Opinion
E067574
09-27-2017
In re A.T., et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. S.H., Defendant and Appellant.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWJ1200076) OPINION APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge. Affirmed. Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel.
I
INTRODUCTION
S.H. (Mother) has a history of abusing drugs and neglecting her eight-year-old son A.T. and six-year-old daughter R.T. As a result, Mother's two children were removed from her care in 2012 when A.T. was three years old and R.T. was six months old. Following five years in the dependency system, the juvenile court terminated parental rights and freed the children for adoption. On appeal, Mother argues that the juvenile court erred in denying her Welfare and Institutions Code section 388 petition and that the juvenile court erred in failing to apply the beneficial parental relationship exception to termination of parental rights. We find no error, and affirm the judgment.
R.T. (Father) is not a party to this appeal.
II
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of the Riverside County Department of Public Social Services (DPSS) on December 28, 2011, following an immediate response referral for general neglect and physical abuse of A.T. by Mother. Mother had slapped and bit then three-year-old A.T. Mother was arrested and charged with child endangerment and battery. She admitted to relapsing and using methamphetamine.
On December 30, 2011, Father obtained a restraining order against Mother and full custody of the children. Mother was allowed weekend visits. However, by January 23, 2012, Mother was homeless, and Father filed an order to modify Mother's visitation, which was denied.
On January 26, 2012, a second referral was received alleging general neglect of the children. The referral stated that Father was taking the children to a motel to visit Mother and that Mother was not supposed to have contact with the children due to an active restraining order. Father reported Mother was homeless, had no food for the children, and there was no one to supervise the children. Father was scared for the children being left in Mother's care for overnight and weekend visits. Additionally, Mother tested positive for methamphetamine.
On February 2, 2012, a petition was filed on behalf of the children pursuant to section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling) based on Mother physically abusing A.T., Mother abusing controlled substances, Mother living a transient lifestyle, and Mother's inability to provide the children with a safe and stable home environment. The children were formally detained the following day and maintained in Father's custody. Mother received services and was allowed supervised visitation as appropriate.
Father reported that Mother had previously participated in a drug treatment program, but she continued to use on occasion. Father was concerned for A.T.'s safety because Mother had no patience with him. Mother would yell and hit him when upset. Mother would easily become angry and Father did not understand why she was so upset. Mother had a five-year history of using methamphetamine. She had previously completed a substance abuse program in 2010, but she continued to use methamphetamine. Mother admitted to abusing prescription pills and alcohol while using methamphetamine. She also admitted to hitting A.T. when she was frustrated and, as a result, A.T. was scared of her.
On February 28, 2012, the juvenile court found the allegations in the petition true as amended and declared the children dependents of the court. The children were maintained in Father's custody and formally removed from Mother's care. Mother was provided with reunification services.
By the six-month review hearing, Mother was participating in her case plan and making progress. She was on summary probation as a result of the child abuse convictions. She was regularly visiting the children one time a week for two hours, and the visits were appropriate. She would initiate hugs and kisses with the children and would engage in play or read to the children. A March 8, 2012 visit was, however, cancelled due to Mother testing positive for methamphetamine. The children continued to reside with Father and appeared safe and well-cared for. The social worker therefore recommended the juvenile court terminate the dependency.
On August 28, 2012, the juvenile court maintained the children in Father's care under family maintenance status.
On February 5, 2013, a section 342 subsequent petition was filed to remove the children from Father's care. The petition alleged that Father was abusing controlled substances, allowing drug users in his home, and having an unsafe and dirty home with minimal food. The petition further alleged that Father had unresolved mental issues and that Father was on summary probation for driving under the influence. The children were removed from Father's care and placed in a foster home.
Mother was terminated from the Family Preservation Court Program on January 3, 2013, after she tested positive for methamphetamine in December 2012. She started a substance abuse program in December 2012, but her attendance was sporadic. She was discharged from the program on January 25, 2013. She tested positive for methamphetamine in both December 2012 and January 2013. She had not completed a parenting program and was homeless.
Mother's visits were supervised by Father beginning in September 2012. Father reported in November 2012 that he was no longer willing to supervise Mother's visits due to Mother yelling at A.T. during a visit. Mother became increasingly upset at the visit, and the visit was terminated. Visits were moved back to the Hemet DPSS office. Mother's December 10, 2012 and January 25, 2013 visits were cancelled due to her testing positive for methamphetamine. She cancelled a visit on January 9, 2013, without an explanation and she also failed to show up for four visits in January 2013 and three visits in February 2013. Her visitation was described as "sporadic."
On March 11, 2013, the juvenile court found the allegations in the section 342 petition true as amended and found the children came within section 300, subdivision, (b). The children were formally removed from Father's physical custody, and Father was provided with reunification services. On that same date, the juvenile court held the 12-month review hearing as to Mother. After the parties submitted on the social worker's reports, the juvenile court terminated Mother's services.
