California Court of Appeal May 6, 2015 No. D066746Unpublished
Filed 5/6/15 In re Nevaeh G. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re Nevaeh G., a Person Coming Under the Juvenile Court Law. D066746 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. J517189) Plaintiff and Respondent,
v.
REBECCA G.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Michael J.
Martindill, Judge. Affirmed.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and
Respondent.
Rebecca G. appeals an order under Welfare and Institutions Code1 section 366.26
selecting adoption as the permanent plan for her daughter, Nevaeh G., and terminating
her parental rights. She contends that the court erred in finding that there was not a
beneficial parent-child relationship between her and Nevaeh within the meaning of
section 366.26, subdivision (c)(1)(B)(i) that precluded the termination of her parental
In July 2012, the San Diego County Health and Human Services Agency (the
Agency) filed a petition on behalf of then six-year-old Nevaeh under section 300,
subdivision (b) alleging that she was at substantial risk of serious physical harm or illness
because of Rebecca's inability to provide regular care for her due to mental illness,
developmental disability, or substance abuse.2 The petition specifically alleged that
Rebecca had used methamphetamine and alcohol to excess and had been arrested for
being drunk in public on July 13 and July 20, 2012, and that Nevaeh was with her when
1 All statutory references are to the Welfare and Institutions Code unless otherwise specified.
2 Effective June 20, 2014, subdivision (b) of section 300 was redesignated subdivision (b)(1). (Stats. 2014, ch. 29, § 64.) Subdivision (b)(1) provides, in relevant part, that a child comes within the jurisdiction of the juvenile court if "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness as a result of the failure or inability of his or her parent . . . to adequately supervise or protect the child, . . . or by the willful or negligent failure of the parent . . . to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent . . . to provide regular care for the child due to the parent's . . . mental illness, developmental disability, or substance abuse." 2
she was arrested on July 20. The petition further alleged that Rebecca had a history of
substance abuse and had previously participated in two voluntary case plans and a prior
dependency case for Nevaeh.
Officers from the San Diego County Sheriff's Department took Nevaeh into
custody on July 20, 2012 when they responded to a domestic disturbance call involving
Rebecca, who had thrown a bottle at a vehicle after someone in the vehicle called her a
"crack head." The officers observed that Nevaeh was filthy and had severe eczema.
Nevaeh told an officer that she had been walking all day and had eaten only two
doughnuts that day. Rebecca was arrested for being drunk in public and Nevaeh was
taken to Polinsky Children's Center. Rebecca admitted to an Agency social worker who
met with her in jail that she had used methamphetamines and had smoked "spice," a
synthetic form of marijuana, during the week that she was arrested.
The Agency's detention report summarized Rebecca's history with the Agency.
Rebecca participated in voluntary services from February to September 2006 as a result
of Nevaeh's testing positive for marijuana at birth. Rebecca did not test positive for drugs
during the voluntary case, but she failed to follow through with other terms of her case
plan. Another voluntary case was opened in October 2007 after Rebecca and the
maternal grandmother engaged in a physical altercation that led to Rebecca's arrest.
Rebecca completed a 90-day residential substance abuse program in that case, but failed
to participate in outpatient substance abuse treatment or therapy, as she had agreed to do
in her voluntary case plan.
3
The Agency took Nevaeh into protective custody and initiated a dependency case
on her behalf in July 2008 due to general neglect after police found her with her maternal
grandmother in the grandmother's bedroom during a search of the home, and found that
the grandmother was in possession of methamphetamine. During the dependency case,
Rebecca participated in therapy, home parenting services, and outpatient substance abuse
treatment. The court terminated jurisdiction in that case in September 2010.
The Agency social worker spoke with Rebecca's first cousin, Valerie C., who said
that she and Rebecca considered themselves sisters. Valerie went to Rebecca's home in
December 2011 to pick up Nevaeh because Rebecca was not feeding or caring for
Nevaeh. Valerie expressed concern about Nevaeh and said that Rebecca mentally and
physically abused Nevaeh. Valerie cared for Nevaeh for a couple of months. She told
the social worker that Rebecca had been using drugs since she was a teenager and that
she had an alcohol problem that had recently increased. She thought Rebecca might need
a mental health evaluation because she would "say random things."
