Opinion
A153123
11-13-2018
In re D.B., a Person Coming Under the Juvenile Court Law. HUMBOLDT COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES, Plaintiff and Respondent, v. JOSHUA B. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. JV160181)
D.B. tested positive for methamphetamine at birth and was removed from her parents' care before she left the hospital. Both parents were chronic drug users. Neither actively engaged in services for the first four months of D.B.'s removal but engaged in services, including substance abuse treatment, for the following six months. The court ultimately terminated services because there was no substantial probability D.B. could be returned to their care by the 12-month review, then two months away. Parents petitioned for D.B.'s return or additional services. The court denied the petitions and terminated parental rights. We affirm.
I. BACKGROUND
A. Detention and Jurisdiction: July-August 2016
In July 2016, D.B. tested positive for amphetamine and methamphetamine at birth. Her mother, J.G. (Mother), tested positive for amphetamine, methamphetamine, and THC. Mother also admitted using an opioid pain medication during pregnancy. Mother received no prenatal care and was not prepared with baby supplies or a pediatrician to care for D.B. She was emotionally labile throughout her hospital stay, rapidly fluctuating from calm conversation to loud yelling on the same topics. She did not provide appropriate care for D.B. in the hospital—e.g., falling asleep while attempting to feed her—so D.B. was placed in neonatal care for her protection.
Five days later, the Humboldt County Department of Social Services (Department) filed a juvenile dependency petition on behalf of D.B. pursuant to Welfare and Institutions Code section 300, subdivision (b). The petition alleged D.B. was at risk of neglect due to Mother's substance abuse, mental health condition (labile mood), and failure to demonstrate she could provide basic infant care.
Undesignated statutory references are to the Welfare and Institutions Code.
When nurses called D.B.'s father, J.B. (Father), about the delivery, he responded with profanities. Father yelled at Mother that he did not have time to visit and she would have to deal with the situation she got herself into. Father visited D.B. in the hospital only briefly two or three times and never received instruction on how to care for D.B., who was showing symptoms of drug withdrawal. Father admitted he suspected Mother abused prescription drugs during pregnancy. He asked her to see a doctor, but she insisted taking prenatal vitamins was sufficient. Father claimed he last used methamphetamine in 2015. Father was concerned about Mother's erratic behavior and said she became very defensive if he raised the issue with her.
After inspecting Father's home, the Department tentatively decided to release D.B. to Father on the condition he not leave D.B. alone with Mother. However, Mother moved in with Father. When the Department objected, Father was apprehensive about making her leave, and Mother had no clear plan for where she would go. Moreover, Father presented with rapid "pursed" speech, and the narcotics given to Mother upon hospital discharge were gone after two days without explanation. The Department changed its recommendation to removal from both parents with reunification services.
The Department amended the petition to allege a risk of neglect by Father because Mother was living in his home. D.B. was discharged to a foster family in late July 2016, and the court formally detained her from Mother and Father's care on August 2. The court sustained the amended petition on August 25. B. Disposition: October 2016
D.B.'s two maternal half-brothers were in Mother's custody when D.B. was born (Nick, age 5; Gage, age 10). In the seven years preceding D.B.'s birth, the Department had received 15 referrals involving Mother. Of those assigned for investigation, four involved Nick and one involved Gage. She had been arrested in August 2015 for driving under the influence. Mother did not appear for D.B.'s jurisdiction and disposition hearings, and her appointed counsel was not in contact with her. Between July and September 2016, Mother arrived late to four visits with D.B. She failed to appear or call for three visits in late September, after which visits were suspended. At the end of September 2016, Mother's whereabouts were unknown to the Department.
D.B.'s paternal half-brother, Donald, was about seven years old when D.B. was born. In the six years preceding D.B.'s birth, the Department had received 12 referrals involving Father. Four of the five referrals assigned for investigation concerned Donald. Donald became a dependent child in 2010 due to neglect and domestic violence. Father received voluntary and family maintenance services and, after services were extended following a relapse, he ultimately retained custody of Donald. Father had convictions between 2000 and 2014 for possession of drugs and drug paraphernalia, taking a vehicle, assault with a deadly weapon, resisting a peace officer, vandalism, and burglary.
