Opinion
B206234
9-9-2008
In re ANGEL N., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. YVETTE L., Defendant and Appellant.
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Respondent. Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Denise M. Hippach, for Plaintiff and Respondent.
Not to be Published
In this dependency case (Welf. & Inst. Code, § 300 et seq.), Yvette L., the mother of the minor child Angel N. (Mother and Angel, respectively), challenges the order of the juvenile court that denied her section 388 petition whereby she requested that she be given six additional months of reunification services to facilitate a return of Angel to her custody. Mother contends the dependency court abused its discretion in denying her petition because the petition demonstrated both changed circumstances in her life, and that it would be in Angels best interests to extend the reunification period.
Unless otherwise indicated, all references herein to statutes are to the Welfare and Institutions Code.
Section 388 provides in relevant part that "[a]ny parent or other person having an interest in a child who is a dependent child of the juvenile court or the child himself or herself through a properly appointed guardian may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court or in which a guardianship was ordered pursuant to Section 360 for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition shall be verified and, if made by a person other than the child, shall state the petitioners relationship to or interest in the child and shall set forth in concise language any change of circumstance or new evidence which are alleged to require the change of order or termination of jurisdiction." Then, "[i]f it appears that the best interests of the child may be promoted by the proposed change of order, . . . or termination of jurisdiction, the court shall order that a hearing be held . . . . " Section 388 petitions are addressed in California Rules of Court, rule 5.570.
The dependency courts denial of Mothers section 388 petition is reviewed under an abuse of discretion standard. Given the facts of this case, we find no abuse of discretion in the denial of Mothers petition, and the order of denial will be affirmed.
BACKGROUND OF THE CASE
1. Detention of Angel
Angel, who was born in June 2004, was two years old when he was detained by the Los Angeles Department of Children and Family Services (the Department) on February 3, 2007, and placed in the care of his maternal grandmother (MGM). The Departments detention report shows that on the date Angel was detained, Mother had been arrested by the La Verne Police Department for shoplifting merchandise worth $365.91. Mother had Angel with her when she was arrested, and because Angels father, Angel N., Sr. (Father), could not be located at the time, the police called the Departments child protection hotline and requested that a social worker take protective custody of the minor.
Mother, who was 29 years old at that time, told the detaining social worker that she has been depressed since her other children were removed from her care in approximately 2002. Mother also stated she had been homeless for about three months but was currently staying with Father in a motel in Pomona, and Father was on parole for second degree robbery. Mother admitted that she had shoplifted some items from a store, that she "returned them" for a refund, and that it was wrong to do that but she "could not stop" herself. The victim stores security report states that store security personnel interviewed Mother in their office and after the police took her away, security found a baggie of suspected methamphetamine under the chair in the security office where Mother had been sitting. The security report states Mother was the first person to sit in that chair for a number of days. The police returned to take possession of the baggie, but there was insufficient evidence to charge Mother with having possessed it. Mother was booked by the La Verne police and released that same day. The very next day, she was arrested by the Pomona Police Department for possession of methamphetamine and drug paraphernalia.
The Departments detention report states that in 2002, Angels half-sister, Sky L., "suffered physical abuse at different periods of time, including, but not limited to: Left femur fracture; Right femur fracture; and Right tibia fracture. These three factures took place at different times, per x-ray dating of the injuries, and parents never provide any reasonable explanation to account for the injuries." Sky L. was nine months old. She and her siblings, Alexis F. and Erica L., were dependent children of the juvenile court and their parents never regained custody of the children. The childrens maternal grandparents, Glenn and Gloria H., (who are also the maternal grandparents of Angel), adopted Sky and were made the legal guardians of Alexis and Erica.
Angel appeared healthy and adequately cared for when the social worker came for him. There were no visible marks or bruises on his body. Asked if he wanted to go to the home of the MGM, he shook his head "yes." He was taken to the MGMs home, where the MGM told the social worker she had not heard from Mother for about seven months, she was concerned about Angel, and she knew it was "just a matter of time" before the issue of Mothers ability to care for Angel would arise.
