San Bernardino Cnty. Children & Family Servs. v. K.S. (In re R.H.)

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In re R.H., a Person Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. K.S., Defendant and Appellant.

E083656

California Court of Appeals, Fourth District, Second Division

October 1, 2024

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County. No. J283368 Steven A. Mapes, Judge. Affirmed.

Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant.

Tom Bunton, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.

OPINION

RAMIREZ P. J.

Defendant and appellant K.S. (mother) appeals the San Bernardino County juvenile court's Welfare and Institutions Code section 366.36^[1] order terminating her parental rights as to her child, R.H. We will affirm.

BACKGROUND

A detailed account of the procedural and factual history of the section 300 proceedings up to and including adjudging R.H. a dependent of the court is set forth in our opinion issued in mother's prior appeal. (In re R.H. (May 26 2023, E079932) [nonpub. opn.].) Suffice to say here that R.H was three years old in November 2019 when his sibling (baby girl S.) was born with methamphetamine in her system and taken into protective custody at the hospital by respondent San Bernardino County Department of Children and Family Services (the Department). The Department filed section 300 juvenile dependency petitions on behalf of R.H. and baby girl S.

For the next 31 months, mother and S.H. (father), refused to disclose R.H.'s whereabouts. In the meantime, baby girl S. had been adjudged a dependent of the court and after unsuccessful efforts to engage the parents in family reunification services the juvenile court issued an order terminating parental rights as to her.

In July 2022, R.H. was found, taken into protective custody, and placed with the G family. At the September contested hearing on jurisdiction, the juvenile court sustained an amended section 300 petition, including allegations that mother had a substance abuse problem from which she had failed or refused to rehabilitate, and she and father have a history of engaging in domestic violence with one another. In October, the court adjudged R.H. a dependent of the court, removed him from parental custody, and continued his placement in the G's home. Family reunification services were bypassed and the court found it would be in R.H.'s best interest to consider termination of parental rights. It ordered weekly two-hour supervised visits for the parents and R.H.

Mother and father timely appealed the juvenile court's findings and orders on jurisdiction and disposition. We affirmed. (In re R.H., supra, E079932.)

In the period between the disposition hearing and the resolution of the parents' appeal, the court designated the G family as holders of R.H.'s educational rights and granted their request for de facto parent status. Also during that time, mother and the father traveled to Nevada, where mother gave birth to another child, baby girl A., who was born with a positive toxicology for methamphetamine and amphetamine. Baby girl A. was taken into custody in Nevada and transferred to the Department's care. She was placed with the G family. The court adjudged her a dependent of the juvenile court and family reunification services were bypassed. In September 2023, the court terminated the parents' rights as to baby girl A. and she remained in the G home with R.H.

In September 2023, the court set a section 366.26 hearing to select a permanent plan for R.H. Three days before the contested hearing, mother filed a section 388 petition requesting an order for family reunification services or return of R.H. to her care with family maintenance services. The Department filed arguments in opposition. At the hearing to determine whether to hold an evidentiary hearing, the court found the petition did not reflect substantial change in mother's circumstances and that granting it would not be in R.H.'s best interest.

After denying mother's petition, the court held a contested hearing to select a permanent plan for R.H. Mother testified that she and R.H. shared a really strong bond and asked the court to consider a legal guardianship or other lesser permanent plan. The court found R.H. was generally and specifically adoptable, rejected mother's argument that severing the parent-child bond would cause great harm or detriment to R.H. and ordered termination of parental rights. Mother timely noticed this appeal.

DISCUSSION

Mother raises two issues on appeal: the juvenile court erred when it denied her section 388 petition and that it erred when it failed to conduct an analysis of the beneficial parent-child exception to termination of parental rights.

1. The Denial of Mother's Section 388 Petition

Mother argues it was error to deny her petition because she demonstrated her circumstances had changed and because a juvenile court order granting family reunification services or return of R.H. to her with family maintenance services would be in R.H.'s best interest. In its responsive brief, the Department claims (without a separate heading or subheading as required by rule 8.204(a)(1)(B)), that the denial of mother's section 388 petition is not cognizable on appeal because that issue was not included in her notice of appeal. We agree with the Department.

Our jurisdiction to review a timely appeal of an appealable order is limited to the judgment or order described in the notice of appeal or its legal equivalent. (In re J.F. (2019) 39 Cal.App.5th 70, 75 (J.F.).) In relevant part, rule 8.405(a)(2) requires notices of appeal in a juvenile dependency proceeding to be liberally construed, and provides a notice is sufficient if it identifies a particular judgment or order being appealed. That rule is intended for use in cases of ambiguity and cannot be applied where there is a clear intention to appeal from one of two separately appealable judgments or orders. (J.F., supra, at p. 76.) In other words, the policy of liberal construction does not apply if the notice of appeal is so specific it cannot be read as reaching a judgment or order not mentioned in the notice. (Id., at pp. 78-79.)

Here, page one of mother's form notice of appeal, signed by trial counsel, states her appeal is from the findings and orders of the court, described as: "4/4/24 [¶] Termination of Parental Rights."

Item 7 on the page two requires the person preparing the form to "check all [the boxes] that apply." The only item 7 boxes checked in mother's notice are in item 7c., which show she is appealing an April 4, 2024, section 366.26 order terminating parental rights. Left blank are the item 7 options designed to permit the preparer to list "[o]ther appealable orders relating to dependency" or simply "other" (items 7e. and 7h.). There is no mention of the section 388 petition anywhere in the notice.

In view of the notice's specification that the appeal is from "Termination of Parental Rights" on April 4, 2024, and the complete absence of any mention of the denial of the section 388 petition, we find the notice presents a clear and unmistakable intent to appeal only the order terminating parental rights. (J.F., supra, 39 Cal.5th at pp. 78-79.) Accordingly, we lack jurisdiction to review the order on mother's petition. (Id., at p. 79.)

We note that, even if we had jurisdiction to consider the denial of the petition, mother would not prevail. Subdivision (a)(1) of section 388 provides in relevant part that a parent of a child who is a dependent of the juvenile court may, upon grounds of changed circumstances, petition the court to change, modify or set aside a prior order of the court if to do so would be in the child's best interests. Even if we were to assume her averment in the petition of successfully maintained employment and housing signaled that she had severed her relationship with the father, her evidence of recent sobriety reflects changing, not changed circumstances.

Parents with a longstanding substance abuse problem severe enough to cause them to be unable to provide adequate care for a child cannot show changed circumstances within the meaning of section 388 by a showing of recent sobriety and participation in a treatment program. (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.) Demonstration of an extended period of sobriety is crucial to establish changed circumstances in cases of parents who have not been able to remain substance free even when pregnant or when faced with the loss of their children.

Here, the record amply demonstrates that mother's drug issues are longstanding and entrenched, and that she did not stop using when pregnant or even after having her parental rights terminated. In November 2019, R.H. came to the Department's attention because mother and baby girl S. tested positive for methamphetamine. Reunification efforts as to baby girl S. were not successful, and parental rights were terminated. Three years later, in November 2022, after parental rights had been terminated as to baby girl S. and reunification services had been bypassed in R.H.'s case, mother and baby girl A. tested positive for methamphetamine and amphetamine when baby girl A was born.

It appears from documents attached to mother's petition that she made an attempt to address her drug abuse problem between October 2022 and April 2023, including a laboratory result showing a February 2023 negative test. She also attached a typed list of unknown origin stating she had tested negative several times between October 2022 and February 2023, but did not mention she had tested positive for methamphetamine and amphetamine in November 2022 when baby girl A. was born. While we commend mother for her efforts...