Filed 4/30/14 In re B.B. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re B.B., A Person Coming Under the
Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E059372
Plaintiff and Respondent, (Super.Ct.No. SWJ1200184)
v. OPINION
L.B.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John M. Monterosso,
Judge. Affirmed.
Samantha A. Greene, under appointment by the Court of Appeal, for Defendant
and Appellant.
Pamela J. Walls, County Counsel, and Carole A. Nunes Fong, Deputy County
Counsel, for Plaintiff and Respondent.
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L.B. (Mother) appeals after the termination of her parental rights to B.B. at a
Welfare and Institutions Code section 366.261 hearing. Mother makes two claims on
appeal that (1) the juvenile court erred by denying her section 388 petition; and (2) the
beneficial relationship exception pursuant to section 366.26, subdivision (c)(1)(B)(i)
applied to preclude the termination of her parental rights. We affirm the juvenile court’s
orders denying Mother’s section 388 petition and terminating her parental rights.
I
PROCEDURAL AND FACTUAL BACKGROUND
A. Detention
On January 23, 2012, a general neglect referral was received by the Riverside
County Department of Public Social Services (Department) for B.B.’s sibling, A.B., who
was born on June 23, 2010.2 A.B. was living with her paternal grandmother, T.A. T.A.
had been taking pain medication and it was reported that it was giving her thoughts of
harming A.B. T.A. was the primary caregiver because it was reported that Mother and
A.B.’s father (Father)3 were addicted to methamphetamine. T.A. had stopped taking the
pain medication. She insisted she only had thoughts of harming herself, not A.B. T.A.
1 All further statutory references are to the Welfare and Institutions Code
unless otherwise indicated.
2 A.B. was already living with T.A. and was not involved in the instant
dependency proceedings. Legal guardianship of A.B. was granted to T.A. during the
pendency of these proceedings.
3 Father’s rights were also terminated as to B.B. in the proceeding but he has
not filed an appeal.
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only admitted that Mother used drugs in the past but claimed she was taking care of A.B.
because Mother wanted to have fun and was not “really a mom.” A.B. was back living
with T.A. and T.A. had applied for legal guardianship because Mother and Father did
nothing to take care of A.B.
On February 9, 2012, the Department met with Father and Mother, who were
living with Father’s grandparents. Father appeared to be under the influence of
methamphetamine. Mother was also living in the home. Mother claimed T.A. “stole”
A.B. from her and Father. Mother appeared to be under the influence of
methamphetamine and admitted using a few days prior. Mother reported that B.B. had
been born on January 28, 2012. There were no complications with the birth and B.B. was
born drug free. B.B. appeared in good condition and bonded to Mother and Father. A
urine test for drugs was taken from Mother and Father.
Mother and Father were given a safety plan and were allowed to retain custody of
B.B. They were to remain drug free and enroll in Family Preservation Court.
On February 27, 2012, Mother refused to take a drug test. Mother failed to attend
a team decision meeting at the Department on February 29, 2012. Family members
attested that Mother did not take care of either B.B. or A.B. Mother had not completed
the paperwork for Family Preservation Court. Mother’s urine test results were positive
for methamphetamine and marijuana. Mother had refused to meet with a social worker
on March 7, 2012. Father had an extensive criminal history, primarily consisting of drug
offenses.
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On March 9, 2012, a section 300 petition was filed by the Department against
Father and Mother on behalf of B.B. It alleged against Mother, under section 300,
subdivision (b), that she abused controlled substances, had failed to comply with the
safety plan, and lacked parenting skills to care for B.B. At a detention hearing held on
March 12, 2012, the juvenile court found a prima facie case and ordered B.B. detained.
The petition was amended to reflect that B.B. was detained and was placed in a foster
home.
B. Jurisdictional/Dispositional Report and Hearing
In a jurisdictional/dispositional report filed on March 29, 2012, the Department
recommended that Mother be given a psychological evaluation and that she receive six-
months of reunification services. Father was the presumed father.
Mother had been interviewed on March 22, 2012. She admitted to using both
marijuana and methamphetamine. She denied that she intentionally missed any meetings
with the Department and claimed she had not been notified of the meetings. Mother
insisted she suffered from postpartum depression after the birth of A.B. but never saw a
doctor for this diagnosis.
Mother claimed that as a teenager she had been diagnosed with bipolar disorder
but had never been prescribed medication. Mother started drinking alcohol when she was
14 years old, she progressed to marijuana by the age of 15, and finally to
methamphetamine use when she was 18 years old. She admitted using marijuana and
methamphetamine as recently as that week. Using methamphetamine was an ongoing
struggle for her. She had been clean and sober before but always relapsed.
