In re R.R. CA2/6

Filed 5/16/23 In re R.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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re R.R., a Person Coming 2d Juv. No. B322854
Under the Juvenile Court (Super. Ct. No. J073038)
Law. (Ventura County)
VENTURA COUNTY HUMAN
SERVICES AGENCY,
Plaintiff and Respondent,
v.
A.R.,
Defendant and Appellant.
A.R. (mother) appeals from the juvenile court’s orders
summarily denying her petition for modification and terminating
her parental rights to her seven-month-old daughter, R.R. (Welf.
& Inst. Code, §§ 388, 366.26.)1 Mother contends she made a
prima facie showing in her section 388 petition that warranted an
evidentiary hearing. She also contends the juvenile court erred
in finding that the beneficial parental relationship exception to
adoption did not apply. (§ 366.26, subd. (c)(1)(B)(i).) We affirm.
Facts and Procedural History
R.R. was born in February 2022. At the time of R.R.’s
birth, mother tested positive for fentanyl and marijuana. R.R.
also tested positive for substances. The juvenile court detained
R.R. and placed her in the home of maternal aunt after R.R. was
discharged from the hospital.
R.R. is mother’s third child to be taken into protective
custody at birth due to mother’s substance abuse and untreated
mental health issues. Mother’s two older children, E.C., born in
2015, and A.R., born in 2017, were dependents of the juvenile
court. After mother failed to reunify with them, her parental
rights were terminated, and the children were adopted in 2019.
After R.R.’s birth, Ventura County Human Services Agency
filed a new dependency action as to R.R. due to mother’s
substance abuse issues, mental health issues, and mother’s two
prior dependency cases. (§ 300, subds. (b), (j).) The detention
report indicated that, at the time of R.R.’s birth, mother reported
she had no prenatal care, denied any substance use or history of
substance abuse, but “was evasive and appeared high.”
The agency recommended reunification services be
bypassed for mother given her ongoing issue of substance abuse
and her failure to reunify with her two other children. The
1 All further statutory references are to the Welfare and
Institutions Code.
2
agency also reported that mother continued to deny any
substance abuse. At the combined jurisdiction and disposition
hearing, the juvenile court sustained the petition, declared R.R. a
dependent child of the juvenile court, and ordered her suitably
placed. The juvenile court also ordered reunification services
bypassed pursuant to section 361.5, subdivisions (b)(10), (b)(11),
and ordered monitored visits for mother, two times per week for
one hour. The juvenile court set the matter for a permanent
placement hearing. (§ 366.26.)
In the meantime, mother had moved in with maternal
grandmother who was providing childcare for R.R. while
maternal aunt worked. During this time, mother had regular
access to R.R. and would help maternal grandmother with the
childcare of R.R.
Prior to the contested section 366.26 hearing, mother filed a
section 388 petition requesting reunification services and
increased visitation with R.R. In support of her petition, mother
offered that she had maintained consistent visitation and
regularly helped maternal grandmother with the daily care of
R.R., including feeding and bathing R.R., changing her diapers,
and comforting her when she was fussy.
Mother also offered that she had enrolled in and completed
a drug treatment program through A New Start for Moms and
intended to participate in the program’s aftercare, was attending
Narcotics/Alcoholics Anonymous (NA/AA) meetings two to five
times per week since March 2022, and consistently tested clean.
Mother also offered that R.R. was comfortable with mother and
attached to her, and that mother had gained an understanding of
the importance of providing R.R. with a stable and drug-free
lifestyle.
3
The juvenile court summarily denied the petition without
an evidentiary hearing. The juvenile court’s order found neither
changed circumstances nor that the proposed change of order
would be in R.R.’s best interest. In a written ruling attached to
the order denying the petition, the juvenile court explained, “In
March 2022 the mother denied ever using drugs despite having
given birth to three drug-exposed infants. The mother [also]
denied ever[] being arrested on drug related offenses, even
though that was not true.”
The juvenile court also noted that, “mother’s [section 388
petition] indicates she has completed an outpatient drug
treatment program which she did not begin until [March 14,
2022]. She contends now that her sobriety date is also [March 14,
2022], without providing any explanation why, until now[,] she
has consistently denied ever using any illegal drugs.”
