In re C.J. CA2/6 ( 2021 )

Filed 3/15/21 In re C.J. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
In re C.J., a Person Coming 2d Juv. No. B306722
Under the Juvenile Court Law. (Super. Ct. No. 18JD00285)
(San Luis Obispo County)
SAN LUIS OBISPO COUNTY ORDER MODIFYING
DEPARTMENT OF SOCIAL OPINION AND DENYING
SERVICES, REHEARING
[NO CHANGE IN
Plaintiff and Respondent, JUDGMENT]
v.
B.J. et al.,
Defendants and Appellants.
THE COURT:
It is ordered that the opinion filed herein on February 25,
2021, be modified as follows:
1. On page 11, the last paragraph is deleted and replaced
with:
Parents contend that the orders must be reversed
because the Department purposely reduced Mother’s
visitation to strengthen C.J.’s ties with her caregivers
and to hinder Mother’s ability to establish the
beneficial relationship exception. We decline to
consider this contention because it was not
sufficiently supported by argument or citation to
legal authority, was not identified in a heading in
Mother’s opening brief, and because, as discussed
above, Mother was provided reasonable
visitation. (People v. Aguayo (2019) 31 Cal.App.5th
758, 768; Provost v. Regents of University of
California (2011) 201 Cal.App.4th 1289, 1294.)1
There is no change in judgment.
Appellant’s petition for rehearing is denied.
____________________________________________________________
TANGEMAN, J. YEGAN, Acting P. J. PERREN, J.
1 Father makes no independent challenges to the judgment
but contends that if the order terminating Mother’s parental
rights is reversed, the order terminating his rights must also be
reversed. (Cal. Rules of Court, rule 5.725(a)(1); In re DeJohn B.
(2000) 84 Cal.App.4th 100, 110 [rule not automatic].) Because we
affirm as to Mother, we also affirm as to Father.
2
Filed 2/25/21 In re C.J. CA2/6 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
In re C.J., a Person Coming 2d Juv. No. B306722
Under the Juvenile Court Law. (Super. Ct. No. 18JD00285)
(San Luis Obispo County)
SAN LUIS OBISPO COUNTY
DEPARTMENT OF SOCIAL
SERVICES,
Plaintiff and Respondent,
v.
B.J. et al.,
Defendants and Appellants.
B.J. (Father) and K.A.J. (Mother) appeal from the
juvenile court’s orders (1) denying Mother’s petition to change the
order terminating her reunification services as to their daughter
C.J. and to increase in-person visitation (Welf. & Inst. Code,2
§ 388) and (2) terminating their parental rights and selecting an
adoption plan (§ 366.26). They assert the juvenile court abused
its discretion when it declined to reinstate reunification services
to Mother, substantial evidence did not support rejection of the
beneficial relationship exception (§ 366.26, subd. (c)(1)(B)(i)), and
Mother’s due process rights were violated when the court made
an inadequate visitation order.3 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
C.J. was born in November 2017. In January 2018,
Mother was intoxicated, passed out, and unresponsive. C.J., who
was two months old, was lying next to her with an empty bottle of
vodka nearby. In another incident that month, Mother was
drinking, “stumbling around,” and arguing with Father when she
attempted to get her keys and leave with C.J. In April, Mother
passed out again from intoxication while caring for C.J. In
August, Mother was incarcerated for violating her DUI probation
with a new DUI. The same month, Mother and Father engaged
in domestic violence in front of C.J. A bottle of vodka was found
in her crib.
Father was arrested in July for meeting for lewd
purposes an undercover officer posing as a 15-year-old girl. (Pen.
Code, § 288.4, subd. (b).) He was sentenced to three years in
state prison. He texted another person describing sexual contact
2All subsequent undesignated statutory references are to
the Welfare and Institutions Code.
3 Father’s appeal from the denial of his oral motion to
dismiss based on lack of jurisdiction has been abandoned. (In re
S.C. (2006) 138 Cal.App.4th 396, 408.)
2
he had with C.J. and future sexual contact he wished to have
with her.
The San Luis Obispo County Department of Social
Services (Department) filed a petition on C.J.’s behalf. (§ 300,
subds. (b)(1), (d) & (g).) The court sustained the petition in
November 2018, adjudged C.J. a dependent of the juvenile court,
removed custody from the parents, and placed C.J. with a
paternal aunt. (§§ 300, subds. (b)(1) & (d), 361, subd. (c)(1).) The
court ordered reunification services for both parents, supervised
visitation for Mother, and no contact with Father.
