In re R.H. CA4/2 ( 2024 )

Filed 10/1/24 In re R.H. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re R.H., a Person Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E083656
Plaintiff and Respondent, (Super.Ct.No. J283368)
v. OPINION
K.S.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,
Judge. Affirmed.
Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and
Appellant.
Tom Bunton, County Counsel, and Dawn M. Martin, Deputy County Counsel, for
Plaintiff and Respondent.
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Defendant and appellant K.S. (mother) appeals the San Bernardino County
juvenile court’s Welfare and Institutions Code section 366.361 order terminating her
parental rights as to her child, R.H. We will affirm.
BACKGROUND
A detailed account of the procedural and factual history of the section 300
proceedings up to and including adjudging R.H. a dependent of the court is set forth in
our opinion issued in mother’s prior appeal. (In re R.H. (May 26, 2023, E079932)
[nonpub. opn.].) Suffice to say here that R.H. was three years old in November 2019
when his sibling (baby girl S.) was born with methamphetamine in her system and taken
into protective custody at the hospital by respondent San Bernardino County Department
of Children and Family Services (the Department). The Department filed section 300
juvenile dependency petitions on behalf of R.H. and baby girl S.
For the next 31 months, mother and S.H. (father), refused to disclose R.H.’s
whereabouts. In the meantime, baby girl S. had been adjudged a dependent of the court
and after unsuccessful efforts to engage the parents in family reunification services the
juvenile court issued an order terminating parental rights as to her.
In July 2022, R.H. was found, taken into protective custody, and placed with the
G family. At the September contested hearing on jurisdiction, the juvenile court
sustained an amended section 300 petition, including allegations that mother had a
substance abuse problem from which she had failed or refused to rehabilitate, and she and
1 All further statutory references are to the Welfare and Institutions Code. All
references to rules are to California Rules of Court.
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father have a history of engaging in domestic violence with one another. In October, the
court adjudged R.H. a dependent of the court, removed him from parental custody, and
continued his placement in the G’s home. Family reunification services were bypassed
and the court found it would be in R.H.’s best interest to consider termination of parental
rights. It ordered weekly two-hour supervised visits for the parents and R.H.
Mother and father timely appealed the juvenile court’s findings and orders on
jurisdiction and disposition. We affirmed. (In re R.H., supra, E079932.)
In the period between the disposition hearing and the resolution of the parents’
appeal, the court designated the G family as holders of R.H.’s educational rights and
granted their request for de facto parent status. Also during that time, mother and the
father traveled to Nevada, where mother gave birth to another child, baby girl A., who
was born with a positive toxicology for methamphetamine and amphetamine. Baby girl
A. was taken into custody in Nevada and transferred to the Department’s care. She was
placed with the G family. The court adjudged her a dependent of the juvenile court and
family reunification services were bypassed. In September 2023, the court terminated the
parents’ rights as to baby girl A. and she remained in the G home with R.H.
In September 2023, the court set a section 366.26 hearing to select a permanent
plan for R.H. Three days before the contested hearing, mother filed a section 388 petition
requesting an order for family reunification services or return of R.H. to her care with
family maintenance services. The Department filed arguments in opposition. At the
hearing to determine whether to hold an evidentiary hearing, the court found the petition
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did not reflect substantial change in mother’s circumstances and that granting it would
not be in R.H.’s best interest.
After denying mother’s petition, the court held a contested hearing to select a
permanent plan for R.H. Mother testified that she and R.H. shared a really strong bond
and asked the court to consider a legal guardianship or other lesser permanent plan. The
court found R.H. was generally and specifically adoptable, rejected mother’s argument
that severing the parent-child bond would cause great harm or detriment to R.H. and
ordered termination of parental rights. Mother timely noticed this appeal.
DISCUSSION
Mother raises two issues on appeal: the juvenile court erred when it denied her
section 388 petition and that it erred when it failed to conduct an analysis of the
beneficial parent-child exception to termination of parental rights.
1. The Denial of Mother’s Section 388 Petition
Mother argues it was error to deny her petition because she demonstrated her
circumstances had changed and because a juvenile court order granting family
reunification services or return of R.H. to her with family maintenance services would be
in R.H.’s best interest. In its responsive brief, the Department claims (without a separate
heading or subheading as required by rule 8.204(a)(1)(B)), that the denial of mother’s
section 388 petition is not cognizable on appeal because that issue was not included in
her notice of appeal. We agree with the Department.
Our jurisdiction to review a timely appeal of an appealable order is limited to the
judgment or order described in the notice of appeal or its legal equivalent. (In re J.F.
