In re M.R. CA2/6 ( 2020 )

Filed 11/17/20 In re M.R. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
In re M.R., a Person Coming 2d Juv. No. B305665
Under the Juvenile Court Law. (Super. Ct. No. J071938)
(Ventura County)
VENTURA COUNTY HUMAN
SERVICES AGENCY,
Plaintiff and Respondent,
v.
S.H.,
Defendant and Appellant.
S.H. (Mother) appeals orders of the juvenile court
terminating her parental rights to her child M.R. and denying
her petition under Welfare and Institutions Code1 section 388
seeking reinstatement of family reunification services.
All statutory references are to the Welfare and
1
Institutions Code.
(§ 366.26.) We conclude Mother has not shown an abuse of
discretion. We affirm.
FACTS
On November 6, 2018, the Ventura County Human
Services Agency (HSA) filed a juvenile dependency petition
(§ 300, subds. (b)(1) & (g)), alleging that Mother had been
arrested for possession of a controlled substance and child abuse.
HSA said Mother “has substance abuse issues” involving heroin
and methamphetamine which interferes with her ability to
provide adequate care for her 20-month-old child. Mother
admitted using heroin daily and methamphetamines weekly. In
her home, police found a bag “full of needles.” There was a “filled
needle” located on the child’s “changing table.” The child was
taken into protective custody.
On November 7, 2018, the juvenile court ruled that it was
contrary to the child’s best interests to remain in Mother’s home,
and that the child comes within section 300. Mother would
receive visitation with the child, as approved by HSA.
In a jurisdiction/disposition report, HSA recommended that
the child be declared a dependent of the juvenile court and that
Mother receive family reunification services. HSA noted that
Mother “is presently incarcerated.” It said, “The Agency is
worried the mother will use drugs and be unable to safely
supervise the child . . . .”
The juvenile court found it had jurisdiction, and on
December 31, 2018, it sustained the juvenile dependency petition.
The court initially ruled that the child should be removed from
Mother’s custody. But it subsequently approved the child being
placed with Mother “on a 60-day extended visit at Prototypes
Women’s Center.”
2
In January 2019, HSA ended that visit because Mother had
relapsed and used drugs “twice in a two-week period.” Mother
was discharged from Prototypes.
In February, Mother entered the Lighthouse Recovery
Program. She left that program early after only 12 days.
Between January and May 2019, Mother was required to
have 13 drug tests. She missed four tests. In nine random drug
tests, Mother tested positive for methadone. She also tested
positive for “alcohol, opiates, and methamphetamines” in four of
the nine tests.
On September 9, 2019, the child’s counsel filed a petition
(JV-180) to terminate Mother’s reunification services based on
the following facts: 1) Mother tested positive for morphine in
August 2019 and was asked to leave a “sober living” treatment
center; 2) since June 2019, Mother had seven opportunities to
take random drug tests; she only took five tests and tested
positive for methadone and morphine; 3) Mother “failed to
regularly participate in her case plan”; 4) Mother entered a sober
living facility on March 29, 2019, and was forced to leave because
of a positive test for morphine; 5) Mother missed an in-home
therapy session in August 2019; and 6) in August 2019, “[d]rug
paraphernalia was found [] in a bathroom cabinet in a bathroom
the minor child had access to unsupervised.”
HSA filed a report stating that Mother tested positive for
opiates on September 23, 2019. HSA also reported that Mother
“admitted to using drugs” in September 2019 “while at Criminal
Court.” A social worker reported that the child is now in “a
loving and caring” foster home. HSA recommended that
reunification services be terminated. It said, “[M]other has not
been able to maintain her sobriety for any length of time; she has
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continued to be dishonest and unable to take responsibility for her
actions.” (Italics added.)
In October 2019, the juvenile court terminated Mother’s
reunification services and set a section 366.26 hearing.
Mother filed a section 388 petition seeking to reinstate
reunification services. That petition was considered at the
section 366.26 hearing.
At that February 2020 hearing, the HSA social worker
testified Mother tested positive for methamphetamine and
opiates on September 13, 2019. She tested positive for opiates on
September 23, 2019. She used methamphetamine on September
24 while she was on “medically-assisted treatment.” Mother
admitted using drugs “while in criminal court.” Mother missed
drug tests. The child told the social worker that she wanted to go
home. By home, she was referring to “the foster parents’ home.”