The social worker was able to make contact with Father on February 5, 2007. Father stated he had been involved with Mother for four years, he does not use illegal drugs but he did use them a long time ago and his drug of choice then was PCP. He also reported that he has been diagnosed as bipolar and was taking 1000 mg of Depakote.
The detention report shows that Father has a lengthy criminal history which includes controlled substance crimes (possession and use), and which includes four felony convictions, which resulted in his incarceration in 1994 as an habitual felony offender. After that incarceration he violated his parole at least twice, mostly recently in 2005.
At the detention hearing, the court found a prima facie case that Angel is a person described in section 300 and should be detained. It vested temporary placement and custody of the child with the Department, the parents were given monitored visitation with a Department approved monitor, and the Department was ordered to detain the child with the MGM and to determine whether the home of the paternal grandfather (PGF) would be appropriate for possible placement. A pretrial resolution conference was set for March 8, 2007.
2. Pretrial Resolution Conference, Amended Petition, Disposition
Father was interviewed by the Department for the March 8, 2007 pretrial resolution conference. He stated he was diagnosed with bipolar disorder when he was in prison, and has taken medication for the problem since the diagnosis, he was currently taking three medications, and the medications did not affect his ability to care for Angel. He acknowledged that his parental rights to another of his sons were terminated when he was in prison. He stated that son is also named Angel (Angel Eddie N.). Angel Eddie N. was born with drugs in his system and was detained from his mother, Evelyn O. Father was in prison the entire time Angel Eddie N. was in the dependency system and the minor was adopted.
Actually, Father told the social worker he has five sons, three of whom are named Angel—Angel, Jr., Angel Eddie, and the current dependent child, Angel.
Mother stated she is married to the father of Erica L. and Sky L. (see fn. 3, ante), but they have been separated for a long time and she is in a relationship with Father. She and Father live in the home of the PGF. She stated she began using crystal methamphetamine when she was 14 or 15 years old and used the drug for a couple of years, and she relapsed on February 4, 2007 and was arrested. Father told the social worker that in June 2006 he would "go out and do my thing and [Mother] had her drugs on her."
Father told the social worker he was enrolled in parenting classes and in Tri-city mental health services. Mothers criminal court case was pending and she told the social worker she was enrolled in parenting classes, in a substance abuse program, and in random testing. Fathers random drug test on February 27, 2007 and Mothers random drug test on February 20, 2007 were negative.
The social worker opined that Angel appeared to be well adjusted in the home of his MGM. However, the MGM stated she was overwhelmed by the addition of Angel to her home since she is already caring for his three half-siblings, and she requested that he be replaced from her home.
An amended section 300 petition was filed on March 8, 2007, the day scheduled for the pretrial resolution conference. At that conference, the court dismissed the original section 300 petition and adjudicated the amended petition, sustaining the allegations that Mother possessed methamphetamine while Angel was in her custody and control and that she was arrested for possession of methamphetamine, and sustaining the allegation that Father has a history of illegal drug use, and that these matters endanger Angels health and safety and create a detrimental home environment. The court also sustained allegations that Mothers children Sky, Alexis and Erica were dependent children due to Skys sustaining three fractures while she was in the custody of Mother and Skys father, and Mother failed to reunify with those children and her parental rights to Sky were terminated. Additionally, the court sustained the allegation that Father was incarcerated for the entire time Angel Eddies dependency case was pending and Father failed to reunify with Angel Eddie and his parental rights were terminated.
Angel was declared a dependent of the court and custody was taken from the parents and placed with the Department for suitable placement of the minor. For her case plan, Mother was ordered to attend a Department approved program of drug rehabilitation with random testing, parent education, and individual counseling to address case issues. For his case plan, Father was ordered to attend the same programs, and to also participate in mental health counseling and take prescribed medication. The parents monitored visitation was continued, with the Department given authority to liberalize. The court instructed the parents that before they could be reunified with Angel they would have to demonstrate they can meet Angels physical and emotional needs and provide stable and appropriate housing. The parents were also advised that because of Angels young age, the parents had a limited amount of time to make progress in their case plans to have the minor returned to them.