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(2019) 39 Cal.App.5th 70, 75 (J.F.).) In relevant part, rule 8.405(a)(2) requires notices of
appeal in a juvenile dependency proceeding to be liberally construed, and provides a
notice is sufficient if it identifies a particular judgment or order being appealed. That rule
is intended for use in cases of ambiguity and cannot be applied where there is a clear
intention to appeal from one of two separately appealable judgments or orders. (J.F.,
supra, at p. 76.) In other words, the policy of liberal construction does not apply if the
notice of appeal is so specific it cannot be read as reaching a judgment or order not
mentioned in the notice. (Id., at pp. 78-79.)
Here, page one of mother’s form notice of appeal, signed by trial counsel, states
her appeal is from the findings and orders of the court, described as: “4/4/24 [¶]
Termination of Parental Rights.”
Item 7 on the page two requires the person preparing the form to “check all [the
boxes] that apply.” The only item 7 boxes checked in mother’s notice are in item 7c.,
which show she is appealing an April 4, 2024, section 366.26 order terminating parental
rights. Left blank are the item 7 options designed to permit the preparer to list “[o]ther
appealable orders relating to dependency” or simply “other” (items 7e. and 7h.). There is
no mention of the section 388 petition anywhere in the notice.
In view of the notice’s specification that the appeal is from “Termination of
Parental Rights” on April 4, 2024, and the complete absence of any mention of the denial
of the section 388 petition, we find the notice presents a clear and unmistakable intent to
appeal only the order terminating parental rights. (J.F., supra, 39 Cal.5th at pp. 78-79.)
Accordingly, we lack jurisdiction to review the order on mother’s petition. (Id., at p. 79.)
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We note that, even if we had jurisdiction to consider the denial of the petition,
mother would not prevail. Subdivision (a)(1) of section 388 provides in relevant part that
a parent of a child who is a dependent of the juvenile court may, upon grounds of
changed circumstances, petition the court to change, modify or set aside a prior order of
the court if to do so would be in the child’s best interests. Even if we were to assume her
averment in the petition of successfully maintained employment and housing signaled
that she had severed her relationship with the father, her evidence of recent sobriety
reflects changing, not changed circumstances.
Parents with a longstanding substance abuse problem severe enough to cause them
to be unable to provide adequate care for a child cannot show changed circumstances
within the meaning of section 388 by a showing of recent sobriety and participation in a
treatment program. (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.) Demonstration
of an extended period of sobriety is crucial to establish changed circumstances in cases of
parents who have not been able to remain substance free even when pregnant or when
faced with the loss of their children.
Here, the record amply demonstrates that mother’s drug issues are longstanding
and entrenched, and that she did not stop using when pregnant or even after having her
parental rights terminated. In November 2019, R.H. came to the Department's attention
because mother and baby girl S. tested positive for methamphetamine. Reunification
efforts as to baby girl S. were not successful, and parental rights were terminated. Three
years later, in November 2022, after parental rights had been terminated as to baby girl S.
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and reunification services had been bypassed in R.H.’s case, mother and baby girl A.
tested positive for methamphetamine and amphetamine when baby girl A was born.
It appears from documents attached to mother’s petition that she made an attempt
to address her drug abuse problem between October 2022 and April 2023, including a
laboratory result showing a February 2023 negative test. She also attached a typed list of
unknown origin stating she had tested negative several times between October 2022 and
February 2023, but did not mention she had tested positive for methamphetamine and
amphetamine in November 2022 when baby girl A. was born. While we commend
mother for her efforts to address the circumstances leading to R.H. being removed from
parental care, her petition at best suggests her circumstances were changing, not that they
had changed.
2. The Parent-Child Exception to Termination of Parental Rights
Mother argues reversal of the order terminating parental rights is called for
because she had met her burden of proof to satisfy the requirements of the beneficial
parental relationship exception, but the juvenile court failed to conduct a proper analysis
of facts relating to the exception. We are not persuaded.
Where, as here, family reunification efforts have failed and the court has found the
child is likely to be adopted, the juvenile court is required to terminate parental rights
unless the child comes within one of the exceptions to termination set forth in subdivision
(c) of section 366.26. (In re Caden C. (2021) 11 Cal.5th 614, 630-631 (Caden C.).)
One of those exceptions permits the selection of a permanent plan other than
adoption if the parent has established three elements by a preponderance of evidence:
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(i) the parent maintained regular visitation and contact with the child; (ii) the child has,
and would benefit from continuing, a substantial, positive, emotional attachment to the
parent; and (iii) the detriment the child would suffer if the relationship with the parent
was terminated outweighs the benefits afforded the child by having an adoptive home.
(§ 366.26, subd. (c)(1)(B)(i); Caden C., supra, 11 Cal.5th at pp. 636-637.)