The court returned C.J. to Mother in January 2019.
In April, the court terminated reunification services for Father
because he failed to participate in court-ordered treatment.
Mother stopped urine testing and treatment in June.
On August 2, a social worker found Mother passed out on the
couch with the front door wide open, beer cans and wine bottles
throughout the house, and C.J. alone and crying in the bedroom.
After several attempts to wake Mother, she got up and stumbled
to the bedroom. C.J. had a bump on her head; Mother claimed it
happened at the house of a relative, who denied knowledge. C.J.
was removed from Mother’s custody and placed with a relative.
Mother admitted she relapsed in July and was “off
the rails” through October. She resumed treatment in August
but discontinued again in mid-September. She resumed
treatment in October.
In January 2020, the court found there was not a
substantial probability of returning C.J. at the 18-month date of
February 28, 2020. The court terminated Mother’s reunification
services and set a hearing to terminate parental rights.
(§ 366.26.)
3
In May, Mother filed a request to change court order.
(§ 388.) She alleged she was participating in mental health,
substance abuse, and parenting programs. She declared that she
had been sober for 11 months before a relapse in July 2017. She
stated she had been sober from August 2018 through July 2019.
She suffered a relapse in July 2019 but now claimed she had been
sober since August 7, 2019. She requested the court order family
maintenance or reinstate unification services to her. She also
requested in-person visitation.
At combined hearings on Mother’s modification
request (§ 388) and termination of parental rights (§ 366.26),
Mother testified she was attending eight AA meetings a week
and serving as secretary at two of them. She agreed that C.J.
received primary care from her current caregivers for the
preceding 10 months.
A specialist with drug and alcohol services testified
that Mother had gained insight regarding her alcoholism and
“finally figured . . . out” that recovery is a lifetime process.
Mother obtained a sponsor as part of a relapse prevention
strategy.
Mother’s marriage and family therapist testified that
Mother was abstaining from alcohol and was engaged in AA and
other activities necessary to maintain recovery. She testified
that Mother was close to one year of abstinence, at which point
the rate of lifetime sobriety doubles.
An adoptions social worker for the Department
opined that it would not be in C.J.’s best interest to return
custody to Mother because her history of relapses would place
C.J. at too great a risk of being removed again. C.J.’s caregivers
preferred adoption to guardianship because it provided stability
4
and avoided the worry that a parent might petition to dissolve
the guardianship.
The court considered C.J.’s history. She was placed
with her paternal grandfather in August 2018 for approximately
three months. In November, she lived with Mother at a
residential treatment facility for 30 days. For the next
approximately six months, C.J. and Mother lived in the same
home as a paternal aunt and grandmother. For the next three
months, Mother and C.J. lived together in an apartment. C.J.
was removed in August 2019 and returned to the home of her
aunt and paternal grandmother, where she remained.
The trial court denied the section 388 petition. The
court noted that Mother continued with therapy even after
services were terminated. The court stated that while “this may
be the time” that Mother remains sober, it would not take the
chance of another relapse that would place C.J. at risk of harm
and further trauma. The court found that C.J. was well bonded
with both Mother and the custodial family members. The
parental aunt wanted to adopt C.J. The court found it unlikely
that Father would be released from prison soon and therefore
permanency predominated. The court found it was likely C.J.
would be adopted and terminated parental rights.
DISCUSSION
Section 388 petition
When reunification services have been terminated
and a section 366.26 hearing set, the focus of the case shifts from
“the parents’ interest in the care, custody and companionship of
the child . . . ‘to the needs of the child for permanency and
stability.’” (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
5
“[T]here is a rebuttable presumption that continued foster care is
in the best interests of the child.” (Ibid.)
“‘Section 388 provides the “escape mechanism” . . . to
allow the court to consider new information.’” (In re Mickel O.
(2011) 197 Cal.App.4th 586, 615.) The petitioner must show by a
preponderance of the evidence “‘a genuine change of
circumstances’” and that “‘undoing of the prior order would be in
the best interests of the child. [Citation.]’” (Ibid.)
We review denial of a section 388 petition for abuse of
discretion, which is not shown unless the trial court made “‘“an
arbitrary, capricious, or patently absurd determination
[citations].”’” (In re Stephanie M., supra, 7 Cal.4th at p. 318.) We
find no abuse of discretion here.