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Mother was instructed to enroll in a substance abuse program. She scheduled an
intake appointment for March 20, 2012, and then rescheduled to March 21, 2012. She
never showed up for the appointment. Mother attended visitation with B.B. on March 15,
2012 and she was appropriate during the visit. Mother wanted a psychological evaluation
to confirm her diagnosis. She also wanted drug counseling.
The jurisdictional/dispositional hearing was conducted on April 4, 2012. A third
amended petition was filed striking all the facts alleged against Mother supporting the
section 300, subdivision (b) allegation except that Mother abused controlled substances.
Mother waived her rights to a trial and submitted on the allegations in the amended
petition. The juvenile court found the allegations in the third amended petition true.
Mother was granted reunification services and a psychological evaluation was ordered.
C. Six-Month Status Review Report
In a status review report filed on September 21, 2012, the Department
recommended an additional six months of reunification services for Mother and that
visitation be liberalized to weekend and overnight visits. Mother had obtained an
apartment with the help of her mother and had the use of a vehicle. Mother had
maintained her sobriety for several months. B.B. was developing normally.
Mother enrolled in a substance abuse program on April 3, 2012. She had failed a
drug test the first week of her enrollment but had since been sober. Mother had been
living in a facility that helps women and their children but had been removed from the
facility for using her cellular telephone without authorization.
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Mother had not enrolled in parenting education. Further, due to Mother’s admitted
substance abuse, the Department determined psychological testing would not be
beneficial. Mother had missed some random drug tests. Mother and Father were no
longer together.
Mother was loving and attentive during visitation with B.B. B.B. seemed to enjoy
the visits and appeared bonded to Mother.
An addendum report was filed on October 26, 2012. In this report, the
Department recommended that reunification services for Mother be terminated and that a
section 366.26 hearing be set.
On October 1, 2012, during a visit with B.B., Mother appeared to be under the
influence. An oral saliva test was conducted and it was positive for methamphetamine.
Mother refused to submit to a urine test. Mother admitted that she used drugs on October
8, 2012. She claimed she was depressed.
On October 10, 2012, Mother missed a visit with B.B. (she claimed to have
overslept). T.A. attended the visit with A.B. T.A. advised the social worker that Mother
and Father were still together and that they never visited A.B. On October 19, 2012,
Mother submitted to a hair follicle drug test. She tested positive for methamphetamine
and amphetamines. Mother had been inconsistent in her attendance at the outpatient drug
treatment program. She was on a waiting list for an inpatient program.
The status review hearing was conducted on October 29, 2012. Mother objected
to the termination of services but did not present any evidence. She was requesting six
more months of reunification services. The juvenile court noted, as to Mother’s
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substance abuse problem, “[T]he recent dirty test shows she’s made no progress. I can’t
return the child to her. I cannot begin to imagine her conquering this years-long
addiction in the next six months when she’s essentially at square one.” Mother’s
reunification services were terminated and a section 366.26 hearing was set.
The Department filed an ex parte application to remove B.B. from her foster home
and place her with T.A. The application was granted and B.B. was placed with T.A. on
February 7, 2013.
D. Section 366.26 Report
On February 13, 2013, the Department filed a report for the section 366.26
hearing. B.B. was a happy baby who was developing normally.
Mother had attended visitation and the visits went well. She brought presents to
B.B. for both Christmas and her birthday. Mother claimed that she was not attending the
outpatient drug program because her drug counselor had asked her for sexual favors. The
Department requested a continuance in order to conduct an adoption study. The matter
was continued.
Another report was filed on June 12, 2013. B.B. was thriving in the custody of
T.A. B.B. was bonded to both T.A. and her sister A.B. A preliminary assessment for
adoption by T.A. had been conducted and she was recommended to adopt B.B.
E. Section 388 Petition and Section 366.26 Hearing
At the time of the section 366.26 hearing on July 1, 2013, Mother made an oral
section 388 motion. The juvenile court denied the section 388 petition, as will be
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discussed in more detail, post. The juvenile court then considered whether to terminate
Mother’s parental rights. Mother did not object to the Department’s documents.
Mother’s parental rights were terminated and B.B. was freed for adoption.
II
SECTION 388 PETITION
Mother contends that the juvenile court erred by denying her section 388 petition.