3. The Supplemental Petition
On May 11, 2007, the Department filed a section 387 supplemental petition which states that Angel was removed from the MGMs home, where he had previously been ordered placed, because the MGM was no longer willing to care for him. The report for the supplemental petition explains that Angel had been replaced to a foster home because the MGM reported she was no longer able to care for him because she was already caring for Angels three half-siblings and she has health issues and is no longer able to function well. At the May 11, 2007 detention hearing on the supplemental petition, the court ordered Angel detained in foster care and ordered unmonitored visits for the MGM. The court indicated that the already scheduled progress hearing date in June 2007 would also be used for a jurisdiction hearing on the supplemental petition.
Section 387 provides in relevant part: "(a) An order changing or modifying a previous order by removing a child from the physical custody of a parent, guardian, relative, or friend and directing placement in a foster home, or commitment to a private or county institution, shall be made only after noticed hearing upon a supplemental petition.
"(b) The supplemental petition shall be filed by the social worker in the original matter and shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child or, in the case of a placement with a relative, sufficient to show that the placement is not appropriate in view of the criteria in Section 361.3.
4. The June 6 and 27, 2007 Hearings
The Departments reports for the June 6, 2007 progress hearing on the amended section 300 petition and the jurisdiction hearing on the supplemental petition shows that Angel was living with foster parents who were interested in adopting him. They reported that Angels first night at their home was difficult for him but thereafter he was adjusting well to living with them. They enrolled him in fulltime day care but it had not yet begun. His doctor gave the foster mother a referral for speech therapy. Mother and Father had been visiting Angel once a week and new arrangements for visitation were being made for the minors new placement.
The report states Mother and Father were testing negative to drugs, and a letter to the court from the American Recovery Center in Pomona, dated June 6, 2007, states Mother had been living there since May 21, 2007 as a resident in its chemical dependency treatment program, and her expected program completion date was November 21, 2007. The letter described Mother as cooperative, compliant, motivated, and committed, and stated drug testing was on a random basis and Mothers most recent negative test was on June 6, 2007. Besides various classes concerning chemical dependency, the program includes parenting education. There is no indication whether Father was attending to his case plan. The Department recommended the parents continue to have reunification services.
The June 7, 2007 hearing was continued to June 27 because of a notice problem. At the June 27 hearing, the court sustained the section 387 supplemental petitions allegation that the placement with the MGM was no longer effective in protecting Angel. Based on Mothers attorneys representation that the American Recovery Center program which Mother was attending permits enrollees who are Mothers with children to have their children at the residential facility, the court directed the Department to address, in its report for the August 9, 2007, section 366.21, subdivision (e) six-month status review hearing, the possibility that Angel could be placed with Mother at the treatment facility. The Department was ordered to increase Mothers visits with Angel to at least twice a week and more if possible because Mother was doing well in her programs.
5. The Section 366.21, Subdivision (e) Six-Month Review Hearing
The Departments report for the August 9, 2007 section 366.21, subdivision (e) six-month review hearing shows that the prospective adoptive foster parents already had an approved adoptive home study that was completed by the private adoption agency, Childrens Bureau. The Departments report states that all of the members of the foster family welcomed Angel, he appeared to be doing well in their home, his doctor reported he was in good health, and he would be attending a day care center full time in September 2007. Although his doctor had provided the foster mother with a speech referral for Angel on June 4, 2007, she had not yet made an appointment for an assessment for the minor.
Angel was visiting with Mother and Father weekly at a Department office for two hours and the foster mother was monitoring the visits. The report states that "during the visits, Angel would see his parents, and express excitement. He smiled and accepted their hugs and kisses. During the visits he engaged with them easily. However, once in awhile he expressed anger by throwing small toys at birth parents."