On July 8, 2013, Mother filed section 388 petitions with supporting documents requesting that reunification services be reinstated. In support, Mother alleged that she had completed an outpatient drug treatment program and a parenting program, she was testing negative for drugs, she was participating in an aftercare program and living in a sober living home since April 2013, and she had completed 16 sessions of individual therapy.
The juvenile court set a hearing on Mother's petition. However, Mother subsequently withdrew her petitions.
Mother was in violation of her probation due to her failure to comply with the terms of her probation. She completed a 10-week parenting program, however, she failed to enroll in a 52-week domestic violence program and a child abuse class. She completed a 24-session outpatient drug program. Nonetheless, she tested positive for amphetamine and methamphetamine in July 2013.
In July 2013, Mother gave birth to a baby boy. Mother reported that the baby's father was either Father or a man who lived in Arizona. An investigation was initiated, and Mother submitted to drug testing which was positive for methamphetamine and amphetamine. The baby was detained from Mother. After the baby's father was found to be the man who lived in Arizona, the baby was returned to his father.
Mother had supervised visits with the children twice a month for one hour. Mother attended the visits in a timely manner, and interacted with the children. The children appeared to enjoy the visits. At the end of each visit, the children hugged and said goodbye to Mother. However, A.T.'s teacher reported that on the day before and/or after supervised visits, A.T. appeared anxious and had trouble listening and following directions. A.T.'s therapist reported that A.T. had been diagnosed with "Reactive Attachment Disorder and Post Traumatic Stress Disorder." A.T. did not want to visit Father.
On October 10, 2013, the juvenile court continued reunification services to Father, and a 12-month review hearing was set.
Father had completed his case plan, but was incarcerated in Riverside due to a driving under the influence charge in Arizona. He was residing in a sober living home but moved to a new residence in Riverside. He had obtained employment in December 2013 and was working full time.
On April 25, 2014, Mother filed section 388 petitions with supporting evidence, requesting reunification services and liberalized visitation. Mother alleged that she had remained sober, was living in a sober living home, had maintained consistent visitation with the children, and had completed a parenting program and individual counseling.
On May 5, 2014, following a hearing, the juvenile court granted Mother's section 388 petitions, and provided Mother with reunification services. On that same day, the juvenile court continued Father's reunification services.
Due to Father's progress, DPSS recommended the children return to Father's care under family maintenance. Mother was living in a sober living home, but in September 2014, she was terminated from the home due to testing positive for methamphetamine and drinking alcohol. She moved to a different sober living home. Mother had unsupervised visits beginning in May 2014 and overnight and weekend visits beginning in June 2014. The children had some "behavior challenges" due to constantly changing homes as a result of overnight and/or weekend visits with Mother and Father. However, after testing positive for methamphetamine and admitting to drinking alcohol in September 2014, Mother's visits were immediately returned to being supervised.
On December 2, 2014, the juvenile court terminated Mother's reunification services and the children were returned to Father's care under family maintenance services.
On January 28, 2015, a section 387 supplemental petition was filed to remove the children from Father's care. The petition alleged that Father was arrested on an outstanding warrant and was extradited to Arizona. The children were removed from Father's care and placed in foster care. The children were formally detained from Father on February 5, 2015.
Mother married a man she met at her sober living home in December 2014. She was working full time, and continued to be on probation. She was expected to complete a 52-week domestic violence program, pay a fine, and complete 20 hours of community service. She had a warrant for her arrest, however, Mother claimed that she had the warrant removed. She informed the social worker that she had completed 13 of the 52 weeks of the domestic violence program and three months of counseling. She planned to enroll again for personal development because it helped her maintain her sobriety. She visited the children once a week for two hours at a local restaurant. The children were usually happy about the visits and happy after the visits.
On June 8, 2015, DPSS dismissed the section 387 supplemental petition. The juvenile court thereafter placed the children in Father's custody on family maintenance.
On August 12, 2015, the juvenile court amended Mother's visitation to include day passes, overnight, and weekends. Mother began overnight/weekend visits with the children on October 31, 2015. The children were initially apprehensive about leaving Father's home to visit with Mother, but the children warmed up to the idea of the visitation schedule and its routine. A.T. was attending therapy to focus on his anger issues. With continued therapy and consistency in remaining in one household, A.T.'s behavior was improving. He reported that he felt safe in his father's home and that he enjoyed visiting his mother. Mother forfeited a weekend visit with the children in November when she failed to drug test before the visit. She also tested positive for amphetamine and methamphetamine on November 4, 2015.
On December 8, 2015, the juvenile court continued family maintenance services to Father.