The Agency reported in its jurisdiction/disposition report that Nevaeh was
detained with Wendy T., a nonrelative extended family member (NREFM).3 Rebecca
told an Agency social worker that she had asked her aunt, Donna D., and Wendy T. to
"come and get" Nevaeh because "she's being bad. I can't take care of her." Rebecca
wanted Wendy to have legal guardianship over Nevaeh. She stated, "My kid is bad. She
3 Section 362.7 provides that "[a] 'nonrelative extended family member' is defined as an adult caregiver who has an established familial relationship with a relative of the child . . . or a familial or mentoring relationship with the child." 4
needs her ass whooped and you guys won't let me do it." Wendy and Donna both
expressed concern about Rebecca's mental health and her ability to consistently care for
Nevaeh. Rebecca told the social worker that she thought she had a mental health
problem, but she did not know what it was. She was happy with Nevaeh's placement
with Wendy. She said that it was what she had wanted "for a long time," and that she had
been trying to arrange it before the Agency got involved.
Nevaeh told the social worker that she called Wendy "Nana," and that she liked
living at Nana's house because Nana took care of her. When asked what taking care of
her meant, Nevaeh said that Nana fed her, bathed her, and helped her go to bed at night.
At the jurisdiction hearing, the court sustained the petition and made a true finding
on the count under section 300, subdivision (b) by clear and convincing evidence. At a
later disposition hearing, the court declared Nevaeh a dependent of the court, and
removed her from Rebecca's custody. The court placed Nevaeh with an approved
NREFM and ordered Rebecca to comply with reunification services.
The Agency's report for the six-month review hearing noted that Nevaeh remained
placed with Wendy and that she reported feeling safe and loved in "Nana's" home.
Wendy had been diligently attending to Nevaeh's medical and emotional needs.
Rebecca called the social worker in early September 2012 and reported that she
was at the Isis House Crisis Center for the severely mentally ill. She had called a crisis
line and was taken to a hospital where she was kept overnight before being released to
Isis House. The hospital assessed her as presenting with depression and suicidal ideation.
5
Rebecca left Isis House on September 12, 2012. The next day, San Diego police officers
took her to the San Diego County Psychiatric Hospital from the Jane Westin Center,
where staff reported that she had been irritable and that there were concerns that she
might pose a danger to others. She was discharged from the county hospital on
September 20, 2012.
On October 10, 2012, Rebecca called the social worker from the Las Colinas
Detention Center and reported that she had been arrested following a violent altercation
with her ex-girlfriend, Janice K., after she (Rebecca) drank an entire 750 milliliter bottle
of rum. Janice told the police that Rebecca had bitten her on the right forearm and would
not let go. As a result, Janice suffered a laceration on her forearm that was approximately
four inches long and two inches wide. Rebecca was arrested for mayhem and battery
with serious bodily injury, but the district attorney's office declined to prosecute the case.
Wendy informed the social worker on October 19, 2012 that Rebecca had entered
the "CRASH" program.4 A staff member of the program named Robin told the social
worker that Rebecca had admitted to smoking spice and using methamphetamine and
alcohol days before her admission. Robin reported that Rebecca was "really out of it."
She was making odd comments, not doing well with the other residents, and not
following rules. Robin expressed concern that Rebecca might be in a drug-induced
4 The Agency states in its responding brief that CRASH is an acronym for Community Resources and Self Help. 6
psychosis. Approximately 20 minutes after the social worker's conversation with Robin,
Robin called the social worker back to report that Rebecca had left the program.