Letters to the dependency court from the American Recovery Center show that as of August 9, 2007, Mother had been at the center for 81 days as a resident and her expected date for completing the program remained November 21, 2007. She had completed her first set of core classes (anger management, addiction and HIV education, relationships, and values and relapse prevention), and she had commenced her second set of core classes (values, social skills, health-wellness-recovery, and spirituality). Additionally, she was taking family anger management and parenting classes, was attending five 12-step meetings each week, attending an on-going womens group and "process" group, and two 12-step related groups, and she was participating in adult education. She was described as very motivated, she attended all of her classes, groups and meetings, did her assigned chores, cooperated with staff and peers, engaged in random testing, and visited with Angel on a weekly basis. However, the August 9, 2007 letter states that Mother had "not been following the rules as expected by crossing boundaries with a male peer. She has been given severe consequences for this and is accepting them appropriately." The August 9 letter adds that despite these difficulties, Mother was "still very committed to . . . reunification [with Angel]."
The Departments report acknowledges Mothers progress but observes that the time between when Mother entered her treatment program on May 21, 2007 and the date of the six-month review hearing on August 9 "is a very short term of sobriety for someone who has [a] long history of drug abuse for her child to be released to her. The [D]epartment would like more to be able to demonstrate more consistent stability and sobriety prior to recommending that Angel be placed with her." Regarding Fathers case plan, the report states that although Father told the social worker he was complying with his plan and would present proof of compliance, no papers had been submitted to show his compliance, and the Department received a drug test result for Father, dated July 19, 2007, showing he had tested positive for methamphetamines.
In its report, the Department recommended that the parents reunification services be terminated and a section 366.26 hearing be set. However, at the six-month review hearing, the Department stated it was changing its recommendation for Mother such that she be given further reunification services. The court stated that "would be in compliance with the law" because Mother was doing well for the past two months. The court indicated its intent was to order further reunification services for Mother and terminate Fathers services. Father requested a contest on that issue and the court set a hearing for September 11, 2007, and noted Mothers attorney could waive Mothers appearance for the September 11 hearing.
Mother asked that she be granted unmonitored visits with Angel at her treatment program residence and the court ordered that Mother could have visitation with Angel at her treatment center and such visitation is to be "loosely monitored" by the staff, which the court explained means that Mother and Angel must be within sight of the treatment centers staff, without any restrictions on distance so long as Mother remained on the property.
6. Hearings Regarding Termination of the Parents Reunification Services
A letter from Mothers treatment center, dated September 8, 2007, shows that on August 11, 2007, just two days after the court permitted Mother to have visitation with Angel at her treatment center, she was discharged from her residential program "for continuing to try and communicate with a male peer after being given consequences for this behavior prior to this incident. She also put another female peer in jeopardy of being discharged for trying to have her mail a letter to this male peer." The treatment center referred Mother to another treatment program. The letter states that Mother "made some good progress in her treatment and recovery by attending her core classes, meeting for individual sessions, and adhering to her treatment plan stipulations. She was becoming more aware of her reasons and what to do about them concerning her lifestyle of using drugs and alcohol. While here she tested negative for all drug tests." An "information for court officer," dated September 11, 2007, states that during Mothers treatment, Mother received no individual counseling that addressed her child Sky, and that since she was discharged, Mother had made contact with the social worker once and the worker advised Mother to enter another treatment program right away, but Mother had not done so.
Father did not appear for the contested six-month review hearing that he requested. The court indicated Mothers attorney could contact Mother and inform her that the courts tentative for her that was expressed at the August 9, 2007 hearing, to wit, to continue reunification services for her, was changed. The court continued the six-month review for both Mother and Father to October 10, 2007 and ordered that Mothers visits with Angel were to be monitored.
Neither Mother nor Father appeared at the contested October 10, 2007 six-month review hearing. The Department informed the court that the parents had not made contact with the social worker since the last court hearing and the Department did a due diligence investigation on them in an attempt to determine their whereabouts.