Further, the juvenile court found the reports attached to
the petition did not provide “qualitative information” on mother’s
progress in the drug treatment program, nor did the petition
include “any clear information regarding what mental health
services she is receiving or if she was ever evaluated for mental
health services.”
The juvenile court concluded, “[g]iven the mother’s history
of drug use, her inexplicable denial of drug use and the short
time she has allegedly remained drug free, the mother has not
made a prima face showing that there has been a change of
circumstances nor that the presumption that the child should
remain in care is overcome.”
At the contested section 366.26 hearing, mother testified
and asserted that R.R.’s adoption was precluded by the beneficial
parental relationship exception. (§ 366.26, subd. (c)(1)(B)(i).)
4
After listening to testimony and considering the evidence, the
juvenile court rejected mother’s assertion, found by clear and
convincing evidence R.R. was adoptable, and terminated parental
rights with adoption as the permanent plan.
Discussion
Summary Denial of Mother’s Section 388 Petition
Mother contends the juvenile court abused its discretion
when it summarily denied her section 388 petition without
holding an evidentiary hearing.
To be entitled to an evidentiary hearing on a section 388
petition, the parent must make a prima facie showing of (1) a
change of circumstances or new evidence, and that (2)
modification of the prior order would be in the best interests of
the minor child. (In re Ernesto R. (2014) 230 Cal.App.4th 219,
223 (Ernesto R.); In re Zachary G. (1999) 77 Cal.App.4th 799, 806;
see Cal. Rules of Court, rule 5.570(d)(1), (e).) “If the liberally
construed allegations of the petition do not show changed
circumstances such that the child's best interests will be
promoted by the proposed change of order, the dependency court
need not order a hearing.” (In re Anthony W. (2001) 87
Cal.App.4th 246, 250 (Anthony W.).) In determining whether a
parent has made a prima facie showing under section 388, we
may consider the entire factual and procedural history of the
case. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.)
We review the juvenile court's summary denial of a section
388 petition for abuse of discretion. (Anthony W., supra, 87
Cal.App.4th at p. 250.) “Under this standard of review, we will
not disturb the decision of the [juvenile] court unless the
[juvenile] court exceeded the limits of legal discretion by making
5
an arbitrary, capricious or patently absurd determination.
[Citation.]” (In re A.S. (2009) 180 Cal.App.4th 351, 358.)
Here, mother’s section 388 petition alleged her
circumstances had changed because she had maintained
consistent and regular visitation with R.R., had enrolled in and
successfully completed a drug treatment program, had been
attending NA/AA meetings two to five times per week, and had
consistently tested clean for both the agency and her drug
treatment program.
Although the petition showed mother was making efforts to
address her substance abuse issues, the juvenile court found that
mother’s petition did not provide “qualitative information” about
her progress in the drug treatment program, nor did it include
“any clear information regarding what mental health services
[mother] is receiving or if she was ever evaluated for mental
health services.” This is relevant because the sustained
allegations included not only mother’s substance abuse issues but
also her mental health issues that interfered with her ability to
care for R.R.
Nevertheless, mother’s recent sobriety, although
commendable, reflects “changing” not “changed” circumstances.
(See Ernesto R., supra, 230 Cal.App.4th at p. 223 [requiring a
“substantial change of circumstances”]; In re Kimberly F. (1997)
56 Cal.App.4th 519, 531, fn. 9 [“It is the nature of addiction that
one must be ‘clean’ for a much longer period than 120 days to
show real reform”]; In re Cliffton B. (2000) 81 Cal.App.4th 415,
423-424 [200 days of sobriety not enough]; In re Angel B. (2002)
97 Cal.App.4th 454, 463 (Angel B.) [parent’s sobriety very brief
compared to many years of addiction].)
6
Even if there were a change in circumstances, mother has
failed to show how a change in the case plan to provide her with
reunification services and increased visitation would be in R.R.’s
best interest. Mother’s petition asserted, among other things,
that reunification services and increased visits were in R.R.’s best
interest because mother maintained consistent visits with R.R.,
during those visits, mother regularly “help[ed]” maternal
grandmother with R.R.’s daily care, R.R. was comfortable with
and attached to mother, and through mother’s drug recovery
process, she had gained an understanding of the importance of
providing a “stable and drug free” lifestyle for herself and her
child.