In September 2016, Father reported he and Mother were no longer an intact couple because he was "fed up" with her. He was working and looking for housing, as he had lost his apartment for allowing Mother to live with him. The Department initially recommended that D.B. be released to Father's sole care, but in late September Mother was again discovered at Father's home and claimed to be living there. Around this time, Father also questioned his paternity and said he was unsure he could care for an infant like D.B. He wanted three to six months of services "to get settled." After Father missed three consecutive visits with D.B in September, visitation was suspended. The Department changed its recommendation to removal from both parents with reunification services. The court followed the Department's recommendation on October 20, 2016. C. Termination of Reunification Services: June 2017
Mother eventually admitted she had used methamphetamine from her discharge from the hospital to mid-December 2016, and she used opiates in early December. In fact, at 38 years old, she had used hard drugs for 18 years: opiates for 15 years and primarily methamphetamine for the next three years, including six months of her pregnancy with D.B. When visits were reinstated in late October 2016, Mother missed several visits with D.B. When visits occurred, she needed prompting to engage with D.B. appropriately.
On December 14, 2016, Mother moved into clean and sober housing and stopped using drugs. In January 2017, she started the Healthy Moms Program (HMP), which provided parenting classes as well as mental health counseling and substance abuse treatment via group and individual therapy four days a week. She was very engaged in the program and showed insight and progress in regulating her emotions, but she was still in the early stages of more intensive therapy. She expected to graduate in August 2017. Mother also participated in Christian 12-step programs, A Journey Begins (two hours a week) and Celebrate Recovery (twice a week), and sometimes attended Narcotics Anonymous (NA) meetings. Mother tested positive for opiates once in February 2017, and otherwise tested clean for methamphetamine and opiates. She visited with D.B. consistently after January 6, 2017. As of March 2017, Mother was receiving reunification services for Nick and apparently did not have custody of Gage.
Father admitted he had used methamphetamine daily from 2014 until early December 2016. At 38 years old, he had used methamphetamine for 20 years except for two years around the time of Donald's 2010 dependency case. Father used methamphetamine while Donald was in his custody and was neglectful and abusive toward Donald as a result. Father did not engage in services in D.B.'s case before December, and he failed to appear for six visits from October to December 2016.
On December 1, 2016, Father went to San Diego to stay with a friend and get sober, leaving Donald with his paternal grandfather. Father stopped using drugs on December 2. That month, he attended ninety 12-step meetings and got a local sponsor; contacted D.B. and Donald every day; maintained weekly contact with the Department; took an online parenting course; and arranged for substance abuse treatment (Healthy Dads Program; HDP) and housing for his return to Eureka.
Father returned in January 2017, and he moved into clean and sober housing with Donald. He completed a parenting class in February, participated in HDP, and consistently tested clean. He also participated in the Celebrate Recovery program and worked with a sponsor. Father visited D.B. regularly from January 6 forward, and he requested and learned from the guidance he received during those visits. He also attended some of D.B.'s medical appointments. By June, he had applied for several subsidized family housing programs. Mother lived separately, but Father saw her in their common recovery programs.
In its six-month status report, the Department recommended six more months of reunification services for both parents. While acknowledging the parents' delay in engaging in services, the Department noted their recent progress and opined they would likely reunify if given additional services. Because the parents had frequent disagreements and yelled at each other in front of their children, the Department also recommended couples counseling, which was not yet part of their case plans. Minor's counsel (who represented Nick and D.B.) supported termination of services for D.B. and requested a contested hearing. Father asked for D.B.'s return or additional services, and Mother asked for additional services.
At a June 5, 2017 hearing, the court terminated both parents' services. The court found a serious risk of detriment if D.B. were returned because the parents were still early in their recovery and living separately. The court found the parents had not regularly participated in services and had made minimal progress in their case plans. There was no substantial probability D.B. might be returned by the 12-month date on August 25, 2017. (See §§ 361.49, 361.5, subd. (a)(1)(B).) While recognizing it had discretion to continue services, the court said it "does not believe that delaying setting a 366.26 on balance should be done. . . . [I]n circumstances when we have a child detained at birth[,] . . . consistently and regularly being involved in the progress [sic] is really the key." Father filed an untimely notice of intent to file a writ petition challenging the order. D. Termination of Parental Rights: November 2017
By July 2017, Mother, Father, and Donald had moved into Parents and Children in Transition (PACT) housing for 90 days with the possibility of a two-month extension, plus six months of aftercare. The PACT program provided parenting, budgeting and life skills counseling, connections to community resources, and support in finding permanent housing. They were doing well in the program. Father had been working in a Welfare to Work position since February doing maintenance at a housing complex. In August, he was hired with benefits, including family health insurance.
Mother graduated from HMP in August 2017, and she was attending two sessions of aftercare a week. She participated in Celebrate Recovery and met with her sponsor every week. Mother had tested negative for methamphetamine and opiates from March to August. Father completed HDP in May, attended 13 aftercare groups, and maintained contact with the counselor. He demonstrated a commitment to recovery and had become a mentor to others in the program. He participated in church activities, including Celebrate Recovery, five days a week; he attended AA/NA meetings; and he consistently tested clean for drugs. Mother and Father completed a parenting course in May. In August, they began couples counseling, where they discussed communication, conflict resolution, childhood trauma, and expressing affection. They both described the counseling as "very, very helpful."
Visitation logs for D.B.'s supervised visits with Mother and Father from July through September 2017, which sometimes occurred with Nick and/or Donald present, consistently stated the parents were focused, attentive, positive and affectionate with D.B., and D.B. was comfortable and happy with them, eagerly and affectionately interacted with them, sought out comfort from the parents, and appeared "bonded" with them. D.B. did not show significant distress when coming to or leaving visits.
In September 2017, Father and Mother filed section 388 petitions seeking either D.B.'s return or additional services. They cited their ongoing participation in services as changed circumstances and argued D.B.'s placement with her birth family would be in her best interest.
On about September 20, 2017, the Department started allowing Mother and Father unsupervised visits with D.B. The foster family and minor's counsel protested, and a hearing on the matter was heard by a different judge. The court confirmed the Department's discretion to allow unsupervised services pursuant to the case plan following termination of services. The Department loosely supervised the visits thereafter.
On October 2, 2017, during an unsupervised visit between Mother, Father, Donald and D.B., Mother was observed by the foster grandparents and a social worker (separately) on a public street yelling obscenities ("Fuck you") at Father or yelling at him with a red face and waving her hand while holding D.B. D.B. did not react or seem distressed. The social worker approached the couple shortly afterward, and the parents said they had been arguing about housing. They were cooperative and calm, and D.B. seemed content. Mother and Father testified that Mother had received a call about not getting a job, became upset, and yelled when she thought Father was dismissive. Father separated from Mother to help defuse the situation. The next day, they went to couples counseling and discussed the event and learned how they could have handled it better. The foster mother testified that D.B. showed distress after this visit but acknowledged D.B. might have overheard the foster family's animated conversation about the incident.
At the November 2017 combined section 388/366.26 hearings, Father testified that he had been hired as an on-site on-call maintenance person at an apartment complex and would move into a rent-free two-bedroom unit with the option of moving into a rent-free three-bedroom unit when one became available. Mother and Father planned to continue couples counseling through Father's health insurance policy. Mother's Celebrate Recovery sponsor testified Mother had become a totally different person through recovery. She became calmer and better at listening and expressing her feelings. Father's Celebrate Recovery counselor and sponsor both testified that Father was unusually open, honest, consistent and strong in his recovery, and he was being groomed for leadership in the program. His progress was "mind-blowing." Father was firm and understanding with Donald even when he misbehaved, and Donald received support through the recovery program. The PACT case manager testified that Mother and Father were loving and kind with D.B., Nick, and Donald, and D.B. seemed happy to see them, reaching out to them.
The Department submitted three reports: a section 388 report supporting the parents' petitions; a section 366.26 report recommending that, if the section 388 petitions were denied, the court should terminate parental rights; and an adoption assessment opining D.B. was adoptable and bonded to her foster parents, who were appropriate adoptive parents. Minor's counsel recommended denial of the section 388 petitions and termination of parental rights. Mother argued that, even if the section 388 petitions were denied, the parental and sibling relationship exceptions to termination of parental rights should apply.
The court denied the section 388 petitions and terminated parental rights. It found Father had shown changed circumstances, whereas Mother had shown changing circumstances, but critically the best interest of D.B. was to stay with the foster parents with whom she had formed a parental bond. While the court was troubled by the October 2, 2017 incident, the key factor was the shift in focus after termination of services to the best interest of D.B., who had spent her whole life with the foster family. The court found D.B. had insufficient bonds with Mother, Father, Donald or Nick to prevent termination of parental rights.
II. DISCUSSION
As a preliminary matter, we address Father's argument that it was improper for the Department to change its position on appeal. In the trial court, the Department recommended the court continue services at the six-month hearing and grant the parents' section 388 petitions. On appeal, the Department urges us to affirm the trial court's rulings to the contrary. Father cites cases holding that "litigants must adhere to the theory on which a case was tried. . . . To permit [a] change in strategy would be unfair to the trial court and the opposing litigant." (Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316; see Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 803, 810-811 [agency cannot challenge father's entitlement to services for the first time on appeal where father was appealing the termination of his services].) Here, the Department's position on appeal was argued in the trial court by minor's counsel, so there is no unfairness to the trial court or the parties. Moreover, minor's counsel joins in the Department's arguments on appeal, so Father was not prejudiced by the Department's change in position. A. Termination of Services
The parents also argue the Court Appointed Special Advocate (CASA) reports were biased. The court's rulings do not indicate it gave much weight to the CASA reports, and we have disregarded them in assessing whether substantial evidence supported the court's rulings.
Father argues the trial court erred in terminating his services at the six-month hearing. Although he did not file a timely writ petition to challenge the decision, he argues his attorney provided ineffective assistance of counsel by failing to do so upon his request, and by failing to seek relief from the late filing pursuant to California Rules of Court, rule 8.450(d). Father argues he was prejudiced because the trial court erred in terminating his services. The parties dispute whether Father may properly raise these issues on appeal or in a petition for a writ of habeas corpus. We need not address the procedural issues because we conclude the court acted within its discretion in terminating services.
We deny Father's related petition for habeas corpus (No. A154158) by separate order. Mother argues her attorney provided ineffective assistance of counsel by failing to file a writ petition challenging the order terminating her reunification services. Unlike Father, Mother has not shown she requested or authorized her counsel to file a writ petition and counsel failed to do so. In any event, Mother's ineffective assistance claim would fail for the same reasons Father's fails.
At the six-month hearing, "[i]f the child was under three years of age on the date of the initial removal, . . . and the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may schedule a hearing pursuant to Section 366.26 within 120 days. If, however, the court finds there is a substantial probability that the child, who was under three years of age on the date of initial removal . . . may be returned to his or her parent or legal guardian within six months . . . , the court shall continue the case to the 12-month permanency hearing." (§ 366.21, subd. (e)(3).)
"Thus, there are two distinct determinations to be made . . . . First, the statute identifies specific factual findings—failure to participate regularly and make substantive progress in the court-ordered treatment plan—that, if found by clear and convincing evidence, would justify the court in scheduling a .26 hearing to terminate parental rights. But this inquiry does not require the court to schedule a .26 hearing ('the court may schedule a hearing'). (§ 366.21, subd. (e), italics added; [citation].) . . . [¶] . . . Notwithstanding any findings made pursuant to the first determination, the court shall not set a .26 hearing if it finds either: (1) 'there is a substantial probability that the child . . . may be returned to his or her parent . . . within six months'; or (2) 'reasonable services have not been provided' to the parent. (§ 366.21, subd. (e).) In other words, the court must continue the case to the 12-month review if it makes either of these findings. However, the court is not required to set a .26 hearing even if it finds against the parent on both of these findings." (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 175-176.)
We review the court's factual findings for substantial evidence (see In re A.C. (2008) 169 Cal.App.4th 636, 652-653), and its discretionary determinations for abuse of discretion (see In re Corrine W. (2009) 45 Cal.4th 522, 532). We decide questions of law de novo. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 800.)
1. Regular Participation in Services and Substantial Progress in Case Plan
The court reasonably found that Mother and Father did not regularly participate in services, as it is undisputed they did not engage in services until December 2016, more than four months after D.B.'s birth and removal from their physical custody. Father questions whether a mere delay in engaging in services amounts to a failure to regularly participate, and he faults the Department for failing to cite legal authority on the issue. As the appellant and petitioner, however, Father bears the burden of showing trial court error and citing legal authority in support of his claims. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116.) He cites no legal authority in support of his interpretation of the statute.
In our view, "regular" plainly indicates that the parent must participate throughout the dependency period without significant lapses in time. Father argues such an interpretation provides no incentive for parents to participate after initial noncompliance with a case plan. He cites In re P.C. (2008) 165 Cal.App.4th 98, which holds that a detriment finding at removal does not necessarily carry over to termination of parental rights and states: "If that were true, then no parent would ever have the incentive to try to reunify with his or her child." (Id. at p. 106.) The case is inapposite on its facts, and the underlying concern about providing parents incentives to engage in services hurts Father as much as helps him: the juvenile court here was obviously concerned about providing parents whose children are removed at birth a strong incentive to engage in services from the start of the dependency case rather than letting months go by before they decide to engage.
Father argues his participation in services should be measured from the disposition hearing in October 2016, when he was first presented with a formal case plan, not from the time of D.B.'s initial removal. Under this view, he delayed just over a month before engaging in services, not four months. However, in its August 2016 addendum to the detention report, the Department clearly informed Father he needed to engage in services in order to reunify with D.B., specifically mentioned parenting classes and safe housing, and referred Father to relevant service agencies. The Department did not then specifically recommend substance abuse treatment, but Father had not yet disclosed he was still using methamphetamine (he denied ongoing use in July). In any event, the referrals included HDP, where Father ultimately engaged in substance abuse treatment. Moreover, Father had engaged in services in Donald's 2010 case, so he was not unfamiliar with reunification expectations. Father's proposed approach would reward parental engagement delays and is inconsistent with the legislative policy of expeditious reunification efforts, particularly for children under three.
Father argues the evidence clearly establishes his substantive progress in compliance with his case plan, and he faults the trial court for relying in part on the failure to complete couples counseling as a reason to terminate services, as couples counseling was never part of his formal case plan. The trial court, however, did not need to find a failure to make substantive progress in the case plan before it could terminate services. Its finding that Father failed to regularly participate provided a sufficient basis for setting a section 366.26 hearing. (§ 366.21, subd. (e)(3).)
2. Substantial Probability of Return
The trial court also reasonably found there was no substantial probability that D.B. might be returned by August 25, 2017, the 12-month benchmark—a date only two months after the final six-month hearing. Earlier in June, Father had testified his current housing was not appropriate for D.B. and it would take three to 12 months to obtain subsidized family housing. Moreover, there was evidence of continuing instability in parents' relationship, who were still early in their recovery, as the Department acknowledged. The parents were not living together and had frequent disagreements with yelling in front of the children. Father acknowledged that, in February 2017, he "may have" walked out of a medical appointment in frustration after D.B. reached out to the foster mother for comfort. Father testified that he was "accountable and honest" about his methamphetamine use in July 2016 and that he and Mother were in an intact relationship in the fall, but these representations are inconsistent with the Department's records. Father denied understanding Mother's mental health issues, but nevertheless insisted she had done a "180 turnaround" since she stopped using drugs. For her part, Mother explained her newfound sobriety in part by saying using drugs "wasn't fun for me anymore," and she minimized Nick's reluctance to visit with her by saying he simply wanted to play outside or be with his friends. The parents' disclosures of long-term drug abuse during the hearing also demonstrated less than complete honesty with the Department, so the court could reasonably have some skepticism of their self-reports of recovery. In sum, substantial evidence supported a finding that their self-proclaimed recovery was early and tentative, and thus there was no substantial probability D.B. might be returned to the custody of either by August 25.
We are unpersuaded by Father's claims of error with respect to the substantial probability finding. Father first suggests the court misunderstood that the test at the six-month hearing is a substantial probability the child may be returned, rather than a substantial probability the child will be returned—the standard that applies at the 12-month hearing. (See M.V. v. Superior Court, supra, 167 Cal.App.4th at pp. 180-181.) We disagree. In explaining from the bench its reasoning, the court identified the correct standard, and its findings were incorporated in the signed order.
Father also argues the court erroneously declined to apply the substantial probability standard because D.B. was detained at birth. While discussing substantial probability of return, the court said: "There have been periods of levelling off or doing well and then there have been relapses in the matter that have affected the quality their half-siblings have received. Also in this case, the Court's not applying that standard because in this case the child was detained at birth and that it's not—there's not a substantial relationship at this time." (Italics added.) It is not clear what the court meant by "that standard" in the second sentence, but it could not have been the substantial probability of return standard because the court had just clearly ruled "the Court is not making a finding of substantial probability of return" in D.B.'s case.
Finally, Father argues it was error for the trial court to rely on his history of relapses to conclude he was unlikely to reunify with D.B. If relapses precluded reunification, he argues, the Legislature would have provided for a bypass of services for all chronic drug abusers with a history of relapse. (Cf. § 361.5, subd. (b)(13) [bypass for chronic drug users who have repeatedly resisted treatment].) The court, however, did not rely on a history of relapses alone. Other critical factors were Father's four-month delay in engaging in services, continuing instability in the parents' relationship and housing where the parents intended to assume joint custody of D.B., and questions about the parents' credibility.
3. The Trial Court's Exercise of Discretion
The findings of no regular participation in services and no substantial probability of return, which we find were supported by substantial evidence, provided the trial court with the discretion to terminate services. (§ 366.21, subd. (e)(3); In re M.V., supra, 167 Cal.App.4th at pp. 175-176.) The court expressly recognized it also had the discretion to continue services. It explained its decision to terminate services in part because D.B. had been removed at birth: "when we have a child detained at birth[,] consistently and regularly being involved in the progress [sic] is really the key." This position is consistent with the statutory scheme, which permits earlier termination of services for children under three. (§ 361.5, subd. (a)(1)(B).)
Father argues it was error to consider the nature of the parent-child relationship at the six-month hearing, but we see no abuse of discretion. The shortened timelines applicable to children under three reflect a legislative determination that a lengthy reunification period is less justifiable in the case of a "very young child with limited parental relationship." (Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 846, italics added.) It follows that a court may properly consider the nature of the parent-child relationship when considering whether there is a sufficient probability of return to warrant further delay in permanency for the child. Father argues that, if the nature of the relationship was so critical, he was denied reasonable services because his visitation was insufficient to allow him to develop a more significant relationship with D.B. Even if visitation had been more liberal, however, D.B. would have naturally developed a stronger bond with her daily caretakers, the foster family, than with the natural parents she saw only periodically. The critical facts that limited D.B.'s relationship with her natural parents were her removal at birth due to parents' neglect, and her continued removal for a full year due to parents' late participation in services and continuing instability. Increased visitation would not have changed those facts.
In sum, while we agree this was a close case, the court reasonably terminated services at the six-month hearing in light of the parents' long histories of substance abuse, Mother's mental health issues, lack of family housing, and instability in the marital relationship where the parents intended to assume joint custody. B. Denial of Section 388 Petitions
Father and Mother argue the court erred in denying their section 388 petitions. We conclude the court did not abuse its discretion in doing so.
A parent may petition the court to change a prior court order based on a change of circumstance. (§ 388, subd. (a)(1).) The court may grant the petition only if it finds circumstances have materially changed and the proposed change in the order would promote the best interests of the child. (See § 388, subd. (d); In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) The petitioner has the burden of proving both changed circumstances and the child's best interests. (Kimberly F., at p. 529.) "The 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 Jasmon O. (1994) 8 Cal.4th 398, 415.)
After reunification services are terminated, the focus of a dependency case shifts from reunification to providing a permanent, stable placement for the children. (In re Marilyn H. (1993) 5 Cal.4th 295, 304.) Nevertheless, a parent may file a section 388 petition seeking reunification before the section 366.26 hearing is held. Such a petition serves as an " 'escape mechanism,' " guaranteeing parents due process by allowing the court to consider new information supporting their right to custody of their children before a final termination of parental rights. (Id. at p. 309.) In re Kimberly F. proposes the following factors as relevant to an assessment of a child's best interest in the context of a section 388 petition after termination of services: "(1) the 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." (Kimberly F., at p. 532, italics omitted.) Other courts have criticized the Kimberly F. test as insufficiently emphasizing the child's interest in permanence and stability. (In re J.C. (2014) 226 Cal.App.4th 503, 527; see In re G.B. (2014) 227 Cal.App.4th 1147, 1163.) Regardless of which standard we apply, we conclude the court did not abuse its discretion.
Parents had lengthy histories of chronic drug abuse and a history of recurrent dependency court intervention. Before December 2016, Father used methamphetamine for 20 years with two years of reported sobriety, and Mother used opiates or methamphetamine for 18 years with no reported period of complete sobriety. Because chronic drug abuse is a serious problem that is not easily ameliorated, courts have frequently affirmed the denial of section 388 petitions based on short periods of sobriety (less than a year) when a child has been removed at a very young age. (See, e.g., In re Ernesto R. (2014) 230 Cal.App.4th 219, 223-224 [no ineffective assistance of counsel because § 388 petition would have been futile; child detained at birth].) The October 2, 2017 incident was evidence of continuing instability in the family unit, and Mother's demeanor on the witness stand at the section 388/366.26 hearing—becoming markedly defensive and argumentative when cross-examined about the incident—provided additional evidence of volatility. While Father's obtaining permanent employment with benefits and rent-free family housing was an admirable achievement, it was no guarantee against a relapse and associated child neglect. Moreover, while D.B. had a positive and affectionate relationship with Mother and Father, her parental bond was with the foster parents. The trial court did not abuse its discretion in determining that the parents' progress, while significant, did not sufficiently promise permanence and stability for D.B. to justify depriving her of the permanence and stability promised by adoption by the foster parents.
Father argues the court seemed to erroneously believe it had no discretion to grant his section 388 petition. He cites the court's statements that "I woke up every morning wanting to" grant the petitions and "[i]f I could have, I would have. But I ultimately have to follow the law." In context, the court's reference to "follow[ing] the law" clearly meant honestly assessing D.B.'s best interests in the exercise of its discretion. Despite its understandable reluctance, the court decided that it could not honestly determine reunification was in D.B.'s best interest and concluded D.B. should be freed for adoption. The court affirmed that conclusion by saying, "I do believe that that's the right decision."
The parents argue the October 2, 2017 incident was an insufficient ground to deny the petition. We agree that a single incident of parental conflict in public with use of profanity, where the children were not placed in danger and showed no signs of emotional distress, would not be a sufficient ground for assuming jurisdiction, removing a child from a parent's care, or denying a petition for reunification. The question before the court, however, was whether all of the circumstances—including the parents' lengthy histories of chronic drug abuse, severe neglect of D.B. at birth, substantial delay in engaging in services, substantial delay in establishing a stable family home, and continuing conflict—demonstrated it was in D.B.'s best interest to extend the dependency case in the hope that parents might permanently reunify with her. While it may well not have been an abuse of discretion to grant the petitions, we cannot conclude that the court abused its discretion in denying them.
The parents' other arguments are meritless. Father argues the adoption assessment was flawed, and therefore did not constitute substantial evidence supporting the court's ruling. The parents further argue the court erred in crediting adoption assessment's description of the strength of D.B.'s attachment to the foster family, while failing to credit the Department's expert opinion that it would be in D.B.'s best interest to reunify with her natural parents. We see no conflict between adoption assessment's and the Department reports' descriptions of the bond between D.B. and the foster family. The parents fault the trial court for commenting that the parents provided no independent evidence that granting their petitions was in D.B.'s best interest. We do not read the court's comment as implying the parents were required to present such independent evidence; rather, the court was simply summarizing the evidence before it as it explained its ultimate ruling. Mother argues the court erred in comparing Mother and Father to the foster home. However, the court did not make an inappropriate comparison of the socioeconomic status of the two families. (See In re Kimberly F., supra, 56 Cal.App.4th at p. 529.) Instead, it compared D.B.'s bond with the two families, which is directly relevant to an assessment of her best interests. (Id. at p. 532). C. Termination of Parental Rights
We agree, however, the adoption assessment, which was signed July 27, 2017, erroneously stated "there is agreement that the parents are not able to maintain the care and support of [D.B.]." The Department supported the parents' section 388 petitions and supported termination of parental rights only if the petitions were denied. At the start of the section 388/366.26 hearing, the Department's counsel noted the adoption unit is independent from the rest of the Department and plays a different role from the reunification unit that works with the family on an ongoing basis. Nevertheless, the trial court twice criticized the Department for an apparent inconsistency in its recommendations. We believe the adoption assessment is more accurately read as supporting termination of parental rights only if the section 388 petitions were denied and not as contradicting the Department's position on the petitions. However, there was no prejudicial error. The Department's assessment of D.B.'s best interest was simply its expert opinion on a matter that was ultimately up to the court to determine. Any conflict between the adoption assessment and other Department reports in no way undermined the court's resolution of the best interest issue.
1. Parental and Sibling Relationship Exceptions
We reject the parents' argument that the parental relationship exception to termination of parental rights applied in this case, and Mother's argument that the sibling relationship exception applied.