A Department investigator contacted the MGM and PGF, and they both reported their belief that the parents were homeless and living on the streets in Pomona. Mother appeared in court on November 7, 2007 at a hearing set by the court on the due diligence matter but she left before the hearing, telling her attorney that she was attempting to enroll in "Prototypes" and had a meeting with a counselor there.
The court found that the parents had not made substantial progress in alleviating or mitigating the causes that necessitated the placement of Angel, and had not demonstrated a capacity and ability to provide for the minors safety, and physical and emotional health. It stated it could not make a finding of a substantial probability that Angel would be returned home by the time of the 12-month review hearing.
The court observed that the case commenced in early February 2007, and although Mother regularly visited with Angel, she did not enter a program for nearly four months, she did well in her program for 83 days but then was terminated because of her behavior and had not enrolled in another program; and thus in the 8 months that the case had been pending, she had been making progress for less than three months. The court further found that Father had "done nothing but test dirty in July of 2007." The parents reunification services were terminated. The court observed that this was Mothers second opportunity in the dependency system to make good and she had not taken advantage of that opportunity, and since Angel was a young child, it was in his best interests to begin a permanent plan for him.
A section 366.26 hearing was set for February 6, 2008 with a projected permanent plan of adoption. The court made the additional order that the parents rights to make education decisions for Angel would be limited and the foster parents were appointed as responsible persons to make educational decisions for the minor.
7. The Section 366.26 Hearings
The Departments report for the February 6, 2008 section 366.26 hearing shows that in early January 2008, Mother confirmed that after she was terminated from her substance abuse program she was homeless and living on the street. Then in December 2007 she entered an inpatient substance abuse treatment program, Stepping Stones. She told the social worker she last used methamphetamine in November 2007 after she found out that adoption was the plan for Angel. She stated she did not want him to be adopted and she would do what was necessary to have him returned to her care. She stated she had been sober for 30 days. She admitted she had not yet completed any portion of her case plan.
The social worker was able to make contact with Father on January 10, 2008, and Father stated he was living with the PGF. He stated he had finished a parenting classes and had an appointment with a mental health services program for January 16, 2008. He had not yet participated in a substance abuse program. He stated he did not want Angel to be adopted and he was now ready to do what needed to be done to show the court he could care for Angel. Mother stated Father had been living on the streets until he moved in with the PGF.
Angel was to begin speech therapy in early February 2008 for speech delays, and he had a neurology appointment for early January. He had suffered from seizures at birth and a heart murmur, although it was determined by a cardiologist that he no longer had the heart murmur. The social worker observed him in his preadoptive home, where he interacted with his foster parents and the foster parents children appropriately, and appeared to be happy and comfortable. The foster parents remained committed to adopting the minor. They began caring for him on May 25, 2007.
In late December 2007, the foster mother reported that Father had stopped visiting with Angel in approximately August 2007, and Mother has stopped visiting with the child in approximately in September 2007. However, Mother had begun visiting Angel again, and she had monitored visits on December 24 and 31, 2007. Father participated in visitation on the latter date. Angel appeared to be nervous about the visits because he would not eat and would not permit the foster mother to leave the room. On January 3, 2008, Mother admitted that she had let several months lapse without seeing the minor.
The February 6, 2008 section 366.276 hearing was continued to February 21, 2008 because Mother requested a contested hearing. On February 8, 2008, Mother filed a section 388 petition wherein she asserted that since her reunification services had been terminated and the section 366.26 hearing was set, she had entered a substance abuse program on December 4, 2007 and was engaged in addressing the problems that brought Angel into the dependency system. She was attending AA meetings, education groups, parenting classes, and individual counseling designed to address the case issues. She asserted she had made substantial progress in November 2007 through January 2008, and she requested that the order setting the section 366.26 hearing be set aside and reunification services be reinstated for six months. She asserted she and Angel have a close bond and it is presumptively in the minors best interest to reunite with her.
