In re A.B. CA4/2 ( 2020 )

Filed 8/14/20 In re A.B. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re A.B., a Person Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E074249
Plaintiff and Respondent, (Super.Ct.No. J274670)
v. OPINION
E.T., et.al.,
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander,
Judge. Affirmed.
Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and
Appellant, E.T.
Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and
Appellant, M.B.
1
Michelle D. Blakemore, County Counsel, David Guardado, Deputy County
Counsel, for Plaintiff and Respondent.
I. INTRODUCTION
Appellants, M.B. (Father) and E.T. (Mother), are the parents of A.B., a child born
in August 2016. The parents appeal from the October 1, 2019 orders denying their
petitions for further reunification services for A.B. (Welf. & Inst. Code, § 3881) and from
the October 30, 2019 orders selecting adoption as A.B.’s permanent plan. (§ 366.26.)
In this appeal, Father claims the juvenile court erroneously failed to recuse the San
Bernardino County Children and Family Services (CFS) and its attorneys, the San
Bernardino Office of County Counsel (County Counsel), from the case based on a
conflict of interest involving A.B.’s caregiver. Father withdrew his motion to recuse CFS
and County Counsel from the case and transfer the case to another county. Thus, the
court never ruled on Father’s recusal motion. The court subsequently denied a more
limited motion by A.B.’s counsel to screen certain CFS employees from A.B.’s case, but
that motion did not ask the court to recuse the entire offices of CFS and County Counsel
from the case. Thus, we conclude Father has forfeited his claim that the court
erroneously refused to recuse CFS and County Counsel from the case.2
1 Undesignated statutory references are to the Welfare and Institutions Code.
2 Mother joins Father’s claims, and Father joins Mother’s reply brief. (Cal. Rules
of Court, rule 8.200(a)(5).) We consider each parent’s claims to the extent they may
benefit both parents.
2
Both parents also claim that the juvenile court (1) abused its discretion in denying
the parents’ section 388 petitions for further reunification services for A.B., and
(2) erroneously failed to find that the parental benefit exception to the adoption
preference applied. (§ 366.26, subd. (c)(1)(B)(i).) We find no merit to these claims.
II. FACTS AND PROCEDURE
A. Background
The family first came to the attention of CFS in June 2017. In searching the
family home in connection with a stolen vehicle that had been found at the home, law
enforcement officers found 20 grams of methamphetamine, including 17.3 grams under a
bed in the master bedroom. The methamphetamine was “easily accessible” to 10-month-
old A.B., and the parents were arrested for child endangerment. CFS opened a voluntary
family maintenance plan for parents.
The parents’ family maintenance plan was open from September 8, 2017, to
January 23, 2018. To ensure A.B.’s safety and avoid his removal from parental custody,
the parents agreed to participate in the plan, which included substance abuse treatment
and drug testing, Narcotics Anonymous (NA) meetings, parenting classes, child abuse
prevention classes, and individual counseling. The parents did not complete the plan. In
October 2017, Mother was “dropped” from her substance abuse treatment plan due to
poor progress and attendance. Father failed to enroll in any services, and between late
2017 and early 2018, each parent failed to participate in on-demand drug testing.
On January 23, 2018, CFS detained A.B. pursuant to a detention warrant and
placed him with his paternal uncle, E.B., a former CFS social worker. The parents had
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asked CFS to consider E.B. for A.B.’s placement. On January 25, CFS filed a
dependency petition alleging jurisdiction because the parents had substance abuse
problems, engaged in illegal activity, and stored “a quantity” of methamphetamine in
their home accessible to A.B. (§ 300, subd. (b).)
At a January 26, 2018 detention hearing, Mother was represented by appointed
counsel, and Father was represented by privately retained counsel, Valerie Ross. Ms.
Ross asked the court to transfer the case to “another county” because CFS had a conflict
of interest with Father’s “close family.” The court advised Ms. Ross that a written
motion to transfer the matter would have to be filed and proceeded with the hearing. The
court detained A.B. in CFS custody, ordered predispositional services and supervised
visits for the parents, and set a jurisdiction and disposition hearing on February 16.
On February 14, 2018, CFS reported that, during the search of the parents’ home
in June 2017, indicia of methamphetamine sales were found, including several glass pipes
and a scale inside a black case beneath the bed in the master bedroom, along with
approximately 17.3 grams of suspected methamphetamine in a baggie, and “more small
baggies with white crystalline substances,” weighing approximately 1.2 grams.
On January 31, 2018, CFS interviewed Mother and Father. Mother claimed that
the methamphetamine found during the June 2017 search of the parents’ home belonged
to a roommate who had been using drugs while living in the home. Mother was born in
January 1980, began using marijuana at age 14, and admitted using methamphetamine
“off and on” since she was age 15 but denied using any methamphetamine since her July
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2017 arrest. Following her arrest, she pled guilty or no contest to a misdemeanor charge
of child cruelty.