Mother testified that she is “able to remain on medically-
assisted treatment” now. She has been sober since September 25,
2019. She visits the child once a week for one hour. The child
calls her “mommy.” Mother said that when the child was at
Prototypes, “[they] sing, [they] play with toys, [they] play hide-
and-seek, [they] go outside, and [they] go on walks.” She said,
“And sometimes [the child] just wants me to hold her.” The child
is “excited to see [her].” Mother also testified that she used drugs
in July 2019 while at a sober living house. She also “relapsed” in
August 2019. That occurred at a sober living facility.
One of the foster parents told the juvenile court that it was
a “joy to care for [the child] over the last 13 months.” The child
“is secure and thriving from the consistency, safety, love and
predictability of [their] home.”
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At the section 366.26 hearing, the juvenile court denied the
section 388 petition and terminated Mother’s parental rights to
the child.
DISCUSSION
The Section 388 Petition
Mother contends the juvenile court abused its discretion in
denying her section 388 petition to reinstate reunification
services.
“Section 388 allows a person having an interest in a
dependent child of the court to petition the court for a hearing to
change, modify, or set aside any previous order on the grounds of
change of circumstance or new evidence.” (In re Anthony W.
(2001) 87 Cal. App. 4th 246, 250.) To make a “prima facie
showing,” the “parent must demonstrate (1) a genuine change of
circumstances or new evidence, and that (2) revoking the
previous order would be in the best interests of the children.”
(Ibid.)
“We review the trial court’s findings for substantial
evidence.” (In re Dakota H. (2005) 132 Cal. App. 4th 212, 228.)
“We do not reweigh the evidence, evaluate the credibility of
witnesses, or resolve evidentiary conflicts.” (Ibid.) We draw all
reasonable inferences in support of the trial court’s findings. (In
re Nicole B. (1979) 93 Cal. App. 3d 874, 879.)
“After the termination of reunification services, a parent’s
interest in the care, custody and companionship of the child is no
longer paramount.” (In re Angel B. (2002) 97 Cal. App. 4th 454,
464.) “Rather, at this point, the focus shifts to the needs of the
child for permanency and stability.” (Ibid.) “When custody
continues over a significant period, the child’s need for continuity
and stability assumes an increasingly important role.” (Ibid.)
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“That need often will dictate the conclusion that maintenance of
the current arrangement would be in the best interests of that
child.” (Ibid.)
On December 24, 2019, Mother filed a request to change
court order (§ 388) to reinstate reunification services. She
claimed that she entered the Prototypes program and was
“completely sober from opiates” since September 2019. She said
she had attended supervised visits with the child for one hour per
week.
The trial court ruled, “Mother has not shown a change of
circumstances such that offering her 6 more months of
reunification services would be in [the child’s] best interest.” She
has not demonstrated that she could provide the child with “a
safe, sober, stable home.” Mother “has not been successful in
remaining sober for any extended period of time.”
Mother notes that in HSA’s brief it concedes that she “was
laudably trying to conquer her drug addiction.” But HSA also
noted that Mother’s “circumstances were merely changing and a
long way off from having actually changed.” A “change in
circumstances must be substantial.” (In re Ernesto R. (2014) 230
Cal. App. 4th 219, 223.) Recent completion of drug and
rehabilitation programs is laudable, but that, by itself, may not
be sufficient for one who has had a long-term drug addiction and
a long history of multiple relapses. (Ibid.) This is particularly
the case where the change is alleged to have occurred after the
termination of reunification services. The court must also
consider the child’s best interests, bonding with a foster family,
and the child’s current need for a stable home. (Id. at pp. 223-
224.) “ ‘Childhood does not wait for the parent to become
adequate.’ ” (Id. at p. 224.)
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The record supports the juvenile court’s findings. Mother
had not successfully completed the requirements for family
reunification. She had a longstanding drug addiction problem.
She had entered various treatment programs over the years. But
she continually relapsed and returned to drugs. She was sober
for only a relatively short period of time before she filed the
section 388 petition. That was not long enough to show she had
overcome her drug addiction. Mother made an effort to reform,
but these were only “recent efforts at rehabilitation” after
substantial noncompliance with a reunification plan. (In re
C.J.W. (2007) 157 Cal. App. 4th 1075, 1081; In re Kimberly F.