Rebecca was readmitted to the county mental health facility on October 20, 2012
and was discharged on October 22. Medical records from her inpatient stay revealed that
police took her there after they found her trespassing on private property in a psychotic
state. She tested positive for "THC and benzos" and admitted to having used
methamphetamine a few days earlier. At the time she was discharged, she was diagnosed
as having a drug induced psychotic disorder with delusions, mood disorder, and
dependence on alcohol, amphetamine, and cannabis.
On October 25, Rebecca entered a Christian faith-based, residential recovery
program called Cornerstone Restoration Ranch (Cornerstone). On November 7, the
director of Cornerstone told the social worker that Rebecca was "not in reality most of the
time," and that Rebecca heard voices and asked if they were real. Rebecca was
prescribed medications to treat psychosis, anxiety, and insomnia. On November 14, the
director of Cornerstone reported that Rebecca was doing much better. As of the end of
November, Rebecca was undergoing therapy and was consistently taking her prescribed
medications. In January 2013 she tested negative for all substances screened in a drug
test that the social worker requested.
In August 2012, the social worker completed the "Three Houses" exercise with
Nevaeh, in which Nevaeh drew a "House of Good Things," a "House of Worries," and a
7
"House of Wishes." Nevaeh also added a "House of Sad."5 Nevaeh's House of Good
Things included her caregiver, a family friend, and the social worker. Her House of
Worries and House of Sad included boys who made fun of her at school and a sad face of
herself. In her House of Wishes she listed more friends, to be a fairy, a magical unicorn,
and "a mom that doesn't threaten me," and drew a picture of herself smiling. Nevaeh had
consistently told the social worker that she loved her mother and wanted more visits with
her.
At the six-month review hearing, the court found that Rebecca had made
substantive progress with her case plan and ordered the Agency to continue to provide
her services. The court continued Nevaeh's NREFM placement.
The Agency's report for the 12-month review hearing filed on August 9, 2013
stated that Nevaeh had been on a 60-day trial visit with Rebecca since June 30, 2013.
When the trial visit began, Rebecca was in the residential Cornerstone program. Rebecca
left Cornerstone in July and on August 6, she and Nevaeh moved into a sober living
facility through the McAlister Institute SAFE Housing Program. During that transition
period, Rebecca consistently checked in with the Agency and showed that she was caring
for Nevaeh's needs.
The Agency reported that Nevaeh's mental and emotional status had dramatically
improved since the six-month review hearing. Nevaeh became immediately happier and
5 The social worker explained that the Three Houses exercises "is meant to elicit the voice of the child and [her] perceptions of what is working well in [her] life, what [she] is concerned about, and what [she hopes] will happen next." 8
her tantrums "practically ceased" after she began having unsupervised and overnight
visits with Rebecca. In addition, enuresis and encopresis that Nevaeh had been
experiencing lessened dramatically after she began to spend more time with Rebecca.
Rebecca tested negative for substance abuse after she left Cornerstone, and she had been
consistently participating in therapy.
At the 12-month review hearing on August 21, 2013, the court continued Nevaeh
as a dependent of the court, but placed her with Rebecca. The court set a review hearing
for February 18, 2014.
On January 7, 2014, El Cajon police responded to a call reporting that a woman
(Rebecca) was striking a child and a second call from Rebecca reporting that a woman
(the first caller) was following her in a vehicle. Nevaeh told the police that Rebecca had
hit her on the arm and pushed her down when she refused to let go of a discarded
Christmas tree that she wanted to take home. Rebecca had to forcibly pull Nevaeh away
from the tree. After the incident, Nevaeh told a social worker that she felt safe with
Rebecca and wanted to go home with her.
During an unannounced home visit on January 21, 2014, Rebecca was cheerful
and engaging and told the social worker that she was doing better than she had been at
the time of the incident on January 7, and was addressing with her therapist issues
regarding disciplining Nevaeh and dealing with the loss of her mother.6 Rebecca's
therapist reported that Rebecca was doing well in therapy and had made great progress in
6 Rebecca's mother had died the week before the January 7 incident. 9
controlling her anger. Nevaeh's mental and emotional status had continued to improve.
