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In re J.C.

California Court of Appeals, Fourth District, Third Division

May 6, 2014

In re J.C., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
v.
M.C., Defendant and Appellant.

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Appeal from orders of the Superior Court of Orange County No. DP021151, Jacki C. Brown, Judge.

COUNSEL

Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.

Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for Minor.

O’LEARY, P. J.

J.C.’s mother M.C. (Mother) appeals from the termination of her parental rights.[1] On appeal, she maintains the court erred in denying her Welfare and Institutions Code section 388 modification petition (hereafter 388 petition)[2] and should have applied the “parental benefit exception” to adoption. (see § 366.26, subd. (c)(1)(B)(i).) We conclude both contentions lack merit and we affirm the orders.

I

A. Detention

On April 25, 2011, the Orange County Social Services Agency (SSA) placed a hospital hold on J.C. following her birth based on allegations of general neglect. Several months earlier, in February 2011, Mother’s three other children were declared dependent children of the juvenile court pursuant to section 300, subdivision (b). The juvenile court detained J.C. based on evidence Mother had made inadequate progress in her open family reunification case plan with respect to J.C.’s siblings. Mother’s substance abuse was unresolved, she inconsistently drug tested, she received sporadic prenatal care, and she did not have provisions to care for her newborn.

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In its detention report, SSA provided information about several prior child abuse referrals. The first child abuse referral dated back to March 2007 for general neglect due to Mother’s drug addiction. The allegations were deemed “unfounded” after further investigation. However, the second child abuse referral, dated October 2008 for general neglect, was substantiated. Mother had missed numerous medical appointments and echocardiograms scheduled for her then two-year-old daughter, G.C., who was born with a hole in her heart (a condition called Patent Ductus Arteriosus). Mother received family maintenance collaborative services from October 22, 2008 to April 22, 2009, when services ended because Mother moved to San Bernardino County.

There was a third child abuse referral, dated April 1, 2009, alleging general neglect due to Mother’s drug addiction and a dirty home. The allegations were deemed unfounded. A child abuse referral in San Bernardino County, dated June 6, 2010, was deemed inconclusive after the social worker was unable to locate the family to investigate the allegations of child abuse and Mother’s drug use.

However, on August 18, 2010, a child abuse referral alleging general neglect was substantiated. This referral resulted in then two-year old A.C. and seven-year-old M.C. being taken into protective custody. The petition in the siblings’ case alleged Mother left M.C. and A.C. without provisions, emergency contact information, medical information, or information about when she would return. The children’s maternal aunt stated Mother dropped off M.C. and A.C. at the apartment she shares with maternal grandmother. Mother told maternal aunt she was homeless and unable to care for the children. Maternal aunt told the social worker she and maternal grandmother were also unable to care for the children and Mother has used methamphetamine for several years.

The petition as to J.C.’s siblings also discussed Mother’s history of substance abuse and alleged she had been arrested on February 18, 2008, for possessing a controlled substance and paraphernalia. The petition also mentioned the June 6, 2010, child abuse referral, alleging Mother was living with her children in an unsafe environment; the home had trash, broken windows, and no running water. The petition alleged Father had an unresolved substance abuse problem.

The social worker reported Mother had a brief criminal history that included drug-related offenses. Father had an extensive criminal record that included robberies, burglaries, carjacking, and multiple drug-related offenses.

The petition regarding J.C. contained allegations of general neglect based on Mother’s lack of adequate progress in her open family reunification case

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plan concerning her other children. Although she had participated in counseling and parenting classes, she had yet to address her methamphetamine addiction. She had missed many drug tests. She had no tests in January, two tests in February, and one test in March. Mother refused to take any responsibility for why the siblings had been taken into protective custody and instead blamed the maternal grandmother’s lack of English skills. The petition alleged Mother did not have any provisions to care for J.C.

On April 28, 2011, the juvenile court ordered J.C. detained and gave Mother daily monitored three hour visits. J.C. was placed with her maternal aunt, Jessica. On June 20, 2011, Mother and Father pled no contest to, and the juvenile court sustained, an amended jurisdictional petition detailing Mother’s unresolved drug abuse issues, failure to obtain regular prenatal care, and the siblings’ open dependency case. The court declared J.C. a dependent and granted both parents reunification services. The six-month review hearing was set for December 6, 2011.

B. J.C.’s First Six Months

During this review period, Mother made minimal progress in addressing her drug addiction. After spending approximately one month in a residential drug program (Heritage House North), Mother admitted leaving the program and returned to using drugs from May 10 to June 13, 2011. She stayed with her friend, Vanessa. Mother then enrolled in and completed Casa Elena’s residential 90-day drug rehabilitation treatment program. Upon completion of this program, she again relapsed for over a month (September 10 to October 26, 2011), and in October she returned to the Heritage House North.