But by the time of the section 366.26 hearing, R.R. was
seven months old and had been living in a stable, loving, and
drug-free home with maternal aunt since she was three days old.
Although mother’s visits with R.R. were consistent, they never
progressed beyond monitored visits, and there is no evidence that
mother requested additional or unsupervised visits prior to her
section 388 petition.
Given mother’s long history of substance abuse, her failure
to reunify with her two older children who were detained under
similar circumstances, and considering mother’s short period of
sobriety, the juvenile court acted well within its discretion in
denying mother’s petition without holding an evidentiary
hearing. (See Cal. Rules of Court, rule 5.570(d)(1) [juvenile court
may summarily deny section 388 petition that fails to show a
change of circumstances or new evidence that may require a
change of order].)
7
Beneficial Parental Relationship Exception
Alternatively, mother contends that the juvenile court
erred in finding the beneficial parental exception to adoption did
not apply. She also contends this court should reverse and vacate
the juvenile court’s order terminating parental rights and direct
the juvenile court to enter a permanent plan other than adoption.
As we explain below, mother’s contentions are without merit.
“‘“At a permanency plan hearing, the [juvenile] court may
order one of three alternatives: adoption, guardianship or long-
term foster care. [Citation.] If the dependent child is adoptable,
there is a strong preference for adoption over the alternative
permanency plans.” [Citation.]’” (In re Katherine J. (2022) 75
Cal.App.5th 303, 316, quoting In re B.D. (2021) 66 Cal.App.5th
1218, 1224.) If the juvenile court finds that the child is
adoptable, it must terminate parental rights unless a statutory
exception applies. (§ 366.26, subd. (c)(1).)
One exception to this rule is the parental-benefit exception,
which allows the juvenile court to avoid termination if it “finds a
compelling reason for determining that termination would be
detrimental to the child” because “[t]he 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).) To avoid termination of parental rights under this
exception, a parent “must show, by a preponderance of the
evidence, three things. [First,] [t]he parent must show regular
visitation and contact with the child . . . . [Second,] the parent
must show that the child has a substantial, positive, emotional
attachment to the parent—the kind of attachment implying that
the child would benefit from continuing the relationship. And
[third,] the parent must show that terminating that attachment
8
would be detrimental to the child even when balanced against the
countervailing benefit of a new, adoptive home. When the parent
has met that burden, the parental-benefit exception applies such
that it would not be in the best interest of the child to terminate
parental rights, and the court should select a permanent plan
other than adoption.” (In re Caden C. (2021) 11 Cal.5th 614, 636-
637 (Caden C.).)
Our review of the juvenile court’s ruling on whether the
parental-benefit exception applies incorporates two standards of
review. (Caden C., supra, 11 Cal.5th at pp. 639-641.) We apply
the substantial evidence standard to the first two elements of the
exception and abuse of discretion to the third element. (Ibid.)
Substantial Evidence Supports the Juvenile Court’s
Determination the Parental-Benefit Exception Did Not Apply
As to the first element, the juvenile court did not make an
express finding that mother maintained regular visitation with
R.R., but the record supports an implied finding that she did. For
example, the juvenile court expressly stated this was a “rather
unique situation” where mother had “access” and “contact” with
R.R., approximately three days per week, because mother lived in
the home with maternal grandmother who was the primary
childcare provider for R.R. while maternal aunt was at work.
Respondent contends that “[i]f mother met this element,
she barely did so.” Because inquiry as to this first element is
“straightforward,” that is, “just whether ‘parents visit
consistently,’” we presume the first element is met. (See Caden
C., supra, 11 Cal.5th at p. 632; § 366.26, subd. (c)(1)(B)(i).)
As to the second element, in determining whether the
“‘child would benefit from continuing the relationship,’” the focus
is on the child. (Caden C., supra, 11 Cal.5th at p. 632.)
The exception must be examined on a case-by-case basis, taking
9
into account “a slew of factors” which affect a parent/child bond
such as, “‘[t]he age of the child, the portion of the child’s life spent
in the parent’s custody, the “positive” or “negative” effect of
interaction between parent and child, and the child’s particular
needs.’” (Ibid., quoting In re Autumn H. (1994) 27 Cal.App.4th
567, 576.)
At the time of the contested section 366.26 hearing, R.R.
was seven months old, had never lived with mother, and instead,
had lived with maternal aunt since birth. Mother testified that
she had a “very good” relationship with R.R., regularly “help[ed]”
maternal grandmother with R.R.’s care, and that R.R. was
comfortable with mother and was happy to see her. But a parent
who seeks to invoke the parental-benefit exception “must do more
than demonstrate ‘frequent and loving contact[,]’ [citation] an
emotional bond with the child, or that parent and child find their
visits pleasant. [Citation.] Instead, the parent must show that he
or she occupies a ‘parental role’ in the child’s life.” (In re Derek
W. (1999) 73 Cal.App.4th 823, 827.)
While there was evidence of mother’s generally positive
interactions with R.R., the juvenile court noted there was some
concern raised by the agency regarding how much time and how
much interaction mother had with R.R. For example, one report
indicated that during a home visit in March 2022, a social worker
observed that mother “did not hold, did not see,” and “did not
interact with the child at all during [the] family time visit.”
Instead, it was maternal grandmother who tended to the child
while mother “stayed seated in the dining area eating her
breakfast.” In April 2022, during a phone call with a social
worker, mother stated that she was “leaving to be ‘far away from
Oxnard’ so [R.R.] ‘was no longer [her] problem.’”
10
This evidence undermines mother’s contention that she
occupied a parental role in R.R.’s life and their bond was
significant such that terminating the relationship would be
detrimental to R.R.
Moreover, there is no evidence that R.R. lacks an active
parent because maternal aunt has provided a loving and stable
home for R.R., has cared for her physical, social, and emotional
needs, and is committed to adopting her. Indeed, “[a] biological
parent . . . may not derail an adoption merely by showing the
child would derive some benefit from continuing a relationship
maintained during periods of visitation with the parent.
[Citation.] A child, [especially a young child such as R.R.,] . . .
should not be deprived of an adoptive parent when the natural
parent has maintained a relationship that may be beneficial to
some degree, but that does not meet the child’s need for a
parent.” (Angel B., supra, 97 Cal.App.4th at p. 466.)
Substantial evidence supports the juvenile court’s finding
that there was “not . . . [a] substantial bond established between
[mother] and [R.R.]” such that R.R. would benefit from continuing
the relationship.
No Abuse of Discretion in Ruling that Mother Failed
to Establish the Third Element of the Parental-Benefit Exception
As to the third element, “[w]hen [the juvenile court] weighs
whether termination would be detrimental, . . . the question is
just whether losing the relationship with the parent would harm
the child to an extent not outweighed, on balance, by the security
of a new, adoptive home.” (Caden C., supra, 11 Cal.5th at p. 634.)
“‘If severing the natural parent/child relationship would deprive
the child of a substantial, positive emotional attachment such
that,’ even considering the benefits of a new adoptive home,
11
termination would ‘harm[]’ the child, the court should not
terminate parental rights.” (Id. at p. 633.)
Mother’s reliance on In re E.T. (2018) 31 Cal.App.5th 68 is
misplaced. In that case, the record demonstrated that the
children, four-year-old twins, had lived almost half of their lives
with their mother and were “very tied” to her. (Id. at p. 77.)
Here, mother did not present any evidence that R.R. would
be greatly harmed by the severance of parental rights, or that the
security and stability of a new home would not outweigh the loss
of that relationship. For example, mother did not present a
bonding study or other evidence to show that termination of
parental rights would have a detrimental effect on R.R.’s life.
(See, e.g., In re Amber M. (2002) 103 Cal.App.4th 681, 689-690
[evidence showed beneficial parental relationship outweighed
benefits of adoption]; In re Jerome D. (2000) 84 Cal.App.4th 1200,
1206-1208 [same].)
We conclude substantial evidence supports the juvenile
court’s factual findings. The juvenile court did not abuse its
discretion in determining that termination of parental rights
would not be detrimental to R.R.
Disposition
The judgment (orders denying section 388 petition and
terminating parental rights) is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J. BALTODANO, J.
12
Tari L. Cody and Manuel J. Covarrubias, Judges
Superior Court County of Ventura
______________________________
Law Offices of Melissa A. Chaitin and Melissa A. Chaitin,
under appointment by the Court of Appeal, for Defendant and
Appellant.
Tiffany N. North, County Counsel, Joseph J. Randazzo,
Principal Assistant County Counsel, for Plaintiff and
Respondent.