Father was born in 1984 and denied having any current medical diagnoses or
prescribed medications. When he was in his 20’s, he was diagnosed as bipolar and was
twice placed on a section 5150 hold. Like Mother, Father claimed that the
methamphetamine found during the June 2017 search of the parents’ home belonged to a
roommate. In 2017, he pled no contest to possessing a stolen vehicle, was placed on
probation for three years, and had to complete a work-release program.
Father said he began using cigarettes and marijuana when he was between five and
eight years old. He tried cocaine once or twice and had “occasionally” used
methamphetamine, but he claimed he had not used any controlled substances in several
years. He did not participate in substance abuse services through the parents’ voluntary
maintenance plan because he felt he did not need the services. He admitted that Mother
had “struggled with substance abuse” and that he “should have been more aware of her
usage.” In 2018, Mother was still married to R.T., although she and R.T. had separated
in July 2015. R.T. reported that Father was a drug dealer and that Mother and Father met
through their substance abuse. R.T. was not A.B.’s biological father.
CFS interviewed E.B. on February 7, 2018. E.B. had “numerous concerns” about
the parents for years and had reported them to law enforcement and the child abuse
hotline. According to E.B., Father was a drug dealer, and the parents met when Mother
and R.T. would meet with Father and Father’s former girlfriend to buy drugs. Mother
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lost custody of an older child due to her heroin use.3 Father was bipolar and had used
drugs since his childhood. Father had been an inpatient at a psychiatric hospital on four
occasions, including for three months in 2010 due to his attempted suicide. Father had
also been fired several times for stealing from employers to support his drug habit and
had a $26,000 judgment against him for “trash[ing]” his rental home in 2017 before he
and Mother were evicted from the home.
In February 2018, the parents were referred for individual counseling, parenting
classes, and individual substance abuse assessments. On February 15, CFS filed an
amended petition, which added an allegation that Father had “ongoing mental health
problems” that adversely affected his ability to parent A.B.
B. Father’s Recusal and Transfer Motion and A.B.’s Related Motions
On February 16, 2018, Father’s counsel, Ms. Ross, filed a motion to recuse CFS
and County Counsel from the case based on an alleged conflict of interest they had
involving E.B. and to transfer the case to a neighboring county. At the time of the
scheduled jurisdiction and disposition hearing on February 16, Mother asked the court to
remove A.B. from E.B.’s care and place him with the maternal grandmother. At
Mother’s request, the court set a March 21 mediation to discuss A.B.’s placement, the
3 Mother admitted that her first husband, J.V., had full custody of their 10-year-
old child. Mother later married R.T., but Mother and R.T. had a 19-year-old son, J.T.,
who was born before Mother married J.V.
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amended petition’s allegations, and visitation.4 The court set an April 2 hearing on
Father’s recusal and transfer motion and a contested jurisdiction and disposition hearing
on April 25. Both hearings were ultimately continued to August 13, 2018.
In support of Father’s recusal and transfer motion, Ms. Ross submitted her own
declaration averring that she was representing Father in A.B.’s dependency case and was
also representing Father’s brother, E.B., in a “whistleblower” civil case against CFS and
the County of San Bernardino (the County), filed in federal district court as USDC Case
No. 5:16-cv-01756-JGB-SP. Ms. Ross claimed that the County and CFS had a conflict of
interest involving E.B. that prevented them from treating Father fairly in A.B.’s
dependency case.
Ms. Ross alleged that, in 2013, E.B. was “a well-respected social worker” for the
County when he reported to CFS management that CFS had been allowing children to be
placed in an unsafe and unsanitary foster home even though the home had been
decertified some 13 years earlier. The County tried to “cover up” E.B.’s “discovery of
longstanding, gross negligence” by CFS in allowing children to continue to be placed in
the foster home. CFS, working with County Counsel, tried to discredit an investigation
involving the foster home that E.B. had completed, by saying that E.B. had exaggerated
the condition of the home and lied in a detention report.
4 At the March 21, 2018 mediation, each parent agreed to participate in individual
counseling, parenting classes, substance abuse treatment, and drug testing. No agreement
was reached concerning jurisdiction, A.B.’s placement, or visitation. At the mediation,
both parents were requesting that the maternal grandmother be considered for A.B.’s
placement.
7
Ms. Ross alleged that CFS instructed another County social worker and “J/D
writer” in the foster home case, Mary Anna Whitehall, to “submit photos” of the home to
the court, which had been “doctored by a CFS assistant director,” and “to remove
allegations” E.B. had made concerning the home. (See Whitehall v. County of San
Bernardino (2017) 17 Cal.App.5th 352, 357-358 [describing Ms. Whitehall’s
“whistleblower” complaint against the County along with her own and E.B.’s roles in the
foster home case].) In sum, Ms. Ross claimed that Father believed CFS and County
Counsel would not treat Father fairly in A.B.’s case, and Father “fear[ed] that [A.B.]
[would] be removed from [E.B.’s] care during the pendency of this matter [based] on
another false allegation against [E.B.]” (Italics added.)
Counsel for A.B. filed a response to Father’s motion, joining the motion and
asking the court to grant it and transfer A.B.’s case to “the most appropriate neighboring
county.” A.B.’s counsel argued that Ms. Ross’s declaration showed by a preponderance
of the evidence that CFS and County Counsel had a conflict of interest involving E.B.’s
and Father’s family that would interfere with their ability to objectively carry out their
duties in A.B.’s dependency case. (See § 16513.5.) A.B.’s counsel noted that Ms. Ross’s
declaration implicated “multiple” CFS social workers, CFS management personnel, and
persons in County Counsel’s office.
County Counsel filed opposition to Father’s motion, arguing that neither CFS nor
County Counsel had a real or apparent conflict of interest with E.B’s and Father’s family.
County Counsel noted that Riverside County had “performed the emergency assessment
that resulted in the recommendation to place” A.B. with E.B., and that Riverside County
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would also be conducting “the full Resource Family Approval assessment” of E.B.
Father cited no authority to support his motion, and, at the detention hearing, the court
noted that Riverside County had already declined to voluntarily accept a transfer of
A.B.’s case.
Through County Counsel, CFS filed its own opposition to Father’s motion. CFS
noted that E.B. was its “primary source of information” in its investigation of A.B.’s
case, and for that reason Father “should have been more afraid of what his brother [E.B.]
was going to say as opposed to what CFS was going to do with the information” that E.B.
provided to CFS concerning Father. CFS also pointed out that, at the detention hearing,
no one claimed that CFS was being “unfair or biased” against Father in its handling of
A.B.’s case.
At the scheduled April 2, 2018 hearing on Father’s motion, the court relieved Ms.
Ross as Father’s counsel and appointed new counsel for Father, after Ms. Ross declared
that she had a conflict of interest in representing Father. The court continued the April 2
hearing to April 20, noting that it was not clear whether Father’s motion would proceed
given that Father had new counsel. Then, on April 20, A.B.’s counsel declared a
potential conflict of interest (§ 317) and the court appointed new counsel for A.B. Also
on April 20, the court advised all counsel “to reevaluate which motions and on what
factors [the motions] are going to be going forward,” and that the court would not be
considering the declarations of any attorneys, including Ms. Ross, who were no longer in
the case. The court set a further “motion date” hearing on June 14.
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At the June 14, 2018 hearing, Father’s new counsel withdrew Father’s recusal and
transfer motion, telling the court, “We’re withdrawing [Father’s] motion to transfer out.
[Father] does not want that to happen.” The court withdrew A.B.’s “prior motion,” or
response and joinder to Father’s motion, noting that A.B.’s new counsel had since filed a
“narrower motion” asking the court to screen from A.B.’s case any social workers and
supervisors who were parties or potential witnesses in E.B.’s civil suit against the County
and CFS. (§ 16513.5.)
County counsel and CFS filed identical oppositions to A.B.’s new motion, arguing
that section 16513.5 authorized the court to “remove” but not to “screen” social workers
from cases; any removal had to be based on an “actual” rather than a “potential” conflict
of interest; and A.B.’s counsel had not demonstrated any actual conflict. On August 13,
2018, following a hearing, the court denied A.B.’s new motion, without prejudice. The
court noted that there had been “no concern” regarding how CFS social workers or
County Counsel had handled A.B.’s case since its filing, but if there was any reason to
believe any social workers were biased in the case, the court would be “open to hearing
about the specifics” of any such bias.
C. Jurisdiction and Disposition (August 13, 2018)
The court held the jurisdiction and disposition hearing on August 13, 2018,
immediately after it denied A.B.’s counsel’s new motion to screen unspecified CFS social
workers from the case.
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1. CFS’s Further Reports
On August 9, 2018, CFS reported that the parents had been “extremely
inconsistent” in participating in their services since February 2018, despite having been
given “countless resources, information, and assistance.” The parents continued to deny
engaging in substance abuse and blamed others, including E.B., for A.B.’s removal from
their custody.
The parents were referred to substance abuse programs, individual counseling, and
parenting classes on February 13, 2018. On February 28, they missed their intake
appointments for their individual counseling, claiming they did not know they had
appointments that day. They enrolled in parenting classes on February 28, after the social
worker contacted them, and in March they were enrolled in substance abuse programs.
Mother tested positive for methamphetamine at her “rehab facility” on March 26 but
denied using the drug and implied that CFS, the rehab facility, and the drug testing
facility were colluding against herself and Father.
From around April 9, 2018 to April 26, 2018, Father was in custody after he
turned himself in in lieu of completing his work release program. On April 2, Father
submitted a drug test specimen that was rejected as outside the acceptable temperature
range. Father failed to drug test during the rest of April but tested negative for drugs on
May 12, May 26, and May 30. By the end of May, Father had only attended three of his
eight counseling sessions.
Mother tested negative for controlled substances on April 11, 2018, May 12, May
23, and May 26, but failed to test on May 30, June 7, June 14, June 22, and July 6.
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Mother attempted to test on July 27 and August 2 but “there was a complication at the
testing facility” and she was unable to test on those days.
Around June 12, 2018, Mother reported that she and Father were no longer
together and requested separate visits with A.B. It was reported that Father caught
Mother having an affair and the two of them engaged in an altercation. But, on June 14,
the parents visited A.B. together and denied engaging in any altercation. The parents had
a history of canceling their visits with A.B. and ending the visits early.