By the time of the section 388 and 366.26 hearings, Mother had received a certificate regarding parenting classes at the Covina Development Center. It states that from December 11, 2007 to February 19, 2008, she completed twelve hours of classes. There were also two letters from Stepping Stones Recovery Home, one dated February 1, 2008 and the other February 20, 2008. According to letters, a participants length of stay in the Stepping Stones program is from 30 days to 9 months. Mother entered the program on December 4, 2007, and by February 20, 2008, she had completed "a 30 and 60-day treatment plan."
Also by February 20, 2008, she had attended 48 AA/NA meetings, 76 self-help group sessions, 78 recovery group sessions, 7 parenting classes, 10 domestic violence classes, 4 individual/family sessions, and 16 education groups. She had also attended 10 individual sessions with her primary counselor, had completed 3 of her steps (apparently meaning in a 12-step program), and was working with a sponsor and going to outside meetings on a weekly basis . She was in compliance with the Stepping Stones program and rules, was demonstrating she wanted to be in the program, was on the resident council, and was acting as the "check monitor for the house." She was also helping with new residents and with the house shopping. She was opening up regarding her addiction and family issues, including choices and mistakes she had made, she appeared to be honest when she was sharing, and she would come to the staff when she needed help. She was discussing different ways to handle situations that have caused her to use drugs, and she had learned that her addiction was not a solution but a problem itself.
The February 20, 2008 Stepping Stones letter states Mother demonstrated a willingness to change and "if she continues to do what is suggested of her, there is a good possibility that she may remain clean." The February 1, 2008 letter states Mother and Angel seem very happy together in their weekly visits.
The Departments reports for the section 388 and 366.26 hearings assert that although Mother is in a recovery program, her extensive substance abuse and child welfare history place Angel at a high risk of abuse if he were to be returned to her care, and Fathers progress during the pendency of the case was minimal and his history of substance abuse also places Angel at high risk if returned to his care. The reports state the prospective adoptive parents are willing to maintain contact with the MGM so that Angel can have a relationship with his half-siblings that the MGM is caring for. The social worker opined that although the report from Mothers program indicates Mother is doing well there, ten weeks is not a long time of sobriety, especially for someone who has a long history of drug abuse. Moreover, Mother had not demonstrated consistent stability during the time this case has been pending, and although she had three children removed from her care in a prior dependency case, that did not motivate her to remain sober with Angel.
Mother testified at the section 388 hearing. She stated her Stepping Stones program has a testing component and she is tested at least twice a month and she has not had any positive tests since she enrolled there in December 2007. Mother described her program at Stepping Stones, saying her day starts with an AA meeting and then her classes begin at 10:00 a.m. and she has at least four classes a day. The groups last from 60 to 90 minutes. The facility is structured and the persons in the program are busy almost all day. Her last group is at 7:00 and ends at 8:00 and her day ends at 9:00. The groups include relapse prevention, family, individual counseling, and education. She has had 10 or 11 individual sessions with her counselor and they work on dealing with her addiction and with Angel.
In relapse prevention she has learned to stay away from negative people, to stay close to the fellowship by attending AA/NA meetings, to call her sponsor and to call NA/AA meetings, and to read the AA/NA books. She has attended about 78 AA/NA meetings, where she addresses her addiction and how she can prevent relapse. She works with her sponsor on the AA big book and on NA books—on the tools in the books.
Since enrolled in Stepping Stones she has visited with Angel once a week and the visits last two hours. Angel is excited to see her and he cries when they part. He calls her "Mom" and they have a close relationship. During their visits, they play ball, watch movies, play with cars, eat lunch. She uses her parenting skills by showing him that she misses him but not crying. Prior to when Angel was detained, he visited with Mothers other children—his half-siblings—every weekend at the MGMs home and Angel would spend the weekend there.