A. Additional Factual Background
At the time of the section 366.26 hearing, Mother brought an oral section 388
petition. She submitted documentation that included a certificate of completion from
Desert Hope, which was a residential treatment program for alcohol and drug abuse
located in Las Vegas, Nevada. Mother participated in the program from May 25, 2013,
and was discharged (after successfully completing the program) on June 22, 2013.
Mother had an appointment for a psychological evaluation on July 24, 2013. Mother
submitted testimony that B.B. was happy to see her during visitation. Mother fed her and
bathed her when she had visits in T.A.’s home. Mother was looking for a job. She was
enrolled in an outpatient drug treatment program in Palm Desert. She was no longer with
Father.
Mother’s counsel argued that she had shown changed circumstances. Further, as
for B.B.’s best interests, she had only been with T.A. for six months. Mother maintained
visitation with B.B.
The juvenile court concluded that there were not changed circumstances. Mother
had a history of chronic substance abuse. She had only completed a 30-day program.
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She was just in the beginning of her rehabilitation. The juvenile court felt that Mother
was only “in the process of changing her life for the better.” Further, it was not in the
best interests of B.B. to grant the section 388 petition. B.B. had been out of Mother’s
custody since she was two months old. Mother was only someone who visited B.B. and
played with her. T.A. was providing all of the care for B.B. The juvenile court ruled,
“So I find no prima facie case, and I am going to deny the 388 on that basis.”
B. Analysis
“Section 388 allows a person having an interest in a dependent child of the court
to petition the court for a hearing to change, modify, or set aside any previous order on
the grounds of change of circumstance or new evidence.” (In re Anthony W. (2001) 87
Cal.App.4th 246, 250.) “‘[S]pecific allegations describing the evidence constituting the
proffered changed circumstances or new evidence’ is required. [Citation.]” (Ibid.) It
“shall set forth in concise language any change of circumstance or new evidence which
are alleged to require the change of order or termination of jurisdiction.” (§ 388, subd.
(a).)
A section 388 petition must state a “prima facie case in order to trigger the right to
proceed by way of a full hearing.” (In re Edward H. (1996) 43 Cal.App.4th 584, 592.)
“‘There are two parts to the prima facie showing: The parent must demonstrate (1) a
genuine change of circumstances or new evidence, and that (2) revoking the previous
order would be in the best interests of the children. [Citation.]’” (In re C.J.W. (2007)
157 Cal.App.4th 1075, 1079, 1081 [Fourth Dist., Div. Two] (C.J.W.).)
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“We review the juvenile court's summary denial of a section 388 petition for abuse
of discretion.” (In re Anthony W., supra, 87 Cal.App.4th at p. 250; see also In re Marcos
G. (2010) 182 Cal.App.4th 369, 382.) A section 388 petition is addressed to the sound
discretion of the juvenile court, and its decision will not be disturbed on appeal in the
absence of a clear abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
Even a showing of great effort to make improvements will not necessarily be
persuasive when a parent has an extensive history of drug use. (C.J.W., supra, 157
Cal.App.4th at p.1081 [affirming the denial of a section 388 petition when the parents’
efforts at drug rehabilitation were only three months old at the time of the section 366.26
hearing]; In re Casey D. (1999) 70 Cal.App.4th 38, 47-48 [affirming the denial of a
section 388 petition when the mother with an extensive history of drug use had been drug
free for only a few months and had not completed her treatment program]; In re Mary G.
(2007) 151 Cal.App.4th 184, 205-206 [mother’s very recent treatment for drug abuse and
bipolar disorder was not even a prima facie case of changing circumstances].)
Mother was only in the beginning process of her recovery. Mother admitted that
she started using marijuana daily when she was 15 years old. By the time she was 18
years old, she was using methamphetamine. Mother tested positive for
methamphetamine at the beginning of the dependency proceeding. Despite B.B. being
detained on March 12, 2012, Mother did not enroll in an outpatient treatment program
until April 3, 2012. She did not regularly attend the program. She also missed several
random drug tests. On October 1, 2012, Mother tested positive for methamphetamine,
and a hair follicle test conducted on October 19, 2012, was positive for
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methamphetamine. Mother did not enter an inpatient treatment program until May 25,
2013.
Mother showed little progress in eliminating her substance abuse problem.
Throughout the dependency process, she sporadically sought treatment. At the time of
the section 388 petition, she had only completed a three week treatment program. Mother
had shown that she could have moderate success but was subject to relapses. Mother
claims the juvenile court required Mother to show she had “changed” her circumstances.
However, Mother was barely showing “changing circumstances,” much less that she had
changed her circumstances. Mother failed to show a sufficient change in her
circumstances to support granting the section 388 petition.
Mother refers to her mental illness as the source of her drug problem. However,
the only evidence that she suffered from bipolar disorder or postpartum depression came
only from Mother’s statements. The Department felt that a proper mental health
evaluation for bipolar disorder could not be made due to her drug use. Mother never
independently sought a mental evaluation and only represented at the time of the section
388 petition that she had an appointment for a psychological evaluation. This was not
enough to show that she suffered from some mental illness, and even if it did, she had
done nothing to address her mental illness. This cannot support that she had shown her
circumstances were changing.
Moreover, it was not in B.B.’s best interests to grant the section 388 petition.
Although B.B. had only been in T.A.’s custody for six months at the time the section 388
petition was denied, T.A. continuously visited with B.B. during the proceedings.
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Moreover, B.B. and her sister A.B. were clearly bonded, and staying with T.A. assured
that sibling relationship would continue. It should be noted that there is nothing in the
record to support that Mother ever made any effort to regain custody of A.B. Remaining
with A.B., and in T.A.’s custody with whom the Department reported she was bonded,
was in B.B.’s best interests.
The juvenile court did not abuse its discretion in determining Mother had failed to
establish that her circumstances had changed, or were even changing, for purposes of
section 388. Accordingly, we reject Mother’s argument that the juvenile court erred in
denying her section 388 petition.
III
BENEFICIAL RELATIONSHIP EXCEPTION OF SECTION 366.26,
SUBDIVISION (c)(1)(B)(i)
Mother contends that the beneficial relationship exception applied to preclude
termination of her parental rights. At the section 366.26 hearing, Mother’s counsel asked
that the trial court consider legal guardianship instead of adoption. Mother never stated
that she wanted the juvenile court to apply any specific exception, including the
beneficial relationship exception in section 366.26, subdivision (c)(1)(B)(i). The juvenile
court could not find an “exception” that would compel it to order a legal guardianship in
lieu of adoption. The juvenile court freed B.B. for adoption.
The beneficial relationship exception applies where “[t]he parents have maintained
regular visitation and contact with the child and the child would benefit from continuing
the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) “The exception applies only where the
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court finds regular visits and contact have continued or developed a significant, positive,
emotional attachment from child to parent.” (In re Autumn H. (1994) 27 Cal.App.4th
567, 575.) This means that “the 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.” (Ibid.) The parents have the burden of proving that the
beneficial relationship exception applies. (In re Derek W. (1999) 73 Cal.App.4th 823,
826.)
A parent who fails to raise an exception to the termination of parental rights
below, waives the right to raise the issue on appeal. (In re Rachel M. (2003) 113
Cal.App.4th 1289, 1295; In re Erik P. (2002) 104 Cal.App.4th 395, 402-403.) “The
application of any of the exceptions enumerated in section 366.26, subdivision (c)(1)
depends entirely on a detailed analysis of the relevant facts by the juvenile court.
[Citations.] If a parent fails to raise one of the exceptions at the hearing, not only does
this deprive the juvenile court of the ability to evaluate the critical facts and make the
necessary findings, but it also deprives this court of a sufficient factual record from which
to conclude whether the trial court’s determination is supported by substantial evidence.
[Citation.] Allowing [a parent] to raise the exception for the first time on appeal would
be inconsistent with this court’s role of reviewing orders terminating parental rights for
the sufficiency of the evidence.” (In re Erik P., supra, 104 Cal.App.4th at p. 403.)
Mother never raised the beneficial relationship exception before the juvenile court.
By failing to do so, the juvenile court never evaluated whether Mother had been
consistent with visitation and whether B.B. was bonded to Mother, or assess the bond that
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B.B. had with T.A. Although the trial court addressed some of these issues in
conjunction with the section 388 petition, it did not assess the issue as it applied to the
exception in section 366.26, subdivision (c)(1)(B)(i). As such, Mother has forfeited the
argument on appeal.
Moreover, even if we were to consider the exception, and assume that she
maintained consistent visitation, clearly it was not in B.B.’s best interests to continue the
relationship with Mother. As extensively outlined, ante, Mother had a continuing
substance abuse problem, and B.B. was bonded to both T.A. and her sister A.B. Mother
did not establish that her “relationship [with B.B.] 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 Autumn H., supra, 27 Cal.App.4th at p. 575.) As
such, the exception does not apply.
IV
DISPOSITION
The juvenile court’s orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
HOLLENHORST
Acting P. J.
CODRINGTON
J.
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