At a section 366.26 hearing, the juvenile court must determine by clear and convincing evidence whether it is likely the dependent minor will be adopted. (§ 366.26, subd. (c)(1).) If the court finds a likelihood of adoption, the court must terminate parental rights and order the child placed for adoption unless, as applicable here, it finds a "compelling reason" that termination would be detrimental to the child under one of the exceptions listed in section 366.26 subdivision (c)(1)(B). A party arguing that one of those exceptions applies has the burden of producing evidence that establishes the exception. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343 [discussing former § 366.26, subd. (c)(1)(A), predecessor of § 366.26, subd. (c)(1)(B)(i)].)
Under the beneficial parental relationship exception, the court must find a "compelling reason" that termination would be detrimental to the child because "[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 existence of interaction between the natural parent and child will always confer some incidental benefit to the child." (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342.) The beneficial parental relationship exception requires more, "that the parent-child relationship promote the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents." (Ibid.)
To apply the sibling relationship exception, the court must find a compelling reason for determining termination of parental rights would be detrimental to the minor because it would cause "substantial interference with a child's sibling relationship . . . as compared to the benefit of legal permanence through adoption." (§ 366.26, subd. (c)(1)(B)(v).) "To show a substantial interference with a sibling relationship the parent must show the existence of a significant sibling relationship, the severance of which would be detrimental to the child." (In re L. Y. L., supra, 101 Cal.App.4th at p. 952, fn. omitted.) "In enacting this exception, the legislature was concerned with preserving long-standing relationships between siblings which serve as anchors for dependent children whose lives are in turmoil." (In re Erik P. (2002) 104 Cal.App.4th 395, 404.)
A parent has standing to raise the appellate issue of whether the sibling relationship exception should have been applied by the juvenile court. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 951.)
"We apply the substantial evidence standard of review to the factual issue of the existence of a beneficial parental relationship, and the abuse of discretion standard to the determination of whether there is a compelling reason for finding that termination would be detrimental to the child." (In re Anthony B. (2015) 239 Cal.App.4th 389, 395.)
For the reasons already discussed, the court did not abuse its discretion in ruling that the strength of D.B.'s bond with Mother and Father was insufficient to outweigh D.B.'s interest in the permanency of adoption with a foster family to whom she already had a parental bond. The court also did not abuse its discretion in ruling that the strength of D.B.'s relationships with Nick and Donald were insufficient to outweigh the permanency of adoption. Although D.B. showed delight in visiting with her half-siblings, she had never lived with them and did not visit with them on a regular weekly basis. The nature of their relationship was simply insufficient to counterbalance the strong legislative preference for adoption as a permanent plan, and it likely would have been an abuse of discretion for the court to apply the sibling exception on this record.
2. Conflict of Interest for Minor's Counsel
Mother argues minor's counsel had a conflict of interest because he represented both D.B. and Nick in their respective dependency proceedings. The parties dispute whether Mother has standing to raise this issue and, if so, whether she forfeited the argument by failing to raise it below. We need not address these procedural arguments because we conclude Mother has failed to demonstrate minor's counsel had a disabling conflict of interest.
"When first appointing counsel in a dependency matter, the court may generally appoint a single attorney to represent all the siblings. It would have to appoint separate attorneys if, but only if, there is an actual conflict among the siblings or if circumstances specific to the case—not just the potential for conflict that inheres in all multisibling dependency cases—present a reasonable likelihood an actual conflict will arise. . . . After the initial appointment, the court will have to relieve counsel from multiple representation if, but only if, an actual conflict arises." (In re Celine R. (2003) 31 Cal.4th 45, 58.)
Mother argues that minor's counsel's advocacy of adoption for D.B. undermined Nick's plea for reunification. However, this is a potential argument for prejudice in Nick's case, assuming he did not successfully reunify with Mother, not in D.B.'s case. Mother does not and cannot reasonably argue that minor's counsel's advocacy of reunification for Nick undermined D.B.'s plea for adoption, as D.B. successfully obtained adoption as her permanent plan. In any event, minor's counsel's arguments were not self-contradictory: counsel apparently argued in favor of reunification for Nick because he was an older child with an established bond with Mother, which outweighed the risk that reunification would be unsuccessful; he argued for adoption for D.B. precisely because of the lack of such a preexisting parental bond. Neither argument undermined the other minor's position before the court.
III. DISPOSITION
The order terminating parental rights is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
SIMONS, Acting P. J. /s/_________
NEEDHAM, J.