Asked why she was discharged from her prior recovery program, Mother stated she broke the rules. After she was discharged from that program she relapsed into using drugs after she found out that Angel was going to be adopted. Asked what is different now such that the court should provide her with another chance, Mother answered she is now very serious about her recovery, she is tired of her prior life and is done with it, and she intends to stay clean because she has lost a lot. She stated that if she were given more time to reunite with Angel she would finish school, obtain a job, and go into a sober living program where parents can reside with their children, and then get an apartment and provide for Angel. She stated she knows she can stay sober if provided the opportunity to reunite with Angel.
She acknowledged that between August and December 2007 she had no visits with Angel. She stated she did not visit him because she was ashamed and angry with herself for being thrown out of her recovery program. In January 2008 she had four monitored visits with Angel and so far in February 2008 she had three monitored visits. The visits were at Stepping Stones and were two hours long.
Mothers attorney argued that since Mothers reunification services were terminated there was a change of circumstances in that Mother was attending a recovery program on a regular basis, was engaged in individual counseling, and had completed her parenting classes, and thus she was complying with her case plan. Further, six more months of family reunification services would be in Angels best interest because Angel was two years old when this case commenced in February 2007 and thus he was already bonded with Mother when he was removed from her care, and in terms of dependency standards, had been out of her care for a short period of time (one year), and moreover, except for three months when she did not visit him, she regularly visited him throughout the time this case was pending and had continually visited with him since enrolling in Stepping Stones. Moreover, this is not a case where Mother did nothing. She enrolled in a program and when she was discharged for not complying with rules, took responsibility for her actions and enrolled in another program.
In denying Mothers section 388 petition, the court observed that circumstances had not changed since Mothers reunification services were terminated. When she was discharged from her original substance abuse program she did not enroll in another program for several months and during that interim she began using drugs again and did not bother to visit with Angel; she had only been in her new program approximately 10 weeks; and this is not her first time in the dependency system in that she has already lost three children to permanent plans and yet she was back in the system. The court stated at best Mothers circumstances were changing, not changed, and thus they were not sufficient to justify modifying the order terminating her reunification services, and indeed, they were not even sufficient to justify liberalizing visitation. Moreover, granting Mother additional time to reunify would not be in the minors best interests.
Regarding whether parental rights should be terminated, Mother argued that the parental relationship and the sibling relationship exceptions to termination of parental rights apply in this case. (§ 366.26, subd. (c)(1)(B)(i) & (v).) The court found Angel is adoptable, it would be detrimental to him to return him to his parents, and neither the parental relationship exception nor the sibling relationship exception to termination of parental rights apply in this case. The parents parental rights were terminated and thereafter Mother filed this timely appeal.
DISCUSSION
The person filing a section 388 petition has the burden of showing, by a preponderance of the evidence, that new evidence or a change of circumstances demonstrates that it is in the minors best interests to modify a prior order. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
Often, section 388 is invoked by parents, as it was in this case, as an "escape mechanism," after the dependency court has terminated their reunification services and set their case for a section 366.26 hearing. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528.) "[In re] Marilyn H. [(1993) 5 Cal.4th 295] makes clear that reunification pursuant to section 388 must remain a viable possibility even after the formal termination of reunification services in a 12- or 18-month review if there is, as the court put it, a `legitimate change of circumstances. " (Kimberly F., at p. 529.) However, a change of circumstances does not equate with changing circumstances, and "[a] petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the childs best interests." (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
The trial court in this case was presented with Mothers contention, via her section 388 petition, that circumstances in her life regarding her long history of using drugs had changed to the point that putting the adoption of Angel by his caretakers on hold and permitting her to have six-more months of reunification services would be in the minors best interests. The trial court had to determine whether Mother had presented a "legitimate change of circumstances." We review the trial courts section 388 ruling under an abuse of discretion standard. (In re Jasmon O., supra, 8 Cal.4th at p. 415.)
A trial courts consideration of a section 388 petition must reasonably consider "the seriousness of the reason for the dependency in the first place. Not all reasons for initial dependency jurisdiction are equal from the point of view of a childs interests." (In re Kimberly F., supra, 56 Cal.App.4th at p. 530.) