Opinion
E081072
10-02-2023
In re T.L., a Person Coming Under the Juvenile Court Law. v. T.W., Defendant and Appellant. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant. Minh C. Tran, County Counsel, Teresa K. B. Beecham and Julie K. Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIJ1300937. Dorothy McLaughlin, Judge. Affirmed.
Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant.
Minh C. Tran, County Counsel, Teresa K. B. Beecham and Julie K. Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
FIELDS J.
I. INTRODUCTION
Defendant and appellant T.W. (Mother) is the mother of T.L., born in 2021. Mother appeals from the juvenile court orders denying her Welfare and Institutions Code section 388 petition seeking further reunification services for T.L., terminating her parental rights, and selecting adoption as T.L.'s permanent plan. (§ 366.26.) Mother claims the court erred in denying her section 388 petition and in failing to apply the parental benefit exception to the adoption preference. (§ 366.26, subd. (c)(1)(B)(i).) We affirm the challenged orders.
Undesignated statutory references are to the Welfare and Institutions Code.
II. FACTS AND PROCEDURE
A. The Initial Investigation (April 2021 to June 2021)
At the time of T.L.'s birth in 2021, Mother and T.L. tested negative for all controlled substances other than methadone, a controlled substance used to treat opioid addictions. (See People v. Tseng (2018) 30 Cal.App.5th 117, 120-121.) T.L. stayed in the neonatal intensive care unit due methadone withdrawals and a communicable disease. Mother was a "no-show" for T.L.'s discharge appointment in April 2021, but Mother came to the hospital on April 7 after the hospital contacted Mother. Mother had a history of alcohol, marijuana, and opiate use, and, according to a medical social worker, "multiple" conditions including behavioral mental health issues. Mother did not seek treatment for the communicable disease she transmitted to T.L. until the end of her pregnancy.
On April 15, 2021, plaintiff and respondent Riverside County Department of Public Social Services (DPSS) received a general neglect referral for T.L. On April 23, a social worker completed a home visit with Mother. Mother was living with T.L. in a trailer on a friend's property, and Mother had provisions for T.L. Mother denied any current substance abuse but refused to take a saliva drug test. Mother missed medical appointments for T.L. on April 9 and 27, but kept appointments on April 14, 16, and 23. T.L. was gaining weight. On April 23, T.L, had a moderate to severe diaper rash, which Mother said she would address at T.L.'s appointment that day. Mother signed a release for T.L.'s medical records. Mother reported she was receiving twice-weekly methadone treatment at a treatment center. Mother also reported being "borderline diabetic" but denied any mental health diagnoses or treatment.
At a second home visit on April 28, 2021, T.L. appeared to be well cared for, and Mother took a saliva test, which was negative for all controlled substances. Mother was then offered and accepted family preservation court services for T.L. Mother was unaware she had a medical appointment for T.L. on April 27, and she rescheduled the appointment after the social worker told her she had missed it.
At a third home visit on May 5, 2021, Mother agreed to provide a letter from the treatment center confirming her methadone treatment services. On May 5 and 12, the family preservation court was unable to reach Mother. On May 26, Mother missed a medical appointment for T.L. due to being in a car accident on May 25. T.L. was in the car with Mother but was not injured. At a fourth home visit on June 1, Mother refused to take another saliva test, saying she received regular drug tests at the treatment center. Mother agreed to provide DPSS with her test results by June 4.
As of June 8, 2021, Mother had not provided DPSS with the drug test results or the letter confirming her treatment from the treatment center, and Mother had not contacted the family preservation court. On June 8, the maternal grandmother (MGM), who was in daily contact with Mother, denied there was any reason to believe Mother was using any controlled substances.
Mother had three older children who were not in her care. Mother's parental rights to two children were terminated in December 2015, after Mother failed to regularly participate in reunification services and make substantial progress in substance abuse treatment. The MGM was caring for and supervising Mother's visits with a third child, and the MGM became the legal guardian of the third child in December 2021.
In August 2019, in a referral for Mother's third child, it was alleged that Mother did not have stable housing; Mother "bounce[d] from place to place"; and Mother used heroin, "speed," methadone, and marijuana wax. Mother allegedly left pipes on the floor, which the child, then age two, would "get into," and Mother would smoke marijuana wax while driving with the child in the car. Mother screamed and yelled at the child when the child was hungry, and physically abused the child by yanking, grabbing, and slapping her. Mother did not keep the child clean, regularly change the child's diapers, or take the child for medical treatments. Mother had two boyfriends, both heroin addicts, and Mother would leave the child for days with one of the boyfriends, who had been "in jail in the past for molesting a child." In September 2019, Mother was arrested for assaulting the boyfriend with a deadly weapon by attempting to run over the boyfriend with her vehicle. In the same incident, Mother was charged with injuring the boyfriend's 80- to 90-year-old father. Earlier referrals for Mother's two older children, in 2013 and 2014, included similar allegations of Mother's heroin use, domestic violence, poor child care, and child abuse.
B. The Section 300 Petition and Out-of-Custody Proceedings (June 2021 to July 2021)
On June 9, 2021, DPSS filed a petition alleging juvenile court jurisdiction over T.L. based on Mother's substance abuse history and criminal history, which included assault, battery, and drug-related charges, and Mother's failure to benefit from prior court-ordered services for two children, which resulted in the termination of her parental rights to those children. (§ 300, subd. (b).) The petition further alleged that the whereabouts of T.L.'s father were unknown; he was not a member of T.L.'s household; and he was unable or unwilling to care for and support T.L. (§ 300, subd. (g).) Mother provided DPSS with a phone number for the alleged father, J.L., but as of June 1, the phone number was no longer working.