She consistently told the social worker that she was happy and that she felt safe with her
mother and wanted to live with her mother. The Agency recommended that the court
place Nevaeh with Rebecca and terminate jurisdiction over her.
On February 27, 2014, the Agency filed a section 387 petition alleging that
Nevaeh's placement with Rebecca had "not been effective in the protection or
rehabilitation of the child." The petition alleged that from January 7, 2014 to the present,
Rebecca had hit Nevaeh on several occasions and had threatened to physically harm her.
Nevaeh had reported being hungry and having little or nothing to eat. On February 4,
Nevaeh was prescribed an antibiotic for a urinary tract infection, but Rebecca had not
picked up the prescription despite numerous attempts by the doctor's office to contact her.
A relative picked up the antibiotics 10 days later. On February 24, Rebecca was
hospitalized under section 5150 because she attacked a roommate. Rebecca had stopped
attending meetings and drug testing at her sober living facility, and Nevaeh had reported
feeling unsafe in Rebecca's care.
The Agency reported that it had received a referral stating that Rebecca and
Nevaeh were living in a sober living facility for women and children, and Rebecca
regularly got into arguments with other women at the facility. Rebecca had screamed,
yelled, and cussed at the other women in front of Nevaeh, and stated, "If I had a fucking
gun I would shoot up everyone in here." She had stopped participating in the program's
meetings and drug testing. On February 24, she punched her roommate in the face, in
10
front of Nevaeh, when the roommate came out of the shower. Rebecca reported that her
sister, who was not present, told her to do it. Rebecca then took Nevaeh into another unit
where she (Rebecca) cornered a woman and appeared to be about to hit the woman when
staff intervened. Police transported Rebecca to the hospital to be assessed.
The Agency filed a detention report stating that Nevaeh was detained with
NREFMs Travis and Danielle H. The Agency reported that Nevaeh had witnessed all of
Rebecca's irrational behavior and was "forced to make adult decisions all of the time."
Nevaeh administered her own medications and breathing treatments for her asthma
because Rebecca failed to do it. Nevaeh was constantly trying to explain and excuse
Rebecca's behavior, telling people that Rebecca had been abused as a child and that was
why she acted the way she did.
Nevaeh told the social worker on February 25, 2014 that Rebecca had hit her with
a closed fist between the eyes and it hurt "really bad." She said that Rebecca had been
hitting her all her life, but mostly on the butt. She told the social worker that she did not
feel safe with Rebecca and did not want to go back to Rebecca. She raised her voice and
added, "and you can tell anyone that." The Agency recommended that visitation between
Rebecca and Nevaeh be supervised.
The Agency filed a jurisdiction/disposition report on March 19, 2014. The
Agency reported that it had received a hotline referral on March 4 stating that Nevaeh
had told her caregiver that someone had touched her "down there," and that it hurt, but
she would not reveal who had done it. The Agency received another referral on March 5
11
stating that Rebecca had put her tongue on Nevaeh's private parts when Nevaeh was two
years old and was sleeping. Rebecca told the reporting person that she felt very guilty
about having done it, and that she did it to determine if anyone had abused Nevaeh. She
explained that once she touched her tongue to Nevaeh's "privates," she would be able to
tell if anyone had done that before. The next day Rebecca told the social worker that she
had never licked, touched, or inserted anything into Nevaeh's vagina at age two or any
other age, and that voices told her to say that she had licked Nevaeh's vagina. The voices
told her that if she did not say it, she would have to do it.
Rebecca later told the social worker that all of her problems started when she
stopped taking her medication in late October or early November, 2013. She could not
recall what medication she had been taking, but she remembered that it helped her
function day to day and that she did not hear voices while she was taking it. When the
social worker asked her why she stopped taking the medication, she said, "I don't know, I
just did not reorder." Rebecca's psychiatrist diagnosed her as having a psychotic disorder
and being borderline bipolar. He prescribed her a medication to address the psychotic
disorder and reduce her episodes of hearing voices. The Agency concluded that
Rebecca's inability "to follow up on" Nevaeh's basic needs placed Nevaeh's health at risk.
At a jurisdiction hearing on March 25, 2014, the court made a true finding on the
section 387 petition, removed Nevaeh from Rebecca's custody, and placed her with a
NREFM. The court terminated Rebecca's reunification services and set a section 366.26
hearing.
12
The Agency's report for the section 366.26 hearing, prepared by social worker
Crystal Irving, stated that Nevaeh was placed in a confidential NREFM's home where she
had resided since February 25, 2014. Nevaeh presented as a "happy child with a dazzling
personality." She consistently reported that she liked living with her current caregivers
because she always felt safe and well cared for by them. She became visibly upset when
she talked and thought about the trauma she experienced when she was a victim of sexual
abuse.
Visits between Rebecca and Nevaeh had been supervised by the current
confidential caregiver, who was advised to cancel a visit if Rebecca appeared to be under
the influence of drugs or alcohol. Rebecca agreed to reschedule a visit if she was hearing
voices, and she cancelled a visit in early March for that reason.
Social worker Irving supervised a visit between Nevaeh and Rebecca on May 2,
2014. Nevaeh said that she missed her mother because she was "like her big teddy bear."
The visit went well and Nevaeh said that she "felt loved." When it was time for the visit
to end, Nevaeh continued to hug Rebecca. The visit ended pleasantly and "Nevaeh
walked to the car with a smile." Irving reported that "[t]here was no emotional display of
sadness due to the visit ending." A visit on May 8 also went well. Irving reported that
"Nevaeh appeared to be happy to have had a visit with her mother, as indicated by her
smiling and hugging her mother." Irving again reported that Nevaeh displayed no
emotion when Rebecca left.
13
Irving supervised a visit on May 25, 2014 at the drug and alcohol treatment
facility where Rebecca was residing. Nevaeh sang, "mommy mommy mommy" as she
and Irving approached the facility, and she was happy to see Rebecca. Rebecca and
Nevaeh made Fourth of July lanterns together and then played together on playground
equipment. Nevaeh jumped into Rebecca's arms and talked about school. Irving reported
that when the visit ended, Nevaeh separated from Rebecca with ease and displayed no
emotion.
Irving reported that Nevaeh's caregivers were married and had a son together, and
were emotionally and financially secure. The female caregiver had known Nevaeh's
family for over 30 years. She had watched Nevaeh grow and developed a strong bond
with her over the years. She and her husband wanted to adopt Nevaeh to offer her the
stability, safety, and permanency that Nevaeh needed. Nevaeh stated that if she could
choose with whom she could live, she would choose her current caregivers. She said that
she "always has food" and enjoyed having her own room, and that she felt "the safest
with [her caregivers]" and never got hit.
Irving's assessment was that although Nevaeh loved and had an affectionate
relationship with Rebecca, Rebecca had not shown that she played a parental role in
Nevaeh's life. Nevaeh referred to Rebecca as "mommy" but, in Irving's view, "the
relationship models that of a sibling relationship. They talk, laugh, and appear to enjoy
each other's company, but there is no parenting demonstrated. Nevaeh looks to her
current caregiver to get her needs met. [Rebecca] even looks to the current caregiver to
14
make decisions regarding Nevaeh, as indicated by her asking if Nevaeh can have a piece
of candy." The Agency recommended that the court terminate parental rights and order a
permanent plan of adoption for Nevaeh.
Rebecca filed a section 388 petition on July 23, 2014, requesting that the court
change its order terminating her reunification services and setting the section 366.26
hearing, and enter a new order placing Nevaeh with her and either closing the case or
providing further reunification services. As changed circumstances, Rebecca alleged that
the allegations that she had sexually abused Neveah and neglected her by delaying
medical treatment had been closed as inconclusive. Rebecca further alleged that she had
entered KIVA (a drug and alcohol treatment program), all of her drug tests during her
participation in the program had been negative, she continued to attend Alcoholics
Anonymous and Narcotics Anonymous meetings and therapy, and she had completed an
anger management class.
Irving filed an addendum report stating that the Agency opposed Rebecca's section
388 petition and continued to recommend termination of parental rights and adoption as
Nevaeh's permanent plan. Irving noted that Rebecca had a long history of substance
abuse that could not "be easily removed or ameliorated," and that Rebecca was "in the
initial stage of recovery and is 'in progress' of addressing her substance abuse issues."
Irving stated that the Agency commended Rebecca "for the progress she has made in
treatment, however, she has not demonstrated to a significant degree that she has
15
alleviated the risks that led to Nevaeh's removal." Irving reiterated her assessment that
Rebecca had not played a parental role in Nevaeh's life.
Irving reported that Nevaeh's needs were appropriately and consistently being met
in her current placement, and that Nevaeh had conveyed that she wanted to remain in her
current placement because that was where she felt the safest. Nevaeh's caregiver called
Irving on July 24, 2014 and stated that Nevaeh had told her that she did not want
overnight visits with Rebecca because she did not "have [her caregiver's] phone number
to call if something happened." Nevaeh told her caregiver that she did not want Rebecca
to know where she lived because she was afraid that Rebecca would "come and beat her
up in the middle of the night." She said that she was not currently afraid of Rebecca
because the caregiver was always with her.
Nevaeh also told her caregiver that one night at her grandmother's home, Rebecca
told her that she (Rebecca) wanted a boyfriend. Rebecca then proceeded to show Nevaeh
what she wanted the boyfriend to do to her (Rebecca) by showing Nevaeh "nasty videos
and . . . touching her private parts and sticking her fingers in it." The caregiver asked
Nevaeh if Rebecca had ever touched her like that. Nevaeh said "no," Rebecca only
touched herself. Nevaeh added that "Robert did that sometimes."7 Rebecca later took
her medication and told Nevaeh that she (Rebecca) "should not have done that." When
Irving asked Rebecca if she had touched her vagina in Nevaeh's presence or had ever
7 Irving had Nevaeh draw a "Safety/Permanency House" that included a list of people who were not allowed in the house. On that list, Nevaeh identified "Robert" as "her's [sic] nona's son." 16
shown Nevaeh "nasty videos," Rebecca said she did "not recall." Rebecca told Irving
that she believed that Nevaeh had fabricated those allegations because "Nevaeh never felt
safe with [her], so she made it up so that she wouldn't have to [come] back with [her]."
The court denied Rebecca's section 388 petition on July 29, 2014, and held a
contested section 366.26 hearing on September 25. The court received the Agency's
reports in evidence and heard testimony from Irving and Rebecca. After hearing
argument on the section 366.26 issues, the court found by clear and convincing evidence
that Nevaeh was likely to be adopted and that none of the circumstances specified in
section 366.26, subdivision (c)(1)(B) that would make termination of parental rights
detrimental to Nevaeh existed. In its oral ruling, the court stated that it found "by the
evidence presented that the relationship [between Rebecca and Nevaeh] is more of a
friendly familial relationship, and it does not rise to the level of a parent[-]child bond that
would outweigh the benefits of a permanent home." The court terminated parental rights
and referred Nevaeh to the Agency for adoptive placement.
DISCUSSION
Rebecca contends that the court erred in finding that the beneficial parent-child
relationship exception of section 366.26, subdivision (c)(1)(B)(i), did not apply to
preclude the termination of her parental rights. " 'At a permanency plan hearing, the
court may order one of three alternatives: adoption, guardianship or long-term foster care.
[Citation.] If the dependent child is adoptable, there is a strong preference for adoption
over the alternative permanency plans.' [Citation.] 'Once the court determines the child
17
is likely to be adopted, the burden shifts to the parent to show that termination of parental
rights would be detrimental to the child under one of the exceptions listed in section