(1997) 56 Cal. App. 4th 519, 531, fn. 9.) This drug addiction
problem presented a danger for the child. The child’s prospective
adoptive parents had provided the child with a safe and stable
home. This was something the trial court could find Mother had
not been able to accomplish.
Mother claims she should be entitled to additional
reunification services because of her social worker’s “service
errors” and the worker’s “discouragement of” a medication-
assisted treatment (MAT) program. HSA responds that the
social worker acknowledged that she told Mother on March 14,
2020, that “visits would not liberalize until [Mother] was
‘weaning off’ methadone.” But the social worker did not say
Mother had to be “ ‘off methadone’ altogether.” HSA notes it did
not prevent visitation with the child. It argues this claim is an
example of Mother “subtly shifting blame for her relapses to
others instead of herself.”
Mother suggests that the social worker had no authority to
question the impact or effectiveness of her (Mother’s) MAT
because of its well-established benefit to heroin users.
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Medically assisted methadone treatment may well be
beneficial for certain drug addictions. But public social services
agencies have a right to be concerned when a parent on
methadone treatment is also testing positive for other drugs.
(Karen H. v. Superior Court (2001) 91 Cal. App. 4th 501, 504-505.)
That is a sign that the treatment is not working and that the
parent cannot “maintain a sober life.” (Id. at p. 505.)
Given the facts of this case, the social worker could be
concerned about the impact and effectiveness of Mother’s drug-
administered treatments because Mother: 1) had a long drug
abuse history, 2) had placed the child in danger because of drug
abuse, 3) appeared to be under the influence during visits, 4) had
repeatedly tested positive for various drugs, 5) had not been
honest with the social worker, 6) did not comply with
reunification services, and 7) was demanding greater visitation
with a very young child.
Mother argues the juvenile court did not appreciate the
benefits of her current MAT program in treating drug abuse and
the court decided to bypass the issue. But that is not the case.
The court found “while on MAT since September 2019 and while
living in a controlled environment, the mother can remain sober.”
But it also found Mother has not shown that “she can remain
sober while living in a less structured setting in the community,
around the various triggers that resulted in her choosing to
resume drug use.” The court also rejected the credibility of
Mother’s claim that she had resolved her drug problem with her
current medical treatment given her history. It found, “[M]other
has participated in substance abuse treatment several times
before and since [the child] was born. She has used MAT many
times to help her avoid relapsing; but she has not been successful
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in remaining sober for any extended period of time.” Mother has
not shown the court abused its discretion by not reinstating
reunification services.
Terminating Parental Rights
Mother contends the juvenile court’s order terminating
parental rights should be reversed because she and the child
shared a beneficial relationship. (§ 366.26, subd. (c)(1)(B)(i).)
Section 366.26, subdivision (c)(1) provides, in relevant part,
“If the court determines, based on the assessment provided as
ordered under subdivision (i) of Section 366.21 . . . , and any other
relevant evidence, by a clear and convincing standard, that it is
likely the child will be adopted, the court shall terminate
parental rights and order the child placed for adoption.” But
there is an exception where the court “finds a compelling reason
for determining that termination would be detrimental to the
child due to . . . the following circumstances: (i) The parents have
maintained regular visitation and contact with the child and the
child would benefit from continuing the relationship.” (Id., subd.
(c)(1)(B)(i).)
This exception requires the parent to meet a high “hurdle.”
(In re Casey D. (1999) 70 Cal. App. 4th 38, 51.) The legislative
intent is that “adoption should be ordered unless exceptional
circumstances exist.” (Ibid.) The “well-being of the child” is a
critical issue for the court to decide where a parent claims this
exception. (Id. at p. 50.)
Here the juvenile court recognized that Mother had visited
the child. But it also found the child “has not lived consistently
with [Mother] since November 2018 when she was 20 months
old.” The child was removed at that time because of Mother’s
“substance abuse” problems. Mother “had been arrested or
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charged with drug-related offenses eight different times since
2015.” She had a long history of obtaining drug treatment and
then relapsing and testing positive. The court said Mother
presented evidence that since September 2019 she “has been
sober” while living at the Prototypes treatment center. But she
“has not yet been able to demonstrate that she can remain sober
while living in a less structured setting in the community.”