In determining a section 388 motion, factors to
consider include: “(1) [T]he seriousness of the problem which led
to the dependency, and the reason for any continuation of that
problem; (2) the strength of relative bonds between the
dependent children to both parent and caretakers; and (3) the
degree to which the problem may be easily removed or
ameliorated, and the degree to which it actually has been.” (In re
Kimberly F. (1997) 56 Cal.App.4th 519, 532, italics original
(Kimberly F.).) In Kimberly F., dependency was based on an
unsanitary house, a problem the parent had resolved. (Id. at pp.
521-522, 532.) Here, dependency was based on a more serious
and intractable problem, including Mother’s loss of consciousness
from alcohol abuse that left C.J. unsupervised and unprotected.
(See In re K.B. (2021) 59 Cal.App.5th 593, 600 [“mother routinely
disappeared from her children’s lives” by falling asleep from
substance abuse].) The trial court properly concluded that
6
Mother had a “deeply ingrained alcohol addiction,” and that when
Mother drinks, she drinks to excess and places C.J. at risk.
As in Kimberly F., C.J. had ties to both Mother and
the family members who had taken care of her for much of her
life. And while Mother made recent progress toward recovery,
the dependency was punctuated by recurrences endangering C.J.
Despite eight months of reunification services and nine months of
family maintenance services, Mother failed to demonstrate her
ability to protect C.J. on a sustained basis.
“[I]n order to prevent children from spending their
lives in the uncertainty of foster care, there must be a limitation
on the length of time a child has to wait for a parent to become
adequate.” (In re Marilyn H. (1993) 5 Cal.4th 295, 308,
disapproved on another point as stated in Nickolas F. v. Superior
Court (2006) 144 Cal.App.4th 92, 112.) Reunification services
may not exceed six months if the child is under the age of three,
unless the court finds a substantial probability of return in an
extended 12- or 18-month period. (§§ 361.5, subd. (a)(1)(B),
(a)(3)(A), 366.21, subd. (g); Cynthia D. v. Superior Court (1993) 5
Cal.4th 242, 249.) In January 2020, the court found no
substantial probability that C.J. could be returned within 18
months.
The juvenile court did not abuse its discretion in
concluding that Mother failed to establish that reopening
reunification services would be in C.J.’s best interest and would
“advance the child’s need for permanency and stability.” (In re
J.C. (2014) 226 Cal.App.4th 503, 527; Cal. Rules of Court, rule
5.570(e)(1) & (i).) C.J.’s “best interests [were] not to further delay
permanency and stability in favor of rewarding Mother for her
hard work and efforts to reunify.” (In re J.C., at p. 527.)
7
Mother’s frequent relapses presented a realistic danger that C.J.
would be traumatized by yet another removal from custody.
Beneficial relationship exception
Mother contends that the beneficial relationship
exception (§ 366.26, subd. (c)(1)(B)(i)) applies and the court erred
in terminating parental rights for adoption rather than granting
guardianship. We disagree.
There is a split of authority as to the standard of
review regarding the beneficial relationship exception. (In re
Caden C. (2019) 34 Cal.App.5th 87, 106, review granted July 24,
2019, S255839).) Recent cases review the factual issue of
whether a beneficial parental relationship exists for substantial
evidence, and whether termination would be detrimental to the
child for abuse of discretion. (In re Bailey J. (2010) 189
Cal.App.4th 1308, 1314-1315; In re E.T. (2018) 31 Cal.App.5th
68, 76.) Utilizing either standard of review, we find no error.
Mother contends the purpose of the beneficial
relationship exception is to preserve visitation and does not
encompass custody. She is mistaken. The beneficial relationship
provision is an exception to the statutory preference to terminate
parental rights in favor of adoption. (§366.26, subd. (b)(1).)
Section 366.26, subdivision (c)(1) provides: “If the court
determines . . . that it is likely the child will be adopted, the court
shall terminate parental rights . . . unless either of the following
applies: [¶] . . . [¶] (B) The court finds a compelling reason for
determining that termination would be detrimental to the child
due to one or more of the following circumstances: [¶] (i) The
parents have maintained regular visitation and contact with the
child and the child would benefit from continuing the
relationship.” The trial court properly applied the statute.
8
The exception requires the parent prove both regular
visitation and that the relationship with the child “‘“‘promotes
the well-being of the child to such a degree as to outweigh the
well-being the child would gain in a permanent home with new,
adoptive parents.’”’” (In re Breanna S. (2017) 8 Cal.App.5th 636,
646.) A parent who has not reunified “‘may not derail an
adoption merely by showing the child would derive some benefit
from continuing a relationship maintained during periods of
visitation with the parent.’” (Ibid., italics original.) The
exception applies only in “‘an extraordinary case’” because the
permanent plan hearing occurs after the court has found the
parent is unable to meet the child’s needs. (Ibid.)