In an "Out of Custody and Initial Hearing Report" filed June 9, 2021, DPSS expressed concern for T.L.'s safety and well-being if she was to be left in Mother's care without judicial and DPSS oversight. DPSS opined there was reason to believe Mother was "currently using illicit substances" based on her "extensive" substance abuse history; her failure to complete services in her previous cases; her failure to verify that she was receiving services at the treatment center; her failure to contact the family preservation court; and her pattern of missing T.L.'s medical appointments. DPSS recommended that T.L. remain in Mother's care subject to DPSS's supervision and the juvenile court's oversight. On June 17, Mother took a saliva drug test, which was negative for all substances.
At an "Out of Custody" hearing on June 24, 2021, Mother was present. The court found a prima face showing of jurisdiction had been made and adopted DPSS's recommendations, including that T.L. remain in parental custody and that Mother receive family maintenance services, including alcohol and drug testing, parenting education, substance abuse treatment, anger management, individual counseling, cooperation with a psychological evaluation for case-planning purposes, and other services "as assessed by the social worker." The jurisdiction and disposition hearing was set for July 22.
Mother did not make herself available to DPSS between June 24 and July 16, the day DPSS completed its jurisdiction and disposition report. Thus, DPSS was unable to interview Mother concerning several matters, including "family strengths," Mother's perception of her own needs, and T.L.'s medical well-being. As of July 16, it was unclear whether Mother was still living in the trailer on her friend's property, was enrolled in services, or was caring for T.L's medical needs.
On July 19, 2021, the social worker interviewed Mother by phone. At that time, Mother claimed T.L. was eligible for enrollment in the Pechanga Band of Luiseno Indians through her alleged father, J.L. Mother gave the social worker a telephone number for the Pechanga Band's director of children and family services, whom Mother claimed was T.L.'s "tribal social worker." In a phone call, the director confirmed to the worker that the alleged father was not a member of the Pechanga Band, and it not appear T.L. was eligible for enrollment.
There is no question of whether the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et. seq.) applies to the proceedings for T.L. No party claims ICWA applies.
The social worker interviewed Mother at home on July 21, 2021. Mother was still living on the property where her trailer was located, but she was living in a home on the property with her friend, the property owner. Mother had her own bedroom and provisions for T.L. The home was clean, with minimal clutter. T.L. had her "well-child" examination on July 19, and T.L. appeared healthy. Mother submitted to a saliva drug test, which was negative for all illicit substances.
Mother claimed she was still enrolled in substance abuse treatment at the treatment center; she was also receiving counseling there, and her treatment plan was "focused on getting her ready to start minimizing her methadone dosage." Mother agreed to sign a release of information, in a form provided by the treatment center, at Mother's next appointment at the center on July 22. But Mother would not sign a release form provided by the social worker, saying the form was "too vague as to what information can be shared."
Mother became emotional and upset when asked about the jurisdictional allegations. She said she had made "positive changes" and was moving on in her life, but she was being" 'judged,'" " 'attacked,'" and discriminated against based on her past choices. When asked to describe her needs, and in discussing her case plan, Mother said she should not have "an open case" and was "hesitant to understand the need to participate in services." Despite Mother's belief that she did not need to participate in any DPSS services, the July 21 home visit ameliorated the social worker's concerns about Mother's whereabouts, substance abuse, and T.L's medical needs.
At the jurisdiction and disposition hearing on July 22, 2021, Mother waived her right to contest the allegations of the section 300 petition and DPSS reports. The court sustained the allegations, ordered T.L. to remain in Mother's physical custody, and ordered Mother to participate in the services specified in her case plan. Mother was also ordered to maintain contact with, and make T.L. available to, DPSS. No services or visitation was ordered for T.L.'s alleged father, J.L.
C. The Section 387 Petition and T.L's Removal from Mother's Care (November 2021)
On November 9, 2021, DPSS filed a section 387 petition, alleging that the July 22 disposition had been ineffective because Mother had not been complying with her case plan or making T.L. available to DPSS. (§ 387.) On November 5, law enforcement officers assisted DPSS in removing T.L. from Mother's home. T.L. was placed in a confidential foster home.
In a November 9, 2021 detention report, DPSS asked the court to detain T.L. outside parental custody; order Mother to complete a psychological evaluation; submit to a hair follicle test; and sign a release of information for all case plan services. Mother had refused to meet with DPSS or make T.L. available to DPSS in September and October. On September 30, after attempting for several days to meet with Mother at her home, the social worker confronted Mother while Mother was sitting outside her home with T.L. and two individuals. Mother refused to speak privately with the worker or discuss her case plan with the worker, became "extremely volatile," and complained that the worker was violating her civil rights by showing up at her home unannounced. Mother began "raising her voice to an extremely loud degree, shaking clenched fists, and moving toward" the worker.
On October 1, 2021, Mother's phone was no longer in service. On October 6, Mother called the social worker's supervisor and, when advised she needed to meet with the worker at least once each month, Mother yelled at the supervisor, used profanities, insisted her civil rights were being violated, and argued that DPSS had no authority to come to her home to see her and T.L. On October 13, Mother agreed to meet with the worker, but no one answered the door when the worker went to Mother's home. That day, DPSS mailed a packet to Mother that included the court minute orders, Mother's case plan, and a letter detailing Mother's services and providers.
After October 15, 2021, Mother continued to ignore DPSS's voicemails and attempts to meet with her at her home. On October 19, there was a cardboard sign in the window of Mother's home, stating," 'private property, I have 27 amended rights and one full clip.'" On October 22, the worker spoke with Mother by phone regarding Mother's need to allow DPSS to see Mother and T.L. When told that the sign in the window constituted a "perceived threat," Mother laughed and said," 'everyone has a sign like that; it's no big deal.' "
Mother then agreed to meet with the social worker and her supervisor on October 26, but again, no one answered the door when the worker and supervisor went to the home on October 26. By this time, the "full clip" sign had been replaced with a new sign, "warn[ing] trespassers and others there was active audio and video surveillance" in the home. During the week of October 25 to 29, Mother would not respond to her attorney's attempts to contact her in order to arrange a home visit with DPSS. On November 3, DPSS received the packet it had mailed to Mother on October 13, marked" 'return to sender'" and" 'unable to forward.' "
On November 5, 2021, when law enforcement officers, the social worker, and her supervisor went to Mother's home to remove T.L., Mother initially would not hand T.L. to anyone. Mother argued her civil rights were being violated, DPSS had no right to take T.L., the case never should have been opened, and she was suing everyone involved. Mother eventually gave T.L. to an officer but would not provide any clothing, diapers, or other items for T.L.
At the November 10, 2021 detention hearing on the section 387 petition, the court found a prima facie showing had been made that T.L. was described in section 387 and detained T.L. outside parental custody. Mother was present; her court-appointed attorney was relieved, and new counsel was appointed. Mother filed an ICWA-20 form stating she had no Native American ancestry. The court found that ICWA did not apply; authorized weekly, two-hour, supervised visits between Mother and T.L.; and ordered Mother to complete a confidential psychological evaluation and a hair follicle test. The court further ordered Mother to sign a release of information for her plan services. The alleged father, J.L., was not elevated to presumed father status or allowed visitation.
On December 17, 2021, at the contested jurisdiction and disposition hearing on the section 387 petition, Mother was present with a newly hired private attorney. The court relieved Mother's second appointed counsel, authorized the substitution of counsel, and continued the matter to January 11, 2022, to allow Mother's new counsel to become familiar with the case.
In early January 2022, DPSS reported that, since T.L. was detained on November 11, 2021, Mother had visited T.L. at DPSS offices on November 19 and 23, and December 3. During each visit, Mother did not consistently engage with T.L. or respond to T.L.'s "babbling" and "cues." Mother submitted to a saliva test before each visit, and all test results were negative. Mother did not make herself available for an interview with DPSS before the December 17 hearing; she scheduled telephone interviews with DPSS on December 3 and December 7, but she did not answer DPSS's repeated phone calls to complete the interview.
On January 11, 2022, the court sustained the allegations of the section 387 petition, removed T.L. from parental custody, and granted Mother six months of reunification services, as specified in her case plan, which required her to complete a confidential psychological evaluation, a hair follicle test, substance abuse treatment and testing, individual counseling, and anger management. Mother agreed to sign releases of information for her services on forms provided by both DPSS and the treatment center. The court continued Mother's weekly, two-hour supervised visits but authorized DPSS to liberalize visits based on Mother's compliance with her case plan. The six-month review hearing (§ 366.21, subd. (e)) was scheduled on June 27 and, if contested, on July 11. D. The Six-month Review Period (January 2022 to July 2022)
On March 9, 2022, the court granted a motion, filed February 16, 2022, by Mother's private attorney, to be relieved as Mother's attorney of record based on an "irreparable breakdown in the attorney-client relationship." The court denied Mother's request to represent herself, explaining to Mother that was not allowed because the proceedings concerned T.L.'s interests as well as Mother's, and reappointed Mother's original attorney. In reports filed June 24 and July 8, DPSS recommended terminating Mother's reunification services and setting a section 366.26 hearing for T.L.
The June 24 report stated Mother had "recently been willing to discuss" her progress in services and her current living situation. Mother was still living in her friend's home but was planning to move back into the one-bedroom trailer she owned on the friend's property. Mother was enrolled in a ten-week parenting course, had not missed a class, and had four classes to go until she completed the course. On May 19, Mother signed a form allowing the social worker to access information regarding Mother's parenting course.
Mother reported she was still being treated with methadone and was "in the process of titrating her dosage." Mother explained that she did not enroll in an outpatient treatment program or individual counseling with DPSS-referred providers because she was receiving outpatient treatment and attending group sessions through the treatment center. She claimed the center required her to attend at least two support group sessions every month, but she was attending sessions two to three times weekly-more often than required.
On June 18, 2022, Mother provided DPSS with unspecified "information regarding her outpatient services" through the treatment center. The social worker called the center but was unable to verify Mother's participation or obtain information on how a patient could authorize a release of information. The worker asked Mother to ask the center about its records-release process and to provide a print-out of Mother's most recent drug test results from the center. Mother "turned in a document" showing she tested negative for illicit substances and positive for methadone, in random urinalysis tests conducted on November 18 and December 7, 2021, and on January 10, February 14, March 7, April 4, and May 3, 2022.
Mother did not complete a hair follicle test during the review period. Mother did not return calls from the provider seeking to arrange the test, and claimed she did not" 'get any calls'" about where to take the test. Mother also did not complete a psychological assessment. She scheduled two appointments with a DPSS-referred provider to complete her psychological assessment, but Mother did not respond to the provider's repeated phone calls to complete the assessment.
Mother claimed she was attending individual counseling sessions every other week, for one hour, through a health clinic, and that she was also seeing a psychiatrist through the clinic. The clinic confirmed to DPSS that Mother was a patient but said it could not provide more information until Mother signed a release of information.
On June 23, 2022, Mother claimed she had completed a psychological assessment through the health clinic, but she could not recall the date or the provider. Also on June 23, Mother agreed to sign releases of information "as soon as possible" for both the health clinic and the treatment center. But as of July 8, Mother had not signed either release.
Mother admitted that anger management was an unaddressed aspect of her case plan. She did not participate in an anger management course during the review period; she asked for more time to do so because she was still completing substance abuse treatment, individual counseling, and her parenting course.
During an early visit with T.L. during the review period, Mother recorded a social worker in the DPSS building without the worker's knowledge. Mother was overheard playing the recording when she was alone in the visitation room. When asked not to record DPSS employees inside the DPSS building without the employees' knowledge, Mother claimed it was her right to record T.L. during the visits, and Mother wanted to keep DPSS "accountable, as there ha[d] been a pattern of dishonesty." When told that recording DPSS employees did not build "rapport or trust," Mother said she did not trust DPSS or any of its representatives.
T.L.'s foster caregiver gave a 14-day notice for T.L.'s removal, due to Mother's "consistent complaints about the caregiver and demands that the child be moved." The caregiver felt Mother was making "unfair and unfounded" claims, namely, that the caregiver was giving T.L. rancid food, T.L.'s clothing was cutting off her circulation, and a rash on T.L's bottom was actually a burn.
On June 16, 2022, the PGM completed the Resource Family Approval ("RFA") process for T.L. to be placed with the PGM, and T.L.'s caregiver was willing to delay T.L.'s removal pending DPSS's decision to place T.L. with the PGM. DPSS reported Mother's claims about the caregiver were invalid and that Mother was making the claims "to make the RFA process [for the PGM] move along faster." As of July 8, T.L.'s placement with the PGM was pending DPSS's approval.
Mother missed only five of her weekly two-hour visits during the six-month review period; all were due to illness, including two due to T.L.'s illness. During early visits, Mother "seemed distracted and angry" and "more focused on her agitation" with DPSS than her visit with T.L. Mother "used" the visits to make claims against the caregiver that were not found be valid.
Mother's later visits were "calm and positive." Mother made no further accusations about the caregiver and did not (as far as DPSS knew) record any DPSS employees. Mother brought a tablet, clothing, and gifts for T.L. Mother was affectionate and nurturing to T.L., and T.L. appeared to feel secure in Mother's care. Mother took a saliva test before each visit; all were negative for illicit substances and positive for methadone. The MGM and PGM visited T.L. for two hours after Mother's two-hour visits.
On June 27, 2022. the court denied Mother's Marsden motion to replace her (original) appointed counsel and confirmed that the contested six-month review hearing was scheduled for July 11.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
E. The Six-month Review Hearing; Termination of Mother's Services (July 2022)
On July 11, 2022, Mother's counsel asked the court to continue the contested sixmonth review hearing for several days to allow Mother to show she had signed releases for the health clinic and the treatment center. Mother's counsel claimed Mother understood she had signed the releases.
County counsel and minor's counsel objected to any continuance, arguing Mother never signed the releases, and her claim she had done so was "facetious." County counsel argued Mother had "over one year to sign releases and do her programs. She's done nothing other than parenting. That's the only release that she's signed." Minor's counsel noted, "we are here now at the .21(e) for the same two issues" we have been dealing with since the case began in June 2021: Mother's failure to participate in her case plan and sign information releases.
The court denied Mother's request to continue the hearing, noting "the evidence overwhelmingly points to the fact [Mother] did not sign" the releases; the case had been in the same "posture" for an "extended period"; and there was no good cause for a continuance. The court proceeded with the hearing, terminated Mother's services, and set a section 366.26 hearing. Mother's visits were reduced to once monthly for one hour, supervised by DPSS.
F. The Section 366.26 Reports and Other Matters (November 2022 to March 2023) The section 366.26 hearing was continued from November 8 to
November 28, 2022, then to March 27, 2023, and trailed to March 30. After Mother's services were terminated on July 11, 2022, DPSS recommended adoption as T.L.'s permanent plan. T.L. was placed with the PGM on July 12, 2022.
In November 2022, DPSS reported T.L. was doing well in the PGM's care, and that the PGM had been supervising Mother's monthly visits. Mother attended four of five monthly visits between July 12 and November 28, and the visits were appropriate. DPSS's reports after November 28 did not address Mother's visits. In March 2023, T.L. was bonded with the PGM, and the PGM was committed to adopting T.L. T.L. was at ease with the PGM and would turn to the PGM for comfort.
On November 28, 2022, the court asked Mother, as part of its continuing duty of inquiry under ICWA, whether Mother was "aware of having any Native American ancestry." Mother said, "Yes. My daughter [(T.L.)] was actually just recently registered with the tribe this month. They gave notice to us that . . ., she's registered. She's a descendent of the Pechanga Tribe." Mother's counsel said his office would be filing "an updated ICWA-020." When the court inquired further, Mother said that T.L.'s Native American ancestry was through T.L.'s father, and that the MGM was also "Native, 49 percent." Mother said, "I believe when we got her [(the MGM's)] blood results back-I can print them out and bring them in." Mother did not recall the MGM's tribe but said the MGM was "not registered." The court ordered DPSS to "follow up with additional inquiry and noticing."
Thereafter, DPSS made further inquiries and mailed notice of the proceedings to the Pechanga Band, one other tribe, and the Bureau of Indian Affairs (BIA). Neither tribe responded to the notice. A letter from the BIA indicated that T.L. was neither a member nor eligible for membership in a federally-registered tribe. In March 2023, DPSS reported Mother had" an established history of . . . utilizing the claim of Native Ancestry prior to the termination of parental rights to interrupt the proceedings." On March 24, 2022, Mother denied having possession of the letter she spoke of at the November 28 hearing, and said the PGM likely had received the letter. The PGM denied any knowledge of the letter.
At the continued section 366.26 hearing on March 27, 2023, Mother's counsel asked the court to further continue the hearing. Mother was present by telephone; her counsel explained she had been released from a hospital emergency room earlier that day. Mother's counsel wanted to speak with Mother about filing a section 388 petition, and Mother wanted to testify on the parental benefit exception. But Mother's counsel had not been able to speak with Mother about a section 388 petition or to prepare for the hearing, despite "efforts on both of our parts to try to get in contact with each other." County counsel and minor's counsel objected to the continuance and asked the court to order Mother to testify by phone. Mother agreed she would be well enough to testify in court on March 30, and the court trailed the matter to March 30.
G. Mother' s Section 388 Petition
On March 30, 2023, Mother filed a section 388 petition, asking for six additional months of reunification services. The petition alleged Mother was "staying sober," had a "stable job," had been participating in her case plan, was consistently visiting T.L., and T.L. had a strong bond with Mother.
The petition included documents showing Mother was employed, had obtained financing for a vehicle, and had purchased provisions for T.L. Mother also adduced a certificate showing she completed her parenting course on July 14, 2022, and a "personal reference" letter, dated January 20, 2023, from "CTC Group, Opioid Use Disorder Programs."
The letter, signed by Mother's counselor, J. Jackson, stated Mother had been "enrolled in our program for over a year," had "shown an impeccable ability to selfmanage" and "achieve her treatment plan goals," and was "continuously working toward self-improvement." Mother was "involved in a medically supervised taper" of her methadone use; she was "currently dosing at 29 [milligrams] of methadone" and was "expected to continue to decrease her dose by 1/2 [milligram] every week." Mother had a "a positive attitude" and was "a joy to work with."
Lastly, Mother attached a letter she wrote to the court, describing how she had changed her life for the better. Mother noted that, aside from her medication, she and T.L. were "clean and sober" at T.L.'s birth, and Mother had not turned in a single "dirty test" to DPSS. Mother wrote that she had worked hard to stay sober and turn her life around through her substance abuse recovery program, counseling, drug testing, NA meetings, and parenting classes, all while working two jobs. Mother believed it was not in T.L.'s best interest not to be with Mother.
H. The Combined Section 388 and 366.26 Hearings
On March 30, 2023, the court held a hearing on Mother's section 388 petition in combination with the section 366.26 hearing. Mother testified in support of her petition and applying the parental benefit exception to terminating her parental rights and adoption. Mother confirmed that after her services were terminated on July 11, 2022, she continued to participate in her substance abuse treatment program with the treatment center. Since July 11, 2022, all of her random drug tests had been negative, and none of her visits with T.L. had been canceled due to the supervisor believing Mother was under the influence. Mother had been attending NA meetings every Sunday for the previous six months. On her current course, Mother expected to be off methadone in less than one year.
Mother further testified that she was continuing her individual counseling with J. Jackson. Counseling was part of Mother's "all inclusive" substance abuse program. Through her counseling, Mother had learned how to "cope properly with the situations," evaluate herself, and "make better choices moving forward." Mother completed her parenting program in July 2022 and learned "plenty," including how to nurture, communicate with, and discipline her child.
Mother admitted she had not completed a psychological assessment, taken a hair follicle test, or completed an anger management program. She pointed out that she drug-tested negative before every DPSS-supervised visit, and her individual counseling addressed anger management.
Mother said she had a good relationship with the PGM and helped provide for T.L. by buying T.L. clothing, food, diapers, gifts, and anything T.L. needed. T.L. had just turned 2 years old. Mother loved T.L. and had a strong emotional bond with her. Mother was visiting T.L. twice monthly for one to two hours, supervised by the PGM. T.L. ran to Mother upon seeing her and cried when it was time for Mother to go.
No other witnesses testified at the combined hearings. Regarding the section 388 petition, Mother's counsel argued Mother showed changed circumstances based on her continued substance abuse treatment, negative drug tests, counseling, completed parenting program, stable employment, and positive relationship with T.L. Mother was "actively engaged" in both staying sober and in "staying compliant with her mental health treatment."
County counsel and minor's counsel argued the petition should be denied. Minor's counsel noted Mother did not complete her case plan. Although Mother had been "consistent with counseling," Mother had not addressed anger management or "the mental health component" of her case plan. Further, T.L. had been out of Mother's care for 17 months, since November 2021, and it was not in T.L.'s best interests to grant Mother additional services.
County counsel agreed and added that Mother did not sign releases of information so DPSS could determine her progress in her treatment and counseling. In addition, DPSS had not received any drug test results from Mother's program since before her services were terminated on July 11, 2022.
The court denied the petition. The court first noted it was "clear how invested [Mother] is at the moment in terms of taking care of herself and making significant changes in her life, and she's absolutely to be commended for those efforts. That cannot be easy, and it takes a lot of courage and a lot of discipline." But "[t]he issue legally for the court" was "whether there are changed circumstances and whether it would be in the child's best interest" to grant Mother further services. The court found Mother made an insufficient showing of changed circumstances "because there are significant portions of the case plan that haven't been completed or addressed." The court also ruled it was not "in the child's best interest to delay permanence," given T.L.'s age, the length of time she had been out of Mother's care, and the history of the case.
Regarding the section 366.26 portion of the combined hearings, Mother's attorney urged the court to apply the parental benefit exception to adoption, and place T.L. in a long-term guardianship, based on Mother's consistent visits, strong and loving bond with T.L., and treatment progress. County counsel and minor's counsel argued that terminating parental rights would not be detrimental to T.L., given the length of time T.L. had been out of Mother's care, and because T.L. was bonded with the PGM.
The court took the matter under submission and issued its ruling in court on April 6, 2023. The court did not expressly address the parental benefit exception, stating "based on the submitted reports and the information that's been provided to the Court, the Court will at this time adopt the findings and orders recommended by the Department and proceed with termination of parental rights." The court found, "Termination of parental rights would not be detrimental to the minor in that none of the exceptions" to adoption "are applicable in this case."
Mother timely appealed from the March 30, 2023 order denying Mother's section 388 petition, and the April 6 section 366.26 orders terminating parental rights to T.L. and selecting adoption as T.L.'s permanent plan.
III. DISCUSSION
A. Mother' s Section 388 Petition Was Properly Denied
Mother claims the juvenile court erroneously denied her section 388 petition because Mother showed (1) changed circumstances, and (2) it was in T.L.'s best interests to grant Mother additional services to allow T.L. a "last chance" to reunify with Mother. Mother claims the order denying her petition must be reversed and the matter remanded to the juvenile court with directions to grant her petition.
1. Legal Principles
Section 388 allows a parent to petition the juvenile court to change or set aside any previous juvenile court order. (§ 388, subd. (a).)" 'The petitioner has the burden of showing by a preponderance of the evidence (1) that there is new evidence or a change of circumstances and (2) that the proposed modification would be in the best interests of the child.'" (In re J.M. (2020) 50 Cal.App.5th 833, 845.)
"Section 388 provides an' "escape mechanism"' for parents facing termination of their parental rights by allowing the juvenile court to consider a legitimate change in the parent's circumstances after reunification services have been terminated." (In re Alayah J. (2017) 9 Cal.App.5th 469, 478; In re Marilyn H. (1993) 5 Cal.4th 295, 309 ["[T]he Legislature has provided the procedure pursuant to section 388 to accommodate the possibility that circumstances may change after the reunification period that may justify a change in a prior reunification order."].) "After reunification services have been terminated, there is 'a rebuttable presumption that continued foster care is in the child's best interests.' [Citations.] This presumption arises because, postreunification, 'the parents' interest in the care, custody and companionship of the child are no longer of overriding concern. [Citation.] The focus then shifts to the child's need for permanency and stability . . . .' [Citation.] The presumption is especially difficult to overcome when adoption is the permanent plan." (In re J.M., supra, 50 Cal.App.5th at p. 847.)
"A parent establishes a substantial change of circumstances for purposes of section 388 by showing that, during the period between termination of reunification services and the permanency planning hearing, he or she has resolved the previously unresolved issues supporting juvenile court jurisdiction." (In re J.M., supra, 50 Cal.App.5th at p. 846; see In re A.A. (2012) 203 Cal.App.4th 597, 611-612.) "Not every change in circumstance can justify modification of a prior order." (In re S.R. (2009) 173 Cal.App.4th 864, 870.) "The change in circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged order." (In re A.A., at p 612.) In this respect, the new evidence or change of circumstances must be material. (In re N.F. (2021) 68 Cal.App.5th 112, 120; In re Ernesto R. (2014) 230 Cal.App.4th 219, 223 [requiring a "substantial change of circumstances"].)
We review a juvenile court's denial of a section 388 petition for abuse of discretion and the court's factual findings for substantial evidence. (In re J.M., supra, 50 Cal.App.5th at p. 846; In re A.R. (2015) 235 Cal.App.4th 1102, 1116-1117.) "We may disturb the exercise of the court's discretion only when the court has made an unreasonable or arbitrary determination." (In re J.M., at p. 846.)
2. Mother Did Not Show New Evidence or Changed Circumstances
Mother claims she made a material and sufficient showing of both new evidence and changed circumstances, after her services were terminated, by continuing to participate in her substance abuse program, drug testing, and counseling; by completing her parenting course; and by working two jobs and providing for T.L. The juvenile court reasonably found, however, that this showing was insufficient to show changed circumstances, given that Mother did not complete "significant portions" of her case plan. Indeed, Mother never completed a psychological assessment or an anger management course, submitted to a hair follicle test, or signed releases of information for her treatment program and counseling. Mother agreed to do all of these things in January 2022, more than a year before she filed her petition at the time of the section 366.26 hearing on March 30, 2023.
Mother claims that, despite her failure to complete her case plan, she showed that she "resolved the previously unresolved issues which supported jurisdiction" (In re J.M., supra, 50 Cal.App.5th at p. 846), given that she never had a positive drug test; attended counseling and group sessions through her treatment program; her counseling addressed anger management; she completed her parenting course; she was attending NA meetings; and she was working two jobs to help support T.L. We disagree. Mother did not show that she had resolved her substance abuse problem or her behavioral mental health issues-two issues that supported the court's assumption of jurisdiction over T.L. in June 2021, nearly two years before the hearing on Mother's petition.
Because Mother never signed releases of information for her treatment program or her counseling, DPSS was unable to determine the quality or extent of Mother's progress in her treatment or her counseling. For example, DPSS was also unable to ascertain whether Mother was continuing to test negative for controlled substances, other than methadone, in her treatment program. A hair follicle test, if negative, would have alleviated any concern that Mother was using controlled substances between her visits with T.L. DPSS was also unable to ascertain what issues Mother was addressing in her counseling, including whether her counseling was addressing the anger management component of her case plan. It appears doubtful that Mother's counseling, as described in her counselor's January 20, 2023 letter, covered an anger management course, given that letter said nothing about Mother addressing anger management in her counseling.
Mother also did not show that she had sufficiently addressed or alleviated her behavioral mental health issues, given her consistent failure and refusal to complete the court-ordered psychological assessment and sign releases of information for her counseling records. A psychological assessment would have identified issues for Mother to address in counseling. Through most of the proceedings, Mother exhibited behavioral problems in her relations with DPSS staff, service providers, and T.L.'s foster caregiver. Mother made appointments with providers she never kept, promised to sign releases she never signed, and falsely accused T.L's foster caregiver of mistreating T.L. Mother's petition and testimony did not show she had substantially alleviated the behavioral mental health issues that supported T.L.'s dependency.
Mother argues a parent is not required to show "totally" or "completely" changed circumstances. For this proposition, she relies on this court's decision in In re Serenity S. (2020) 55 Cal.App.5th 355 (Serenity S.). There, we did not consider the order denying the father's section 388 petition, but we said we were not convinced that the trial court was correct in finding that the father hadn't established changed circumstances. (Id. at pp. 379-380.) We noted that, although the father's "developments were new, the court's determination that [the] father had established only that his circumstances were 'changing not changed,' was too cavalier given the important role section 388 petitions play in the constitutionality of California's dependency scheme." (Id. at p. 380.) Mother suggests this observation applies with equal force here. It does not. In Serenity S., we indicated the father had shown changed, not just changing, circumstances. Here, Mother did not show changed circumstances-a material change, sufficient to require the court to modify its July 11, 2022 order terminating Mother's reunification services and grant Mother an additional six months of services. (See In re A.A., supra, 203 Cal.App.4th at p. 612; In re N.F., supra, 68 Cal.App.5th at p. 120.)
3. Mother Did Not Show That Further Services Would Serve T.L.'s Best Interests
Mother also claims it was in T.L's best interests to grant Mother six additional months of services, and give T.L. a "last chance" to reunify with Mother, because Mother had a positive relationship with T.L., and T.L. was emotionally attached to Mother. Mother points out that a "standard approach" in assessing the best interest prong of a section 388 showing requires the court to examine a number of factors, including (1) the seriousness of the problem that led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent child to both parent and caregivers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it has been. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-532 (Kimberly F.).) Regarding the first of these factors, Mother acknowledges her substance abuse history and failure to comply with her case plan were "serious problems," but she argues "there was a lack of evidence that those problems continued" at the time of the section 388 hearing. We disagree. As discussed, Mother did not show she had ameliorated her substance abuse and behavioral mental health problems to a sufficient degree to warrant granting her additional reunification services for T.L.
As noted, after reunification services are terminated, the focus of the proceedings is on the child's need for permanency and stability, and the parent's interest in the care, custody, and companionship of the child "are no longer paramount." (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Marilyn H., supra, at p. 309.) The Kimberly F. factors do not"' give full consideration to this shift in focus.'" (In re J.C. (2014) 226 Cal.App.4th 503, 527.) "[A]fter 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."
Mother did not show that granting Mother additional services would advance T.L.'s need for permanency and stability. At the time of the section 388 hearing on March 30, 2023, T.L. had just turned two years old and had been out of Mother's custody for 17 months, since November 5, 2021. T.L. was bonded to the PGM, and the PGM was willing and able to adopt T.L. Given these circumstances, together with Mother's ongoing refusal to complete her case plan and sign releases for DPSS, the juvenile court reasonably determined that it was not in T.L's best interests to delay T.L's permanency by granting Mother six additional months of services.
B. The Juvenile Court Reasonably Declined to Apply the Parental Benefit Exception
Mother next claims that the juvenile court erroneously failed to apply the parental benefit exception to adoption. Again, we find no error.
1. Legal Principles
At a section 366.26 hearing, the juvenile court selects and implements a permanent plan for a dependent child. (In re C.P. (2023) 91 Cal.App.5th 145, 153.) "In order of preference the choices are: (1) terminate parental rights and order that the child be placed for adoption . . .; (2) identify adoption as the permanent placement goal and require efforts to locate an appropriate adoptive family; (3) appoint a legal guardian; or (4) order long-term foster care." (In re Celine R. (2003) 31 Cal.4th 45, 53.) If a child is adoptable, there is a strong preference for adoption over the alternative permanent plans. (In re Collin E. (2018) 25 Cal.App.5th 647, 663.)
" 'Adoption is the Legislature's first choice because it gives the child the best chance at [a full] emotional commitment from a responsible caretaker.' [Citation.] '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.'" (In re Celine R., supra, 31 Cal.4th at p. 53.)
If the court determines that a child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). (In re Collin E., supra, 25 Cal.App.5th at p. 663.) The statutory exceptions to the termination of parental rights and adoption "merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption. (In re Celine R., supra, 31 Cal.4th at p. 53.)
The parental benefit exception "is limited in scope. It applies where '[t]he court finds a compelling reason for determining that termination [of parental rights] would be detrimental to the child" because" (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.' (§ 366.26, subd. (c)(1)(B)(i).)" (In re Caden C. (2021) 11 Cal.5th 614, 631.) To establish that the parental benefit exception applies, a parent must prove three elements by a preponderance of the evidence: "(1) regular visitation and contact, and (2) a relationship, the continuation of which would benefit the child such that (3) the termination of parental rights would be detrimental to the child." (In re Caden C., at p. 631; see In re Rachel M. (2003) 113 Cal.App.4th 1289, 1295 [proof that an exception to adoption applies must be made by a preponderance of the evidence].) A substantial evidence standard of review applies to the first two elements; an abuse of discretion standard applies to the third. (In re Caden C., at p. 639.)
Mother complains that the juvenile court made no express factual findings in determining that "[germination of parental rights would not be detrimental to the minor in that none of the exceptions" to adoption applied. But section 366.26 does not require a juvenile court to make express factual findings in determining that the parental benefit exception does not apply. (See Therolf v. Superior Court (2022) 80 Cal.App.5th 308, 324 [A juvenile court is not required to make specific factual findings when its finds that the release of a deceased child's records would be detrimental to a living child; the court's detriment finding provides the appellate court with a point on which to focus its evaluation of the record.]; § 827, subd. (a)(2)(A).) The court's determination that terminating parental rights would not be detrimental to T.L. is sufficient to focus our evaluation of the evidence and our analysis of the court's ultimate determination that the exception did not apply. Mother argues, "juvenile courts are required to do more than summarily state that an exception does not apply." But none of the cases Mother cites to support this proposition support it. Rather, the cases Mother cites involve express juvenile court findings or other affirmative showings indicating that the juvenile courts considered improper factors or conducted improper analyses in determining that the parental benefit exception did not apply. (In re Katherine J. (2022) 75 Cal.App.5th 303, 319; In re D.P. (2022) 76 Cal.App.5th 153, 166; In re D.M. (2021) 71 Cal.App.5th 261, 270-271; In re J.D. (2021) 70 Cal.App.5th 833, 866-868.) Here, the record in no way indicates that the juvenile court considered improper factors, or failed to conduct the appropriate analysis, in determining that the parental benefit exception did not apply. (See In re Caden C., supra, 11 Cal.5th at pp. 631-636.)
2. Analysis
Mother claims she proved the first element of the parental benefit exception by showing she maintained regular visitation and contact with T.L. We agree. "The question is just whether 'parents visit consistently,' taking into account 'the extent permitted by court orders.'" (In re Caden C., supra, 11 Cal.5th at p. 632.) Although Mother was at times inconsistent with the PGM in scheduling her visits with T.L., the record shows Mother consistently visited T.L. to the extent she was permitted to do so by the court's visitation orders.
Mother claims she proved the second element: that she had a relationship with T.L. and T.L. would benefit from continuing the relationship. (In re Caden C., supra, 11 Cal.5th at pp. 631-632.) To prove the second element, "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." (Id. at p. 636.) A parent-child relationship may be "shaped by a slew of factors, 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.'" (Id. at p. 632.) Mother proved the second element. T.L. was comfortable with Mother during visits. Mother testified that, during later visits, T.L. ran to Mother at the beginning of the visits and cried when Mother had to leave. Thus, Mother proved the second element; T.L. had a substantial, positive emotional attachment to Mother, and T.L. would benefit from continuing her relationship with Mother.
Mother, however, did not prove the third element of the parental benefit exception. She did not show that terminating parental rights to T.L., and T.L.'s relationship with Mother, would be detrimental to T.L. due to the resulting termination of the parent-child relationship. (In re Caden C., supra, 11 Cal.5th at pp. 631, 633 [Courts must assume that terminating parental rights terminates the parent's relationship with the child.].) "What courts need to determine [in assessing the third element] is how the child would be affected by losing the parental relationship-in effect, what life would be like for the child in an adoptive home without the parent in the child's life." (Id. at p. 633.)
" '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, termination would 'harm[]' the child, the court should not terminate parental rights. [Citation.] That subtle, case-specific inquiry is what the statute asks courts to perform: does the benefit of placement in a new, adoptive home outweigh 'the harm [the child] would experience from the loss of [a] significant, positive, emotional relationship with [the parent?]' [Citation.] When the relationship with a parent is so important to the child that the security and stability of a new home wouldn't outweigh its loss, termination would be 'detrimental to the child due to' the child's beneficial relationship with a parent. (§ 366.26, subd. (c)(1)(B)(i), italics added.)" (In re Caden C., supra, 11 Cal.5th at pp. 633-634.)
In finding that terminating parental rights (and her relationship with Mother) would not be detrimental to T.L., because none of the exceptions to adoption applied, the juvenile court implicitly and reasonably determined that T.L. would benefit more from adoption than T.L. would suffer or be harmed by the loss of her relationship with Mother. (In re Caden C., supra, 11 Cal.5th at p. 633.) At the time of the section 366.26 hearing, T.L. had just turned two years old and had been out of Mother's care for 17 months, since she was five months old. T.L. was bonded to the PGM, and the PGM was committed to adopting T.L. Given these circumstances, the court reasonably determined that T.L.'s need for permanency and stability, through placement in an adoptive home, outweighed T.L's need to continue her relationship with Mother. In sum, the court did not abuse its discretion in determining that the parental benefit exception did not apply to T.L.'s relationship with Mother.
IV. DISPOSITION
The March 30, 2023 order denying Mother's section 388 petition, and the April 6, 2023 orders terminating parental rights to and placing T.L. for adoption, are affirmed.
We concur: RAMIREZ P.J., RAPHAEL J.