Here, the court found mother had established the first two elements (visits and a
beneficial, positive relationship) but had not shown the level of detriment to R.H. needed
to satisfy the third element. A juvenile court’s ruling on the third element is reviewed for
abuse of discretion and the decision will not be disturbed absent a determination that the
decision exceeded the bounds of reason. (Caden C., supra, 11 Cal.5th at p. 641; In re
I.E. (2023) 91 Cal.App.5th 683, 691 (I.E.).) A court abuses its discretion when it makes
an arbitrary, capricious, or patently absurd determination. (Caden C., at p. 641.) The
reviewing court views the evidence in the light most favorable to the trial court’s
decision, giving the prevailing party the benefit of every reasonable inference and
resolving all conflicts in support of the order. (I.E., supra, at p. 691.)
R.H. was three years old when the dependency proceedings were initiated in
December 2019 and was not taken into custody until the family was located 31 months
later in July 2022. It is unknown whether he remained with his mother for all of that
time, but there is no doubt a bond between them was evident during the visits that took
place between July 2022 and the April 2024 section 366.26 hearing. R.H. was sad about
not being reunified with his mother, and had been working with a therapist to address his
feelings of grief and loss.
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There is no evidence that severing R.H.’s bond with mother would cause him great
emotional harm. Although mother testified there were “instances where [R.H.] will cry”
when visits were ending and R.H. said he wanted to return to her care, there is no
mention in the record of R.H. ever asking about her or requesting to contact her in the
periods between visits. Nor did R.H. exhibit any emotional or behavioral problems at
school or in the G home, and he was excelling socially and academically. There is no
suggestion that the therapist had any concerns about terminating R.H.’s relationship with
mother.
On the other hand, the record establishes that adoption would significantly benefit
R.H. He had settled in with the G family since his arrival in July 2022 and was securely
attached to them. He would not only be raised with his youngest sibling, baby girl A.,
who was a part of the G family, but also with a boy in the home whom R.H. considered a
brother and who was the same age as R.H. R.H. said he felt safe and loved in the G’s
home, and liked being in a family. He understood the concept of adoption and, though he
said he will be sad not to see his mother, he wanted to live with the G’s.
In the circumstances presented, we cannot conclude that the juvenile court’s
decision not to apply the parent-child relationship exception to termination of mother’s
parental rights exceeded the bounds of reason. (Caden C., supra, 11 Cal.5th at p. 641;
I.E., supra, 91 Cal.App.5th at p. 692.) R.H.’s enjoyment of visits and expressions of
sadness about not living with mother do not compel a conclusion that the benefit of
continuing his relationship with her and the harm caused by severing it outweigh the
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benefits he would derive from the security and stability of an adoptive home. (Caden C.,
at pp. 633-634; In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
Mother argues reversal of the order terminating her parental rights is called for
because the court was required to, but did not, perform an in-depth analysis of the
detriment-benefit element of the parental relationship exception to termination. In
support of her claim, she cites In re Dy.P. (2022) 76 Cal.App.5th 153 (Dy.P.).
Dy.P. involved a permanent plan selection hearing that took place before the
Supreme Court issued its opinion in Caden C. (Dy.P., supra, 76 Cal.App.5th at p. 164.)
In that case, the mother testified about the quality of the parents’ relationship with their
children and the detrimental impact termination of parental rights would have on them.
(Id., at pp. 161-162.) At the conclusion of the hearing, the juvenile court said the burden
was on the parents to show applicability of “‘one of the exceptions,’” that it “‘really [did
not] have enough evidence to that fact,’” and proceeded to terminate parental rights.
(Id., at pp. 162-163.)
The appellate court reversed. (Dy.P., supra, 76 Cal.App.5th at p. 170.) It found
the mother’s testimony provided some evidentiary support for each element of the
beneficial parental relationship exception. (Id., at pp. 166-167.) It was, therefore, an
abuse of discretion under Caden C. to rule the evidence was inadequate to support any
exception rather than analyzing it in the context of the elements of the parent-child
beneficial relationship exception. (Dy.P., at pp. 166-167.)
Mother posits her case presents the very same situation as that found in Dy.P.
because the court did not properly conduct an in-depth analysis of the detriment issue and
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because it failed to mention the “contrary evidence” supporting the conclusion that
termination of parental rights would be more detrimental to the child than not being in an
adoptive home. She is mistaken.
Here, the court specifically considered and ruled on mother’s argument that the
beneficial parental relationship applied. It found she had established the first two
elements (visits and a bond) but not the third element (the detriment/benefit calculation).
Although the court is required by section 366.26, subdivision(c)(1)(D) to state its reasons
in writing or on the record when it finds termination of parental rights would be
detrimental to a child, it is not required to do so when it concludes termination would not
be detrimental. (In re A.L. (2022) 73 Cal.App.5th 1131, 1156.)
DISPOSITION
The order terminating parental rights is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
FIELDS
J.
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