During this period of turmoil, Mother had sporadic monitored visits with J.C. In May, she had five visits, each lasting for three hours. In early June, Mother had three visits, each lasting three hours, and after she entered Casa Elena she could not leave the program for visits. Jessica brought J.C. to Mother once a week for two hours on Sundays in July, August, and September 2011. The caretaker reported Mother acted appropriately with the baby and was attentive to J.C.’s basic needs. After leaving Casa Elena on September 10, Mother could have visits three times a week for three hours. However, Mother only visited J.C. twice in October during her drug relapse. After Mother entered Heritage House North, visits resumed to once a week for two hours.

The social worker recommended in her report filed December 6, 2011, that the court terminate reunification services and schedule a permanency hearing (hereafter.26 hearing). The social worker opined Mother loved J.C. but she did “not appear to be motivated, or willing, to care for a child, of a tender age

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of [six] months. When [Mother] was not in a residential drug treatment program, she demonstrated very little initiative in her willingness to want to bond with the child, as her visits with the child were minimal to none. More so, the undersigned recognizes [Mother] has had a long pattern of leaving her children with others. The undersigned does not anticipate that this pattern will change.”

On December 6, 2011, the juvenile court (Commissioner Jane Shade) accepted the parties’ stipulation to continue the six-month review hearing to January 11, 2012. Mother’s monitored visits were increased to three times per week, each lasting three hours. SSA reported Mother’s visits were consistent and “going really well.”

On the day of the January 11, 2012 hearing, the social worker filed an addendum report changing her recommendation to continue reunification services. Mother had been sober for 45 days while staying at Heritage House North. She was participating in narcotics anonymous (NA) meetings, counseling, and focus groups. Mother spent New Year’s Day with all four of her children and Mother reported her relationship with other family members had improved. Mother stated she was committed to having her children returned to her care and realized she could no longer be in a relationship with Father. The social worker explained she changed her recommendation and liberalized visits to unmonitored status because of the following: (1) Mother’s renewed efforts at addressing her drug addiction; (2) all the professionals spoke highly of Mother’s progress in the program; and (3) Mother’s visits with all the children had been very good.

On January 11, 2012, the juvenile court continued reunification services and scheduled a 12-month review hearing for June 6, 2012. As we will explain, this hearing was continued multiple times and did not conclude until nearly a year later on April 4, 2013.

C. 12-Month Review Hearing Continued for 12 Months (2012 through 2013)

By the end of this review period, J.C. was 20 days shy of her second birthday. During this lengthy review period, SSA filed a total of 11 reports, each containing the same recommendation that the court terminate reunification services and schedule a.26 hearing. Over this year-long period, J.C. continued to thrive and become more strongly bonded to her primary caregiver, Jessica, who was her maternal aunt. Despite SSA’s recommendations and the undisputed evidence of a stable and loving parental bond with Jessica, Commissioner Shade continued the 12-month review hearing four times before the case was transferred to Judge Jacki C. Brown in October 2012.

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Judge Brown continued the case an additional six months from October 2012 to April 4, 2013. At the 12-month review hearing, held during the 24th month of these dependency proceedings, the court terminated Mother’s services but continued funding for services and authorized overnight visits. The court indicated to Mother there was still a chance she would regain custody. This proved to be untrue.

Below is a brief summary of only the facts relevant to the issues presented by Mother’s 388 petition and parental benefit exception argument. Mother did not do well with her case plan for the first two months of this review period. On February 15, 2011, Mother was discharged from Heritage House North for petty theft. The social worker learned mother was on a walking pass with another resident and they went to a store. The other resident was arrested for shoplifting and Heritage House North’s staff members determined Mother stole toothpaste from the store and “was not truthful.” After learning of this incident, the social worker informed Mother her visits with J.C. would now be supervised. This meant Mother had enjoyed only one month of unmonitored visits during the entire first year of the dependency proceedings.

For a few weeks in February 2012 Mother resided with her friend Vanessa. On February 22, 2012, Jessica reported Mother had been drinking and she was concerned about Mother’s coping skills. Jessica stated Mother left her visit with J.C. early to visit a sick cousin in the hospital. Several hours later at the hospital, Jessica noticed Mother smelled like alcohol and Mother admitted she “drank one” with Father. The social worker reduced supervised visitation to once a week.

On March 5, 2012, Mother enrolled in the Foley House six-month residential treatment program. She tested positive for methamphetamines upon intake to the program. Mother admitted she was with Father during the prior weekend. Because Foley House could not support Mother’s family reunification efforts, she left the program on March 16, 2012, and on April 6, 2012, she enrolled in the Woodglen Recovery Junction (Woodglen) residential drug program. This turned out to be an excellent decision and marks the point in time where Mother began to turn her life around for the better. The same month, in 2012, J.C. celebrated her first birthday.

After successfully completing the Woodglen program on September 17, 2012, Mother moved to Collette’s Children’s Home Transitional Living Program for single women (Collette’s Home). She found full-time employment, began saving for a down payment for her own residence, and took multiple parenting classes. She had clean drug tests, attended NA meetings, and developed a support system from staff and friends at the Woodglen program.

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SSA’s addendum reports all continued to recommended termination of reunification services and for the court to schedule a.26 hearing. SSA’s first report prepared for the 12-month review hearing in June 2012 discussed Mother’s multiple relapses and concluded her compliance with the case plan requirements to be moderate and inconsistent. The social worker reported that after the shoplifting incident Mother had monitored visits three times per week for three hours. This was reduced on February 22, 2012, after Jessica discovered Mother had been drinking. Thereafter, Mother was permitted supervised visits one time per week for three hours.

The social worker opined Mother loved J.C. but showed “very little initiative in her willingness to want to bond” with J.C. The social worker stated Mother had a long historical pattern of leaving her children with other people. She stated, “The undersigned believes [Mother] is content in knowing that the child is being well cared for by the maternal aunt, Jessica... and has never voiced that she is opposed to this arrangement as a permanent plan. [Mother] acknowledges that she recognizes that the child is bonded to [Jessica].”

In later reports, SSA reported Mother was making great progress with her drug rehabilitation efforts and had found full-time employment. The social workers also reported on visits between Mother and J.C. From April to the end of July 2012, Mother visited J.C. for one hour on Sundays at Woodglen and visits were supervised by Jessica. In August, visits were increased to two hours at J.C.’s home and were supervised by Jessica. Jessica reported Mother was appropriate during visits and attentive to J.C.’s needs. J.C. “goes freely to” [M]other and will hug her. In October 2012, Jessica reported the two hour visitation was ample time because “[Mother] appears ready to go towards the end of the two hour visit and [J.C.] is usually getting ready for a nap.”

By November 2012, Mother’s visits were increased to twice a week for two hours. Jessica monitored the visits on Fridays, and staff at the Orangewood Children’s Home (Orangewood) monitored the visits on Sundays. Jessica reported Mother visited consistently but she was sometimes late because she took the bus. Jessica stated Mother was attentive to J.C.’s needs but “appears ready to return the child to [Jessica] after two hours.” Orangewood staff reported Mother played with J.C., changed her diaper, and gave her snacks.

In November 2012, Mother told the social worker that Collette’s Home agreed to give her family housing if her children were returned. Mother stated she would be overwhelmed if all four children were returned. She requested overnight visits with J.C. and to then have J.C. returned to her care for some

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time before the other children returned. Mother admitted she did not know how she would be able to work, take the children to and from school, find day care, attend 12-step meetings, and consistently drug test.

The social worker authorized an additional day of supervised visitation. Mother visited J.C. twice a week from 3:30 p.m. to 5:30 p.m. at Collette’s Home and Sunday mornings at Orangewood. For the two mid-week visits, a social worker transported J.C. from her day care to Mother. She reported Mother was attentive to J.C.’s needs, was affectionate, played with her, and changed diapers. When J.C. was tired at the end of visits, Mother would cuddle, talk and sing to her.

In January 2013, a different social worker, Stacy Metcalf, was assigned to the case. Metcalf visited Jessica and J.C. and determined the child was being well cared for. Jessica reported J.C. was a happy and well adjusted toddler. J.C. enjoyed visits with Mother and her siblings.

Metcalf also visited Mother who said she was surprised she had been able to maintain her sobriety for seven months, work full time, diligently work on her 12-steps, and go to NA meetings. Mother stated she recognized some of her triggers and had taken proactive steps to avoid a relapse. Metcalf asked Mother about a diluted drug test (considered positive by the testing facility MEDTOX) submitted on December 28, 2012, and whether she had contact with Father on December 30, 2012. The social worker determined Mother’s explanation was not plausible and decided future visits would be monitored.

Jessica stated Mother had an extended visit with J.C. on January 1, 2013, that raised some questions about Mother’s ability to care for J.C. on a long-term basis. Jessica stated Mother and J.C. went to a relative’s home for a party and to give Mother an additional visit. Jessica stated Mother cared for the child for two to three hours, but when this time period was over, she “ceased caring for the child.” Jessica said she told Mother she was frustrated and concerned Mother did not take advantage of the extra time she had with her daughter. Jessica explained that while she was cooking, Mother stopped paying attention to J.C. and got “more carried away with her phone.” Jessica stated that while she was cooking she ...


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