In June 2016, DPSS reported that Mother was five months pregnant with twins. Her pregnancy was high risk, and she started prenatal care in March 2016. Mother moved into a sober living home in May 2016 during her pregnancy. She remained married, but was not living with her husband who had ongoing substance abuse issues. Mother continued to participate in community service, but was arrested in November 2015 and spent a couple of days in jail for not paying fines.
Mother continued to be drug tested prior to visitation. She failed to drug test on January 7, January 22, and April 26, 2016. She tested positive on February 5 and February 10, 2016. Mother's unsupervised visits continued until February 16, 2016, when she tested positive for methamphetamine. She subsequently had two-hour supervised visits once a week with the children. The children stated they liked visiting Mother, but there had been times where they did not see Mother for weeks. Mother also had phone visits with the children on a weekly basis.
On June 23, 2016, a section 387 petition was filed to remove the children from Father's care. The petition alleged that Father engaged in acts of domestic violence while under the influence of alcohol in the children's presence and that he was arrested on June 20, 2016, for domestic violence. At the time, Mother was having weekly visits for five hours at a time. She also had phone visits with the children two to three times per week.
On July 18, 2016, the social worker spoke with the children separately as to where they wanted to live. Both children stated they wanted to live with their former foster parents and not their parents.
On August 16, 2016, the children were moved to their previous foster parents' home. The children were very happy to be living back with their former foster parents, and the foster parents were excited to once again be caring for the children. A.T. continued to receive services to address his behavioral and emotional issues.
Mother was enrolled in individual therapy and medication monitoring. She was participating in weekly NA/AA classes, and tested negative for drugs in July 2016 and August 2016. Mother was diagnosed with anxiety disorder and major depressive disorder. Her therapist anticipated Mother would require therapy for at least six months.
On September 12, 2016, the juvenile court found the allegations in the section 387 petition true and the children were formally removed from Father's care. The court thereafter denied further services to Father, and set a section 366.26 hearing.
On October 17, 2016, the foster parents filed a request for de facto parent status. The foster parents reported that the children were a part of their family, that they loved them, and were committed to providing them with love and protection. They noted the children were "very happy" to be back "home" with them and described the day-to-day activities they do as a family. The foster parents also explained how they helped the children developmentally, emotionally, physically, and educationally. The juvenile court granted the foster parents' request for de facto parent status on October 24, 2016.
A.T.'s therapist reported that A.T. exhibited tantrums of yelling, screaming, and banging his head against the walls. He acted out when he knew he would visit Mother. A.T. did not want to visit Mother sometimes. A.T. experienced loss and "badly" missed his father, who had moved to Ohio. A.T. had a hard time trusting adults, which may have been due to him being removed so many times and no one telling him the truth about his placement and if he would have to move again. A.T. was upset, confused, and scared due to his history and his therapist was working with him to " 'talk it out' as opposed to acting his emotions out." A.T.'s behaviors were slowly improving and his therapist believed that once A.T. knew where he would be permanently placed, he would be able to better deal with his emotions and not be confused.
Mother visited the children consistently twice a month unsupervised for two hours. She also called the children twice a month. Mother purchased a van that allowed her to take the children to different places when she had her visits. Mother planned to move to a different shelter facility in late November 2016. After Mother moved to the new facility, Mother's visits occurred at the park and local restaurants. She also visited the children for Halloween and took the children to a nearby church that was handing out candy. The visits were reported as "fine," but there were times when A.T. was anxious before his visits with Mother. In addition, Mother had told A.T. that he could have a bed in her shelter facility, resulting in A.T. being nervous and anxious. Once the social worker spoke to Mother about her conversation with A.T., Mother corrected her behavior and the children were more at ease with visiting Mother.
Meanwhile, the foster parents desired to adopt the children and provide them with love, stability, and security. The foster parents had known the children since February 2013 and had been providing them with their everyday needs on a regular basis. The children and the foster parents had formed a reciprocal bond. The children sought the foster parents out for attention and comfort and referred to them as " 'Mommy' " and " 'Daddy.' " The foster parents had provided the children with a stable home where their emotional, educational, and physical needs were being met. The children were flourishing in their foster parents' home and wanted to be adopted by their foster parents.
On December 21, 2016, Mother filed section 388 petitions with supporting evidence, requesting family maintenance services or reunification services. She requested that the section 366.26 hearing be vacated. Mother asserted she gave birth to twins in September 2016 and had maintained them in her care after "CPS" concluded there were no current risk factors. Mother also alleged she excelled in her sober living home, and had space for the children to reside with her. She further stated that she tested negative for drugs and attended therapy and that she continued to have unsupervised visits with the children with no safety concerns. As to best interests of the children, Mother asserted that she had turned her life around, was stable and clean, was a nurturing mother to her newborn twins, and she continued to have positive unsupervised visits with the children. She alleged that it would be in the children's best interests to reunify with their mother rather than be adopted by strangers.