Mother claims the juvenile court should have credited her
testimony that she had been sober since September 25, 2019, and
is able to remain sober on “medically-assisted treatment.” But
the trial court decided her credibility. (In re Casey D., supra, 70
Cal.App.4th at p. 52.) Moreover, Mother admitted that she took
drugs in July and “relapsed” in August 2019. Her August relapse
date is close in time to her claimed September 25th “sober” date.
Mother was also asked, “And you were initially not honest with
your social worker about your relapse, were you?” Mother: “No.”
Mother claimed she was satisfied with her current circumstance
at the Prototypes center. But she testified that she had been to
that program on two prior occasions. The court could draw a
reasonable inference that simply being at that program was not
an assurance that her drug problem was resolved.
Moreover, the juvenile court could also reasonably find
Mother’s actions did not show a substantial commitment for the
child’s well-being; instead, they placed the child at risk. Mother
could not complete her initial case plan. She had a longstanding
drug addiction. A social worker noted that on several supervised
visits with the child prior to September 2019, Mother “appeared
under the influence of drugs,” could not “maintain eye contact,”
and “arrived late to these visits.” She noted that Mother “was
using drugs during a visit” with a relative. Mother had left drug
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needles near the child. She admitted using drugs “while at
Criminal Court.” In one HSA report, the agency noted that
Mother had been “dishonest” and “unable to take responsibility
for her actions.” The court said that Mother “made a choice to
use drugs many times since [the child] was removed, and even
when [the child] was returned to her care.” The child “has
suffered because of the mother’s choices.”
Mother argues: 1) her social worker’s report showed the
child had a strong attachment to her foster parents, but the social
worker’s testimony about it “seemed lackluster,” and 2) Mother’s
testimony showed “the child’s relationship with [Mother] seemed
stronger than the relationship she had with her foster parents.”
But the court could find the social worker’s reports and testimony
were not inconsistent and Mother’s testimony was self-serving.
The trial court exclusively decides the credibility of the witnesses.
Here the juvenile court found the child “does not have a
bond with her mother.” This finding shows the court rejected the
credibility of Mother’s testimony about bonding. (In re Casey D.,
supra, 70 Cal.App.4th at p. 52.) The court said, “There is no
evidence that [the child] currently suffers from not seeing her
mother between visits.” “The visits are pleasant and the mother
is appropriate.” “[B]ut after living with her caregivers for over a
year, [the child] sees them as her family . . . .” (Italics added.)
“All of [the child’s] needs are being met by her resource parents
and family. The benefits [the child] will gain from adoption,
including a permanent and stable home, outweigh the possible
detriment resulting from a termination of parental rights.”
The HSA evidence supports these findings. HSA reports
show the child now has “a strong attachment to her prospective
adoptive parents and their adoptive children.” The child is
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“adoptable,” “well adjusted,” and “thriving in a loving home.” She
refers to the children of her prospective adoptive parents as her
“sissies,” meaning her sisters. The “prospective adoptive parents
express their love and commitment for [the child].” The court
could reasonably find the child’s current interest in safety and
stability was furthered by her living with her prospective
adoptive family, rather than with Mother at a drug rehabilitation
program while Mother attempts to overcome her addiction.
Mother notes that the child was receiving therapy, but the
child’s therapist did not make a “placement” recommendation.
She claims this was “highly irregular” and does not support the
juvenile court’s findings. But the therapist did not make such
recommendation because she felt “it is ultimately not my part to
decide or influence where [the child] is placed permanently . . . .”
Moreover, the therapist’s assessment supported the
juvenile court’s findings. She said that the child “is bonding very
well” with the foster family, and “is making great strides in her
ability to ask for her needs, communicate her likes/dislikes, and
co-regulate emotionally with caregivers.” This current home “has
provided [the child] with the utmost care for her well-being, and
emotional and physical safety.” “[W]ith [the child’s] current
placement, she has really come out of her shell and is achieving
her therapeutic goals.”
We have reviewed Mother’s remaining contentions and we
conclude she has not shown grounds for reversal.
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DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.
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Tari L. Cody, Judge
Superior Court County of Ventura
______________________________
Maryann M. Goode, under appointment by the Court of
Appeal, for Defendant and Appellant.
Leroy Smith, County Counsel, Joseph J. Randazzo,
Assistant County Counsel, for Plaintiff and Respondent.
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