.B. 'ran into [father's] arms, again getting her father to pick her
up.' [Father] and S.B. shared an affectionate relationship. S.B. 'nestle[d] up to [father's]
neck' and 'whispered and joked with him.' The record also shows S.B. loved [father] and
wanted their relationship to continue. S.B. whispered to her father, 'I love you.' As
[father] started to leave, S.B. stated, 'I'll miss you,' and then she gave him another hug.
S.B. spontaneously said, 'I wish I lived with you and Mommy and Nana.' " (In re S.B.,
supra, 164 Cal.App.4th at p. 298.) We concluded: "The record shows S.B. 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 S.B. would be
greatly harmed by the loss of her significant, positive relationship with [father]." (Id. at
pp. 300-301.)
33
This case is readily distinguishable from In re S.B. In particular, unlike S.B., there
is no indication K.B. ever expressed any desire to live with Mother. Rather, social
worker Blair reported that as of age four, K.B. stated he wanted to live with his
grandmother Edna and Donald K. Based on the social workers' reports, K.B. plainly did
not share the kind of affection for Mother that S.B. expressed for her father. K.B. did not
display such an emotional attachment to Mother, but easily separated from her at the
conclusion of his visits, and readily returned to his caregivers. Further, though Mother
showed some progress in her living situation, she was unable to show she had maintained
her psychotropic medication regimen or was participating in substance abuse programs to
avoid falling back into drug use. We have repeatedly cautioned that S.B.'s holding must
be limited to its particular and "extraordinary" facts (see In re Jason J. (2009) 175
Cal.App.4th 922, 937; In re C.F., supra, 193 Cal.App.4th at pp. 558-559), and we so
limit its application here. Given the factual dissimilarities, In re S.B. is not controlling.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
34