DPSS filed a response to Mother's section 388 petitions. The social worker reported that the letter attached to Mother's section 388 petitions from the House of Decisions was from Mother's prior sober living home and that Mother no longer resided at the House of Decisions and had moved three times since leaving the sober living facility. The social worker opined Mother's living situation was not stable enough to have the children returned to her care. Mother was asked to leave the House of Decisions due to not following the rules concerning the use of her van. After leaving the home, she obtained a voucher from CalWorks and resided at a Motel 6. She moved into another sober living home on December 3, 2016, however she left that facility on December 12, 2016, due to complaints from other residents about her twins crying all night. Mother felt "uncomfortable and attacked" at that sober living home. Mother reported that she needed help with the twins, that her husband would be able to assist her in caring for them, and that her husband was able to watch the twins so she could look for work. She moved into a sober living home in Banning where her husband resided. The social worker informed Mother that her husband had been arrested at the end of November 2016 on a burglary charge. Despite knowing this information, Mother decided she wanted to reunify with her husband, stating the twins needed their father. Mother resided in one room along with her husband and twins. The house managers informed the social worker that the mother was able to move into a larger room if necessary to accommodate A.T. and R.T. Based on Mother's past history, her unstable living situation, and the attachments the children had with their foster parents, the social worker recommended the juvenile court deny Mother's section 388 petitions.
Following a hearing on January 10, 2017, the juvenile court denied Mother's section 388 petitions. The court noted that Mother's circumstances were only changing and had not changed. The court stated that Mother was clean and sober and gave birth to twins who remained in her care, however, Mother's living situation continued to be unstable. The court also noted that Mother had recently moved from Riverside to Hemet to Banning, and that this kind of disruption and instability was not in the children's best interest. The court further stated that Mother's circumstances had not changed in terms of stability and housing as well as in her ability to provide a safe, stable, and consistent home. The court expressed concern Mother had moved in with the father of her twins, who had recently been arrested for burglary. The court found it was not in the children's best interest to grant the section 388 petition.
The section 366.26 hearing was held on January 10 and 20, 2017. The children provided stipulated testimony. They testified that they visited Mother a couple of times a month, and they went to a pizza place or Burger King. At visits, they played games and colored. They talked to Mother on the phone as well. They liked visiting Mother and their baby brothers, and the children would be sad if they did not see their siblings anymore. The children's attorney argued that no exception to the termination of parental rights applied and that the children were very bonded to their foster parents and wanted to be adopted by their foster parents. Mother's counsel argued that the parent-child relationship exception applied and offered stipulated testimony from Mother. Mother testified that she loved the children very much and that she had not missed a visit in at least a year. Mother further stated that she had purchased a bigger van to take all of her children to places for visits, that she always called on time for her phone visits, and that she brought the twins to every visit so the children could develop a relationship with them. She also testified that she had been sober since February 2016.
The juvenile court noted that Mother's ongoing visitation with the children had been a constant source of upheaval and unpredictability in the lives of the children, resulting in significant emotional distress for A.T. The court also stated that the children made it clear they enjoyed visiting Mother but they wanted to live with their caretakers. The court recognized that Mother never had significant, sustained periods of unsupervised visitation with the children, noting "While mother has had regular visitation, it has not been consistent and can only be described as a source of recurrent disappointment and emotional distress." The court referred to Mother as a "fun play date" and found the parental beneficial relationship exception to adoption did not apply. The court thereafter found the children adoptable and terminated parental rights.
On January 20, 2017, Mother filed a notice of appeal from the January 20, 2017 order terminating her parental rights. She did not check the box that stated "Other appealable orders relating to dependency."
We liberally construe Mother's notice of appeal to encompass the separately appealable order denying her section 388 petitions. (In re Madison W. (2006) 141 Cal.App.4th 1447, 1451 [appellate court would liberally construe a parent's notice of appeal from an order terminating parental rights to encompass an order denying the parent's section 388 petition, provided the order on the section 388 petition was made within 60 days of the date the notice of appeal was filed].) Here, the order denying Mother's section 388 petitions was made 10 days before the order terminating her parental rights and both orders were made within 60 days of the date Mother filed her notice of appeal. For the reasons discussed in In re Madison W., we liberally construe the notice of appeal as encompassing the order denying Mother's section 388 petitions.
III
DISCUSSION
A. Denial of Section 388 Petition
Mother argues the juvenile court abused its discretion in denying her section 388 petitions because her circumstances had "significantly changed" and it was in the children's best interest to reunify with their mother. We disagree.
Under section 388, a juvenile court order may be changed or set aside "if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child." (In re Zachary G. (1999) 77 Ca1.App.4th 799, 806.) "The parent bears the burden to show both a legitimate change of circumstances and that undoing the prior order would be in the best interest of the child. [Citation.] Generally, the petitioner must show by a preponderance of the evidence that the child's welfare requires the modification sought. [Citation.]" (In re A.A. (2012) 203 Cal.App.4th 597, 611-612.) "In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. [Citation.]" (In re J.P. (2014) 229 Cal.App.4th 108, 127.)
" 'The petition is addressed to the sound discretion of the juvenile court, and its decision will not be overturned on appeal in the absence of a clear abuse of discretion.' " (In re J.T. (2014) 228 Cal.App.4th 953, 965.) We will not disturb the juvenile court's decision unless the juvenile court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. (In re Angel B. (2002) 97 Cal.App.4th 454, 460.) "It is rare that the denial of a section 388 motion merits reversal as an abuse of discretion . . . ." (In re Kimberly F. (1997) 56 Ca1.App.4th 519, 522 (Kimberly F.).)
In this case, the juvenile court correctly found that Mother's circumstances had not changed but were in the process of changing. The evidence shows that Mother still had not obtained stable housing or that she could provide stability and security to the children. After being asked to leave her prior sober living home due to failing to follow the rules, Mother had moved three times. First, she obtained a voucher from CalWorks and resided at a Motel 6. Then, she moved into another sober living home on December 3, 2016. However she left that facility nine days later on December 12, 2016, purportedly due to complaints from other residents about her twins crying all night. Finally, she moved into another sober living home in Banning where her husband, who had recently been arrested for burglary, resided. Despite knowing her husband had recently been arrested and reporting to the social worker over two months earlier that she wanted to keep her distance from her husband so she could work on her own sobriety, Mother decided she wanted to reunify with her husband. Moreover, while Mother is to be commended for having begun the process of turning her life around, as of the time of the juvenile court's ruling, Mother had maintained her sobriety for approximately six to seven months in the confines of a structured setting. Although Mother had been doing well within the confines of her program and sober living home, there was no evidence that she could remain sober outside of such structure or provide security and stability for four young children.
Mother tested positive for methamphetamine in February 2016, and negative in July and August 2016. It is unknown whether Mother tested negative or positive in June 2016. She filed her most recent section 388 petitions in December 2016, and a hearing on her petitions was held on January 10, 2017. --------
While section 388 requires a parent to plead a "change of circumstance," evidence must show that there has actually been a change and that the parent is not merely in either initial stages of accomplishing the goals of reunification or in a process of changing which may derail permanency for a child. (In re Casey D. (1999) 70 Cal.App.4th 38, 47 ["A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child's best interests."].) Any less of a requirement would frustrate both the common meaning of the language used in section 388 and the goal of the child dependency statutory scheme. Even a showing of great effort to make considerable improvements will not necessarily be persuasive at a section 388 hearing where a parent's prior circumstances demonstrate an extensive history of drug use and prior failures to reunify with his or her children. (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081-1082.) In the present matter, the juvenile court's determination that Mother had demonstrated only changing, not changed, circumstances did not exceed the bounds of reason.
Moreover, Mother failed to show that granting her section 388 petitions and placing the children in her care on family maintenance or, in the alternative, providing her with reunification services was in the best interests of the children.
"In any custody determination, a primary consideration in determining the child's best interests is the goal of assuring stability and continuity." (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) "After the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point, 'the focus shifts to the needs of the child for permanency and stability' [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. [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." (Ibid.)
At the time Mother filed her section 388 petitions, the children's interest in stability was the juvenile court's foremost concern, outweighing any interest in reunification. The prospect of allowing Mother reunification services or family maintenance services to see if Mother would and could do what she was required to do to regain custody would not have promoted stability for the children, who already had been in the dependency system for over four years, and thus would not have promoted the children's best interest. (In re Angel B., supra, 97 Cal.App.4th at p. 464.) A.T. was three years old and R.T. was six months old when they were removed from Mother's care in February 2012. By the time Mother filed her recent section 388 petitions in December 2016, the children had gone through at least five different placement changes and they needed stability, structure, and consistency. Due to a lack of stability and consistency, the children were confused and required therapy. A.T. exhibited behavioral and emotional trauma and expressed fear in having to be moved once again to another home. R.T. also expressed concern about having to leave her foster parents again. Granting family maintenance services or reunification services to Mother would only prolong the children's adoption into a stable and loving home.
The children were in a stable and loving home with their foster parents. The children were placed with the foster parents on August 16, 2016. The children were previously placed with them for 28 months before the children were reunified with their father. The foster parents had known the children since February 2013, and the children and the foster parents had a reciprocal bond and attachment. The children had known the foster family for most of their short lives and were comfortable in their care. The foster parents provided the children with emotional, educational, and physical needs. Indeed, the foster parents had been providing the children with their everyday parental needs on a regular basis. The foster parents desired to adopt the children and also provide them with love, stability, and security. The children sought the foster parents out for attention and comfort and referred to them as " 'Mommy' " and " 'Daddy.' " The children were flourishing in their foster parents' home and wanted to be adopted by their foster parents. Delaying the children's adoption in the hopes of Mother achieving reunification was not in the children's best interest.
Mother asserts that the best interests of the children can be determined by factors set out in Kimberly F., supra, 56 Cal.App.4th 519. The Kimberly F. court, after rejecting the juvenile court's comparison of the biological parent's household with that of the adoptive parents as the test for determining the child's best interest, identified three factors, not meant to be exclusive, that juvenile courts should consider in assessing the issue of the child's best interest: (1) the seriousness of the problem that led to dependency and the reason the problem had not been resolved by the time of the final review; (2) the strength of the relative bonds between the child to both the child's parent and the child's caretakers and the length of time the child has been in the dependency system in relation to the parental bond; and (3) the degree to which the problem that led to the dependency may be easily removed or ameliorated, and the degree to which it actually has been. (Id. at pp. 530-532.)
However, Kimberly F. has been criticized for its focus on the interests of the parent. The Kimberly F. factors conflict with the Supreme Court's holding in Stephanie M. that stability and continuity are the primary considerations in determining a child's best interest in the context of placement. (Stephanie M., supra, 7 Cal.4th at p. 317.) Furthermore, Kimberly F. also fails to take into account our Supreme Court's analysis in Stephanie M. of the child's best interest once reunification efforts have failed. Moreover, the same appellate court that decided Kimberly F. declined to apply the Kimberly F. factors "if for no other reason than they do not take into account the Supreme Court's analysis in Stephanie M., applicable after reunification efforts have been terminated." (In re J.C. (2014) 226 Cal.App.4th 503, 527 (J.C.).) The J.C. court explained, "[t]o understand the element of best interests in the context of a 388 petition filed, as in this case, on the eve of the .26 hearing, we turn to the Supreme Court's language in Stephanie M., supra, 7 Cal.4th 295 . . . ." (J.C., at p. 526.) The court instead followed the direction of our Supreme Court, "holding that after reunification services have terminated, a parent's petition for either an order returning custody or reopening reunification efforts must establish how such a change will advance the child's need for permanency and stability." (Id. at p. 527.)
On this record, Mother did not establish that the children's need for permanency and stability would be advanced by reunification efforts. It is important to keep in mind that, where, as here, the juvenile court's ruling is against the party who has the burden of proof, it is extremely difficult for Mother to prevail on appeal by arguing the evidence compels a ruling in her favor. Unless the juvenile court makes specific findings of fact in favor of the moving party, we presume the juvenile court found Mother's evidence lacked sufficient weight and credibility to carry the burden of proof. (See Rodney F. v. Karen M. (1998) 61 Cal.App.4th 233, 241.)
Mother also asserts the juvenile court based its decision "largely due to the length of her foster placement," and suggests the court denied her petitions due to the length of time she had already received services. This assertion is not supported by the record. The court did not deny the petitions based on Mother already receiving a maximum amount of services. Additionally, the court did not engage in a "simplistic comparison" between Mother's household and the foster parents' household as Mother claims. Instead, the court focused on Mother's continuous lack of stability and the upheaval her instability would cause the children.
Mother further argues that the presumption favoring natural parents supported her request for six more months of services. However, " '[t]he presumption favoring natural parents by itself does not satisfy the best interests prong of section 388. [Citation.]' " (In re Jackson W. (2010) 184 Cal.App.4th 247, 260.) "At this point in these dependency proceedings, the overwhelming consideration of both the juvenile court and of this court must be the minors' need for stability, continuity, and permanency. [Citations.]" (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1507.)
It is not in the children's best interest for permanence to be delayed for an unknown or indefinite period of time, with no certainty or even likelihood Mother could progress to the point of obtaining custody of the children. The juvenile court did not abuse its discretion in denying Mother's section 388 petitions.
B. Beneficial Parental Relationship Exception
Mother contends the juvenile court erred in finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A), did not apply to preclude the termination of parental rights. Specifically, she asserts it was detrimental to the children to terminate her parental rights because the children knew her and would benefit from continuing their relationship with her. She believes a reversal is required to implement a plan of legal guardianship and to ensure continued visitation between her and the children. We disagree.
After reunification services are denied or terminated, " 'the focus shifts to the needs of the child for permanency and stability.' " (In re Celine R. (2003) 31 Cal.4th 45, 52 (Celine R.).) " 'Adoption is the Legislature's first choice because it gives the child the best chance at [a full] emotional commitment from a responsible caretaker.' " (Celine R., at p. 53; see § 366.26, subd. (c)(1).) " 'Guardianship, while a more stable placement than foster care, is not irrevocable and thus falls short of the secure and permanent future the Legislature had in mind for the dependent child.' " (Celine R., at p. 53.) A statutory exception to the general rule requiring the court to choose adoption exists where "[t]he court finds a compelling reason for determining that termination would be detrimental to the child" (§ 366.26, subd. (c)(1)(B)) because "[t]he 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).)
" 'To trigger the application of the parental relationship exception, the parent must show the parent-child relationship is sufficiently strong that the child would suffer detriment from its termination.' [Citation.] A beneficial relationship 'is one that "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 re Marcelo B. (2012) 209 Cal.App.4th 635, 643.) The nature of the relationship between the parent and child is key in determining the existence of a beneficial relationship; it is not sufficient to show that the child derives some benefit from the relationship or shares some " 'emotional bond' " with the parent. (In re K.P. (2012) 203 Cal.App.4th 614, 621 (K.P.).) "To overcome the preference for adoption and avoid termination of the natural parent's rights, the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed." (In re Angel B., supra, 97 Cal.App.4th at p. 466.) In other words, the parent must show he or she occupies a " ' "parental role" ' in the child's life." (K.P., at p. 621.)
The parent has the burden of proving the statutory exception applies. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 (Bailey J.).) The parent must show both that a beneficial parental relationship exists and that severing that relationship would result in great harm to the child. (Ibid.) A juvenile court's finding that the beneficial parental relationship exception does not apply is reviewed in part under the substantial evidence standard and in part for abuse of discretion. The factual finding, i.e., whether a beneficial parental relationship exists, is reviewed for substantial evidence, while the court's determination that the relationship does or does not constitute a "compelling reason" (Celine R., supra, 31 Cal.4th at p. 53) for finding that termination of parental rights would be detrimental is reviewed for abuse of discretion. (Bailey J., at pp. 1314-1315; K.P., supra, 203 Cal.App.4th at p. 621.) A juvenile court's ruling on whether there is a " 'compelling reason' " is reviewed for abuse of discretion because the court must "determine the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and . . . weigh that against the benefit to the child of adoption." (Bailey J., at p. 1315, italics omitted.) More specifically, a challenge to a court's failure to find a beneficial relationship amounts to a contention that the "undisputed facts lead to only one conclusion." (In re I. W. (2009) 180 Cal.App.4th 1517, 1529.) Thus, unless the undisputed facts establish the existence of a beneficial parental relationship, a substantial evidence challenge to this component of the juvenile court's determination cannot succeed. (Bailey J., at p. 1314.)
In this case, assuming, without deciding, Mother maintained regular visitation with the children, the juvenile court could reasonably find, based on the evidence, that the well-being the children gained from their relationship with Mother did not outweigh the well-being they would gain from being adopted. Although the children loved their mother, liked to visit her, and would be sad if visits ended, both children stated that they wanted to be adopted by their foster parents. Both children wanted to continue living with their foster parents. They felt happy, comfortable, and safe with their foster parents. By contrast, there is no evidence to suggest Mother played a parental role in the children's lives. The children were detained from Mother's custody in February 2012, almost five years prior to the section 366.26 hearing, and she had never regained custody of the children. While there was evidence of some bonding between the children and Mother, it was insufficient to outweigh the benefits of finally providing the children with permanency and stability.
Furthermore, there was no evidence that the children would be harmed, much less " 'greatly harmed,' " by termination of parental rights. (In re B.D. (2008) 159 Cal.App.4th 1218, 1234-1235 ["When applying the beneficial parent-child relationship exception, the court balances the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child. If severing the existing parental 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.' [Citation.]" Italics added.].) There was no evidence in the record that the children cried at the end of visits or that they desired to stay with Mother or were otherwise emotionally upset in not being able to visit Mother. Rather, the evidence shows that A.T. was anxious before and after his visits with Mother. Thus, there was minimal positive impact on the children regarding continued contact with Mother.
Moreover, while the children loved Mother and liked visiting her, as previously noted, there is also substantial evidence supporting a reasonable conclusion that the children would gain a greater benefit from being placed in a permanent adoptive home. As the record reveals, Mother simply did not meet her burden to show that the bond between her and the children was so strong and beneficial to the children that it outweighed the benefit the children would receive from having a stable, permanent adoptive home. The children have been shuffled between five placements since 2012. A.T. and R.T. were merely three years old and six months old, respectively, when they were removed from Mother's custody. The children urgently required permanence and stability. The children's foster parents, whom they have known since February 2013, desired to adopt the children and provide them with the stability and security the children required. In addition, the children and the foster parents had a mutual, loving bond. The children were flourishing in their foster parents' home and wanted to be adopted by their foster parents. The record does not support a finding that Mother's relationship with the children outweighs the benefit and stability the children would derive from adoption.
Mother relies on In re S.B. (2008) 164 Cal.App.4th 289 (S.B.). In S.B., a three-year-old child was removed from the custody of her father who had been her primary caregiver. The father immediately acknowledged his drug use was untenable and fully complied with his case plan, remained drug free, and regularly visited his daughter three days a week. (Id. at pp. 293, 295, 298.) Even after a year apart, when the visits ended, the child continued to become upset and wanted to leave with her father. (Id. at p. 298.) The appellate court reversed the termination of parental rights, finding substantial evidence to support application of the section 366.26, subdivision (c)(1)(B)(i) exception on the basis of an emotionally significant relationship arising from the frequent and loving visits between parent and child. (S.B., at pp. 298-299.)
Since its publication, S.B. has been subject to considerable criticism, particularly for its suggestion the exception applies if the child will merely "derive[] some measure of benefit" from the parental relationship. (S.B., supra, 164 Cal.App.4th at p. 301.) In Jason J. (2009) 175 Cal.App.4th 922, at page 937, the same court that decided S.B. cautioned: "The S.B. opinion must be viewed in light of its particular facts. It does not, of course, stand for the proposition that a termination order is subject to reversal whenever there is 'some measure of benefit' in continued contact between parent and child." In In re C.F. (2011) 193 Cal.App.4th 549, the same court once again emphasized that S.B. must be "confined to its extraordinary facts. [S.B.] does not support the proposition a parent may establish the parent-child beneficial relationship exception by merely showing the child derives some measure of benefit from maintaining parental contact." (Id. at pp. 558-559.)
In any event, unlike S.B.'s father, who had "complied with 'every aspect' of his case plan," Mother here did not always maintain her sobriety and was unable to maintain stable housing. (S.B., supra, 164 Cal.App.4th at p. 298.) Mother had not demonstrated an ability to provide the children, over the long term, with a stable, safe, and loving home environment. Further, there was no evidence in the record before us that the children would suffer detriment if parental rights were terminated, unlike the daughter in S.B. The children did not display the depth of, if any, emotional attachment to Mother that S.B. displayed to her father. Moreover, while Mother was loving towards the children during visits, unlike the father in S.B., there was no evidence to show Mother played a parental role in the children's lives. Accordingly, the juvenile court had ample evidentiary support in finding there was no beneficial parental relationship sufficient to overcome the statutory preference for adoption.
Mother also asserts that a legal guardianship would protect the parent-child relationship while also providing the children with stability. She relies on In re Brandon C. (1999) 71 Cal.App.4th 1530 (Brandon C.), where the juvenile court placed twin boys in a long-term guardianship with their paternal grandmother, with whom the boys had been living since they were less than one year old. (Id. at pp. 1532-1533.) At the section 366.26 hearing, the grandmother told the court that the boys had a good relationship with their mother, and the grandmother felt that the relationship should continue. (Brandon C., at p. 1533.) The court selected guardianship over adoption as the boys' permanent plan, reasoning that it was in the best interest of the boys to maintain their relationship with their mother. (Ibid.)
The Los Angeles County Department of Children and Family Services appealed, claiming insufficient evidence supported the juvenile court's finding that termination of parental rights would be detrimental to the boys. (Brandon C., supra, 71 Cal.App.4th at pp. 1532-1533.) The Brandon C. court simply held that substantial evidence supported the juvenile court's determination that the parental benefit exception applied, because the mother had consistently visited the boys, and the boys had "a substantial, positive emotional attachment" with the mother. (Id. at pp. 1533-1535.) The court noted that it was "not troubled by the [juvenile] court's reference to mother being able to provide a 'safety valve in the future, if need be,' " or additional security for the children in the event the grandmother became unable to care for them. (Id. at p. 1538.)
Mother argues that here, as in Brandon C., the juvenile court should have selected guardianship over adoption as the children's permanent plan. We disagree. Unlike the twin boys in Brandon C., the children here did not have "a substantial, positive emotional attachment" with Mother such that any of them would be "greatly harmed" by discontinuing the relationship. (In re Angel B., supra, 97 Cal.App.4th at p. 466, italics omitted.) And, for the reasons discussed, Mother did not meet her burden of showing that the children would benefit more from continuing their relationship with Mother than from being adopted into a permanent, stable home. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
In sum, at most, all Mother can demonstrate is "frequent and loving contact or pleasant visits," which has repeatedly been found insufficient to support application of the exception. (In re C.F., supra, 193 Cal.App.4th at p. 555.) We conclude the record supports the juvenile court's determination that the beneficial parent-child relationship exception did not apply in this case.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. FIELDS
J.