On June 20, 2018, the paternal grandmother (PGM) reported that Father was
hospitalized following a June 19 suicide attempt. The PGM reported that Father was
bipolar and had depression; he and Mother fought after he allowed Mother to return to his
home; and as a result, he attempted suicide. Mother told Father to “go kill himself” and
he attempted to do so. It was also reported that Mother had been with a friend of Father’s
who was a drug addict and a drug dealer; Mother and the friend were stealing and selling
things to buy drugs; and Mother was asking about heroin and using “fake urine” for her
drug tests.
On July 3, 2018, Mother reported that she and Father were still together and asked
about continuing their services in Whittier, where she and Father were planning to
relocate. Mother denied using fake urine for her drugs test and denied using any
controlled substances. Father again failed to drug test on June 14, June 19, June 27, and
July 11. On July 11, the parents asked to participate in a Child and Family Team (CFT)
meeting with CFS, and the meeting occurred on July 18. At the meeting, the parents
were given referrals for services in Los Angeles County. On July 18, Father went to a
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drug testing facility but failed to comply with its protocols and left the facility without
testing. He was unable to test at another location later that day because his test had been
canceled.
The parents canceled an August 1, 2018 visit with A.B., saying they did not have
enough gas to get to the visit though they had failed to obtain a gas card. By August 7,
the parents were no longer enrolled in parenting classes; Mother had an August 9 intake
appointment at another substance abuse rehab facility, and Father had yet to contact CFS
to discuss his hospitalization or his services.
2. The Jurisdiction and Disposition Hearing
At the jurisdiction and disposition hearing on August 13, 2018, the parties agreed
to amend the “b-7” allegation of the amended petition to allege that Father had “untreated
bipolar disorder and depression issues,” rather than “ongoing mental health problems,”
and to dismiss the “b-6” allegation that, on June 24, 2017, Father was found to be
“storing a quantity of methamphetamine” within A.B.’s reach. Father submitted on the
other allegations against himself. The court sustained the “b-1” through “b-5”
allegations, namely, that each parent had an ongoing substance abuse problem that
impaired their ability to care for A.B; that each parent engaged in illegal activity that
placed A.B. at risk, and that, on June 24, 2017, Mother was found to be storing a quantity
of methamphetamine within A.B.’s reach.
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Regarding disposition, the court declared A.B. a dependent; found that Father was
A.B.’s presumed and biological father,5 removed A.B. from the parents’ custody, and
ordered reunification services for each parent. The court also ordered a psychological
evaluation for Father at CFS’s expense and also authorized a psychiatric evaluation, if
necessary or recommended. The court authorized the parents to have separate supervised
visits with A.B. but ruled they could have joint visits by “approval packet” if they were
“compliant with their services.” Neither parent asked to change A.B.’s placement with
E.B.
Although Mother had completed her individual counseling, the court concluded
that another individual counseling referral for Mother was appropriate and also
authorized joint therapy for the parents “as appropriate.” The court ordered both parents
to drug test on August 13, 2018.
The court scheduled a six-month review hearing for February 13, 2019 (§ 366.21,
subd. (e)), but the hearing was continued to April 4, 2019, because the parents contested
the termination of their services. Given the timing of the jurisdictional hearing, the April
4 hearing was a 12-month review hearing. (§ 366.21, subd. (f).)
D. Termination of the Parents’ Services (April 4, 2019)
As of April 4, 2019, the parents were still in a relationship and were living
together in a hotel in Whittier. The parents had completed parenting classes and were
enrolled in substance abuse programs and individual counseling. CFS reported that their
5 DNA tests showed that Father was A.B.’s biological father.
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participation in their substance abuse programs and counseling had been sporadic and
inconsistent. Thus, at the April 4, 2019 review hearing, CFS recommended terminating
the parents’ services and establishing a permanent plan of adoption for A.B.
CFS opined that returning A.B. to the parents would not be in his best interests
because the parents had neither fully completed nor benefited from their case plans, did
not have stable housing, were not financially stable, and had not shown that they were
living a sober lifestyle as indicated by their multiple missed drug tests.
CFS’s reports showed that Mother enrolled in a new substance abuse program on
November 19, 2019, and attended 17 of 60 group sessions through March 28, 2019.
Father enrolled in a substance abuse program on January 18, 2019, and attended 14 of 30
group sessions through March 28. Although, through March 28, both parents had
multiple negative drug tests, both also had multiple “no shows”; one positive test for
methamphetamine, and one diluted test.
Additionally, Father had not completed his court-ordered psychological evaluation
and told CFS that he would find his own doctor to perform the evaluation. He did not
show up for an intake appointment on September 17, 2018, that CFS arranged for him,
and he failed to appear for a December 20, 2018 evaluation that he arranged with his own
psychologist.
During the review period, the parents had separate, supervised visits with A.B. and
did not progress to joint or unsupervised visits. The supervised visits went well; A.B.
was “very happy” to see parents and had “a good bond” with them. A.B. remained
placed with E.B. and had daily contact with many paternal relatives and extended family
15
members. A.B. did not have any significant health issues and was developmentally on
track.