Mother met the first prong of the exception by
“maintain[ing] regular visitation and contact with the child.”
(§ 366.26, subd. (c)(1)(B)(i).) But she did not show that
terminating parental rights “would be detrimental to the child.”
(§ 366.26, subd. (c)(1)(B).)
Substantial evidence supported the juvenile court’s
conclusion that the exception did not apply, and the court did not
abuse its discretion in reaching that conclusion. An emotional
bond with the child is insufficient; “the parent must show that he
or she occupies a ‘parental role’ in the child’s life” and that the
child would be “‘greatly harmed’” by severing the relationship.
(In re Derek W. (1999) 73 Cal.App.4th 823, 827.) C.J. was two
years eight months old at the time of the final order and had
spent more than half her life in foster care with parental
relatives. Although C.J. had bonded with both Mother and the
caregivers, the Department reported that C.J. received primary
care from her caregivers for the preceding 10 months and
9
“look[ed] to them for ongoing support, security, and parenting.”
The court properly concluded that she should not be denied the
benefits of permanency by continuing to wait for Mother to
establish sustained sobriety.
Visitation
Mother contends the court’s failure to order more
visitation, and limiting her to visitation by video, violated her due
process rights. She asks that we reverse the termination order
and remand for six more months of visitation, to be followed by
another section 366.26 hearing. (In re David D. (1994) 28
Cal.App.4th 941, 956.) Her contention lacks merit.
When the court terminates reunification services and
sets a section 366.26 hearing, it must allow visitation unless it
would be detrimental to the child. (§ 366.21, subd. (h).)
Visitation was provided here.
Starting in August 2019, Mother was allowed weekly
one-hour supervised visits. After the termination of unification
services in January 2020, she had one-hour supervised visits
twice a month. In March 2020, based on the COVID-19
pandemic, the Department allowed only electronic visitation.
Mother visited C.J. six times by video between March and May
for about 90 minutes each time. Mother talked to C.J., read to
her, and they colored together. On June 24, the court reinstated
in-person visits. Mother had two in-person visits and C.J. was
excited to see her.
Mother contends that the failure to provide more in-
person visits violated her right to due process. “In substantive
due process law, deprivation of a right is supportable only if the
conduct from which the deprivation flows is prescribed by
reasonable legislation that is reasonably applied; that is, the law
10
must have a reasonable and substantial relation to the object
sought to be attained.” (In re Marilyn H., supra, 5 Cal.4th at pp.
306-307.) Due process was satisfied here by giving Mother
reasonable visitation, a reasonable period to reunify, and an
opportunity to show changed circumstances. (Id. at p. 309.)
This case is not like In re David D., supra, 28
Cal.App.4th 941, or In re S.S. (2020) 55 Cal.App.5th 355, 377. In
those cases, the parent was not allowed sufficient visitation to
maintain or demonstrate a bond with the child. In contrast here,
Mother was allowed regular contact and positive bonding
experiences with C.J. Mother has not shown that more in-person
visits would have allowed her to establish that terminating
parental rights was detrimental.
Parents contend that the orders must be reversed
because the Department purposely reduced Mother’s visitation to
strengthen C.J.’s ties with her caregivers and to hinder Mother’s
ability to establish the beneficial relationship exception. We
decline to consider this contention because it was raised for the
first time in their reply briefs (In re Ricky H. (1992) 10
Cal.App.4th 552, 562), and because, as discussed above, Mother
was provided reasonable visitation.4
4 Father makes no independent challenges to the judgment
but contends that if the order terminating Mother’s parental
rights is reversed, the order terminating his rights must also be
reversed. (Cal. Rules of Court, rule 5.725(a)(1); In re DeJohn B.
(2000) 84 Cal.App.4th 100, 110 [rule not automatic].) Because we
affirm as to Mother, we also affirm as to Father.
11
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
YEGAN, Acting P. J.
PERREN, J.
12
Charles S. Crandall, Judge
Superior Court County of San Luis Obispo
______________________________
Joseph T. Tavano, under appointment by the Court of
Appeal, for Defendant and Appellant B.J. (Father).
Maryann M. Goode, under appointment by the Court
of Appeal, for Defendant and Appellant K.A.J. (Mother).
Rita Neal, County Counsel, Timothy McNulty,
Deputy County Counsel, for Plaintiff and Respondent.