Mother testified at the April 4, 2019 review hearing, and both parents asked the
court to extend their services for another six months. A.B.’s counsel asked the court to
follow CFS’s recommendation to terminate the parents’ services, noting that the parents
had already had around 12 months of services and had not completed their services
despite repeated referrals. County Counsel noted that Father was initially uncooperative
with CFS and “extremely late” in participating in his services, and neither parent had
completed a substance abuse program.
The court terminated the parents’ services, set a section 366.26 hearing on July 29,
2019,6 and authorized the parents to have joint supervised visits with A.B. Again, neither
parent asked the court to change A.B.’s placement.
E. The Parents’ Section 388 Petitions and CFS’s Further Reports
On May 21, 2019, Father filed a section 388 petition seeking further reunification
services and asking the court to vacate the section 366.26 hearing. Father showed that he
had completed his substance abuse program on May 1, 2019, after completing 28 of 35
group sessions. Father was to continue with weekly group meetings, weekly counseling
sessions, and weekly drug testing through his substance abuse program. Father had also
6
The parent filed notices of intent to file writ petitions in case No. E072542,
challenging the April 4, 2019 order setting the section 366.26 hearing. (Cal. Rules of
Court, rules 8.450 to 8.452.) The writ case was dismissed after the parents filed no issue
statements, indicating there were no legal or factual issues upon which to base an
extraordinary writ petition.
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completed eight individual counseling sessions. His therapist reported he had been
“making positive progress” and “gaining insight into [his] behaviors and experiences.”
Father’s section 388 petition did not seek to modify A.B.’s placement with E.B.
In its July 23, 2019 section 366.26 report, CFS recommended adoption as A.B.’s
permanent plan. A.B. “presented as a very happy little boy” and called E.B. “daddy.”
E.B. was committed to adopting A.B. E.B. owned a four-bedroom home he shared with
A.B., another paternal uncle, and the paternal grandmother. A.B. was “always
surrounded by family who love him and [were] committed to providing him a safe and
loving home.” CFS claimed the parents’ supervised visits appeared to be detrimental to
A.B. During visits, the parents were not interacting with A.B., were on their phones,
were “cussing” and “making threats” to E.B., the family, a social worker, and “anyone
else” who was involved with the case. Father was also threatening to kidnap A.B. and
take him where he would never be found, such as Canada or Mexico.
On July 25, 2019, CFS filed a response to Father’s petition, asking the court to
deny it in part because Father had not completed his CFS-sponsored psychological
evaluation, had not submitted to numerous random drug tests, tested positive for
methamphetamines on March 12, 2018,7 and positive for amphetamines on January 28,
2019. Father had completed his own psychological evaluation but had not authorized
CFS to speak with or obtain any reports from his psychologist.
7 Father’s March 12, 2018 drug test specimen was retested on April 2, 2018, and
the retest showed that the original test on March 12 was a “false positive.”
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On July 29, 2019, the court granted E.B.’s request to be appointed A.B.’s de facto
parent. In court on July 29, A.B.’s counsel asked the court to find that the parents’ visits
were detrimental to A.B. and to suspend the visits pending the next hearing or order that
the visits be “closely supervised at CFS only.” County Counsel joined the request and
asked the court to reduce the frequency of the visits from weekly to once or twice
monthly. The court did not reduce the frequency of the visits but ordered them to be
“closely monitored” and supervised only at CFS.
On August 6, 2019, Mother filed her own section 388 petition, seeking further
reunification services, increased visitation, and to vacate the section 366.26 hearing.
Mother adduced evidence that she had completed her entire case plan, including her
counseling and substance abuse treatment program. A letter from Mother’s substance
abuse counselor stated that Mother had “excelled with the curriculum” and showed “the
desire to build a healthy sober lifestyle.” But the letter did not state when Mother had
completed the program or include any information concerning Mother’s drug testing or
drug test results.
On September 27, 2019, CFS reported that the parents visited A.B. on July 31,
August 12, and August 19; the visits went well and there were no concerns. Mother had
a September 9 visit that also went well, and she was “very interactive” with A.B. Father
had still not given CFS a copy of his psychological evaluation, despite three requests for
it in August and September.
CFS filed opposition to Mother’s petition on September 27, 2019. CFS noted that
it had taken Mother eight months to complete a three-month substance abuse program;
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Mother did not complete her second course of individual counseling until July 2019;
Mother had not benefited from her counseling; and Mother had missed many drug tests.
The letter from Mother’s counselor did not state how many drug tests Mother either had
taken or should have taken during her substance abuse program. Mother quit her job in
July 2019, and was living with friends in Crestline, although she was still in a
relationship with Father. Mother said she moved to Crestline in the hope that CFS would
provide her with further services, and if she did not receive the services she would move
back in with Father.
F. The Evidentiary Hearing on the Parents’ Section 388 Petitions (October 1, 2019)
At an October 1 2019 evidentiary hearing, the parents testified in support of their
section 388 petitions. Father testified that he completed his substance abuse program on
April 28, 2019, along with his counseling, and he was currently in aftercare. He had
never been diagnosed with bipolar disorder but suffered from depression, and through
continued counseling he was learning “better methods” of dealing with his depression.
Father claimed he had not used any controlled substances since July 6, 2017, and
had never used any controlled substances with Mother. He had drug tested several times
since May 2019, but he did not have the test results. He denied having a current
substance abuse problem. He did not authorize CFS to obtain a copy of his psychological
evaluation, and he did not complete the CFS-sponsored psychological evaluation because
he felt CFS evaluators were biased. He and Mother were still in a relationship but were
not currently living together.
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Mother testified that she had learned how not to place A.B. at risk and not to use
drugs when she felt anxious or depressed. She signed up for her most recent substance
abuse program in November 2018, and completed it in either July or August 2019. In her
program she learned how to identify her substance abuse “triggers,” how to remain sober,
and live a healthy lifestyle. She had last used methamphetamine in March 2018, and
acknowledged that she had an “ongoing” substance abuse problem. The court accepted
the parties’ stipulation that the parents had been consistent with their visits, that the visits
went well, and that A.B. recognized the parents as “mommy” and “daddy.”
In denying both petitions, the court noted that both parents appeared to be taking
their “current programs” seriously but, given their history of “ongoing problems,” they
needed to show “a substantial period of both sobriety and stability” before the court could
find a change in circumstances, and neither parent made that showing. The parents also
failed to show that granting them additional services would serve A.B’s best interests,
given that A.B. had spent “the majority of his life” with E.B. and his need for
permanency and stability was paramount. To show a substantial change in
circumstances, the court said the parents would have to finish all of their aftercare, show
their sobriety through consistent drug testing, find stable housing, and address Father’s
mental issues.
The court expressly found the parents’ testimony not credible concerning the last
time they used controlled substances. The court noted that Father’s own psychological
evaluation, which Father adduced at the hearing, indicated that he told his psychologist
that he last used methamphetamine in the early 2000’s, but this was inconsistent with
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Father’s testimony that he had been sober since July 6, 2017. The court found that both
parents had minimized their own and each other’s addiction issues and Father’s mental
health issues, and had unstable housing. Mother had been using methamphetamine “on
and off” since she was 15 years old, had not been sober for a substantial period, and had
taken nine months to complete her most recent 90-day substance abuse program.
G. The Section 366.26 Hearing (October 30, 2019)
At the section 366.26 hearing on October 30, 2019, the court terminated parental
rights and selected adoption as A.B.’s permanent plan. The court noted that three-year-
old A.B. had been placed with E.B. for nearly two years, was thriving in E.B.’s care, and
there were no apparent impediments to A.B.’s adoption. The court rejected the parents’
requests to find that the parental benefit exception to adoption applied and to place A.B.
in a long-term guardianship. The court found that neither parent occupied a parental role
in A.B.’s life, given that A.B. looked to E.B. for his daily needs and the parents had never
progressed beyond limited supervised visitation.
III. DISCUSSION
A. Father Has Forfeited His Recusal Claim Concerning CFS and County Counsel
Father claims the juvenile court should have recused the entire offices of CFS and
County Counsel from the case. We conclude that Father has not preserved this claim for
review.
1. Relevant Background
As discussed, in June 2018, Father withdrew his February 2018 motion to recuse
the entire offices of CFS and County Counsel from A.B.’s case and to transfer the case to
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another county. Father’s new, court-appointed counsel withdrew the motion after
Father’s former privately retained counsel, Ms. Ross, declared a conflict of interest in
representing both Father in A.B.’s case and E.B. in E.B.’s civil suit against the County.
Thereafter, the court denied the more limited motion, by A.B.’s counsel, to screen from
A.B.’s case any CFS social workers and supervisors who were parties or potential
witnesses in E.B.’s suit against the County. (§ 16513.5.) In denying A.B.’s motion, the
court noted that no party was claiming that anyone from CFS or County Counsel who
was involved in the case had been biased in their handling of the case, and if any party
raised any such claims the court would be “open to hearing about the specifics” of them.
In his withdrawn motion, Father claimed that E.B.’s pending civil suit against the
County and CFS gave CFS and County Counsel a motive to remove A.B. from E.B.’s
care based on false allegations against E.B. But that never occurred; A.B. remained
placed with E.B. throughout A.B.’s case, E.B. became A.B.’s de facto parent, and CFS
recommended that A.B. be adopted by E.B.
2. Analysis
Father now claims for the first time in this appeal that “the County would have
been tempted to align itself” with E.B. in A.B.’s dependency case, not because E.B. “was
a truthful historian about the parents or because adoption with [E.B.] was in the best
interest” of A.B., but because the County had a financial interest in appeasing E.B. in
order to mitigate the County’s financial exposure to E.B. in E.B.’s pending civil suit
against the County. Father argues the County had a financial interest in aligning itself
with E.B. at the expense of treating Father unfairly in A.B.’s case. Father also argues
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that, had CFS opposed placement of A.B. with E.B. or E.B.’s adoption of A.B., then E.B.
could have had another retaliation claim against CFS.
As County Counsel observes, “Father is essentially seeking relief for the first time
on appeal of an issue not submitted to the juvenile court for review.” “It is axiomatic that
arguments not raised in the trial court are forfeited on appeal.” (Kern County Dept. of
Child Support Services v. Camacho (2012) 209 Cal.App.4th 1028, 1038.) Father’s claim
in this appeal that the juvenile court should have recused the entire offices of CFS and
County Counsel, based on the County’s alleged financial conflict of interest involving
E.B. was never presented to the juvenile court for its consideration in the first instance.8
Thus, Father has forfeited his right to claim in this appeal that the court should have
recused the entire offices of CFS and County Counsel from A.B.’s case.
B. The Parents’ Section 388 Petitions Were Properly Denied
Section 388 allows a parent to petition the juvenile court to change, modify, or set
aside a previous order of the juvenile court. (In re Marilyn H. (1993) 5 Cal.4th 295, 308-
309.) To obtain the requested modification, the parent must show by a preponderance of
the evidence that there has been either a change of circumstance or new evidence, and
8 In his opening brief, Father mistakenly indicates that A.B.’s counsel moved the
court to disqualify the entire offices of CFS and County Counsel from A.B.’s case. And,
in his reply brief, Father mistakenly indicates that the court ruled on this question and that
all parties had the opportunity to argue their positions and did so. Not so. Neither Father,
A.B.’s counsel, nor any other party ever moved forward with a motion to recuse the
entire offices of CFS and County Counsel from A.B.’s case. Rather, as discussed, the
court only ruled on and denied A.B.’s motion to screen particular CFS employees from
the case, not to recuse the entire offices of CFS and County Counsel from the case.
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that the requested modification is in the best interests of the child. (In re Alayah J.
(2017) 9 Cal.App.5th 469, 478; In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
We review the grant or denial of a section 388 petition for an abuse of discretion
and will not disturb the court’s ruling unless an abuse discretion is clearly shown. (In re
Marcelo B. (2012) 209 Cal.App.4th 635, 642.) Both parents claim the juvenile court
abused its discretion in denying their section 388 petitions for further reunification
services. We find no abuse of discretion in the court’s denial of either petition.
Father claims he showed by “abundant evidence” that he “turned his life around”
in the time before the filing of and the hearing on his petition; thus, he showed a change
of circumstance. Additionally, Father claims he showed that granting him further
services was in A.B.’s best interests, because his visits with A.B. went well and A.B. was
happy to see him. The juvenile court reasonably concluded, however, that Father failed
to show either changed circumstance or best interests.
As the court pointed out in denying both parents’ petitions, neither parent showed
that they had been clean and sober for a substantial period of time given the length of
their substance abuse histories. The court found each parent’s testimony not credible
concerning when they last used methamphetamine. Indeed, neither parent adduced any
evidence that they had tested negative for controlled substances for a sustained or
substantial period before the October 1, 2019 hearing on their petitions. Father also did
not show that he had addressed his longstanding mental health issues, and neither parent
had stable housing.
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The court also reasonably concluded that granting reunification services to either
parent would not serve the best interests of A.B. After a parent’s reunification services
are terminated, a parent’s interest in the care, custody, and companionship of their child
is no longer paramount and the focus shifts to the child’s need for permanency and
stability. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)
By the time of the October 1, 2019 hearing, A.B. was over three years old, and had
been placed with A.B. since January 23, 2018. As the court found, granting either parent
additional services would have meant delaying A.B.’s permanency while “waiting for the
parents to possibly make a substantial change in circumstances.” Given the parents’
failure to show their continued sobriety through consistent drug testing at the time of the
October 1, 2019 hearing, despite their having had access to CFS-sponsored substance
abuse and other services since July 2017, the court reasonably concluded that it was not
in A.B.’s best interests to delay his permanency while granting the parents additional
services.
Mother claims the court unreasonably faulted her for not demonstrating a
sustained period of sobriety following her completion of her substance abuse program in
July or August of 2019. Mother points out that she completed two parenting classes, two
rounds of individual counseling, and a substance abuse program—all of the required
components of her case plan. She argues that, in denying her petition, the court
misconstrued “the purpose” of section 388, which is to provide an “ ‘escape mechanism’
when parents complete a reformation in the short, final period” following the termination
of their services and before their parental rights are terminated. (In re Kimberly F. (1997)
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56 Cal.App.4th 519, 528.) The court did not misconstrue the purpose of section 388.
Rather, it properly considered A.B.’s paramount need for stability and permanency in
concluding that his best interests would not be served by granting either parent additional
services and additional time, to show they could safely reunite with A.B. Despite the
parents’ completion of additional services, as demonstrated in their petitions, neither had
progressed beyond supervised visits by October 1, 2019, six months after their services
were terminated. Further, given the parents’ long term substance abuse histories, the
court reasonably concluded that their short period of reported recovery was insufficient to
demonstrate changed circumstances.
C. The Court Properly Determined That the Parental Benefit Exception Did Not Apply
Both parents claim the court erroneously concluded that the parental benefit
exception to the adoption preference did not apply, and that the court should have instead
ordered a permanent plan of legal guardianship. Again, we find no abuse of discretion.
1. Applicable Legal Principles
At a section 366.26 hearing, the juvenile court selects and implements a permanent
plan for the dependent child. (In re K.P. (2012) 203 Cal.App.4th 614, 620.) These
include (1) adoption, necessitating termination of parental rights, (2) guardianship, or (3)
long-term foster care. (§ 366.26, subds. (c)(1), (4)(A); In re J.C. (2014) 226 Cal.App.4th
503, 528.) If the court finds the child is adoptable, it “ ‘shall terminate parental rights’ ”
and select adoption as the child’s permanent plan, unless it finds that one or more
exceptions to the statutory adoption preference applies. (In re K.P., at p. 620; see
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§ 366.26, subd. (c)(1)(A)-(B).) A parent has the burden of showing that an exception
applies. (In re Scott B. (2010) 188 Cal.App.4th 452, 469.)
The parental benefit exception applies when the parent has “maintained regular
visitation and contact with the child and the child would benefit from continuing the
relationship.” (§ 366.26, subd. (c)(1)(B)(i); see In re Angel B. (2002) 97 Cal.App.4th
454, 466.) To show that the child would benefit from continuing the relationship with the
parent, the parent “must do more than demonstrate . . . an emotional bond with the child”;
the parent “must show that he or she occupies a ‘parental role’ in the child’s life.” (In re
Derek W. (1999) 73 Cal.App.4th 823, 827.)
The parent must also show that the parent-child relationship “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 other words, the court balances the
strength and quality of the natural parent/child relationship in a tenuous placement
against the security and the sense of belonging a new family would confer. If severing
the natural parent/child 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.” (In re
Autumn H. (1994) 27 Cal.App.4th 567, 575.)
“ ‘The balancing of [these] competing considerations must be performed on a
case-by-case basis and take into account many variables, including the 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.
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[Citation.] When the benefits from a stable and permanent home provided by adoption
outweigh the benefits from a continued parent/child relationship, the court should order
adoption.’ [Citation.]” (In re Jasmine D. (2000) 78 Cal.App.4th1339, 1349-1350.) This
rule applies unless “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 Autumn H., supra, 27 Cal.App.4th at p. 575, italics added.)
2. Standard of Review
California appellate courts are divided over the appropriate standard of review of
an order applying the parental benefit exception. Some courts have applied the
substantial evidence standard; others have applied the abuse of discretion standard or a
combination of the substantial evidence and abuse of discretion standards; and still others
have required evidence compelling a finding in favor of the parent on the beneficial
relationship issue as a matter of law. (See, e.g., In re L. Y. L. (2002) 101 Cal.App.4th
942, 947 [substantial evidence]; In re Jasmine D., supra, 78 Cal.App.4th at p. 1351
[abuse of discretion]; In re Collin E. (2018) 25 Cal.App.5th 647, 663, [combination]; In
re Breanna S. (2017) 8 Cal.App.5th 636, 647 [matter of law].)
Our Supreme Court has granted review to determine the appropriate standard that
governs appellate review of the application of the parental benefit exception. (In re
Caden C. (2019) 34 Cal.App.5th 87, 106, review granted July 24, 2019, S255839.) Here,
we conclude that, under any applicable standard, the court properly determined that the
parental benefit exception did not apply to either parent’s relationship with A.B.
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3. Analysis
The court’s refusal to apply the parental benefit exception was proper for several
reasons. First, there was no evidence that A.B. would be greatly harmed by the
termination of parental rights and the severing of any positive emotional attachment he
may have had with either parent. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) At
the time of the section 366.26 hearing on October 30, 2019, A.B. was over three years old
and had been living with E.B. since January 23, 2018, when he was around 17 months
old. A.B. was thriving in E.B.’s care and looked to E.B. for his daily needs. Although
A.B. recognized the parents as “mommy” and “daddy,” there was no indication that
severing A.B.’s relationship with the parents would be detrimental to or greatly harm
A.B.
Second, the court reasonably found that neither parent occupied a parental role in
A.B.’s life. (In re Derek W., supra, 73 Cal.App.4th at p. 827.) Although the parties
stipulated that the parents consistently visited A.B. and that the visits went well, the court
reasonably concluded, based on CFS’s reports, that A.B. looked to E.B. for his daily
needs. As the court also noted, the parents never progressed beyond limited supervised
visitation. Third and lastly, neither parent showed that their parent-child relationship
with A.B. promoted A.B.’s well-being to such a degree as to outweigh the well-being that
A.B. would gain in a permanent home with new, adoptive parents. (In re Autumn H.,
supra, 27 Cal.App.4th at p. 575.)
Thus, we conclude that the juvenile court properly determined that the parental
benefit exception did not apply.
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IV. DISPOSITION
The October 1, 2019 orders denying the parents’ section 388 petitions for further
services, and the October 30, 2019 section 366.26 orders terminating parental rights and
selecting adoption as A.B.’s permanent plan, are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
MILLER
Acting P. J.
RAPHAEL
J.
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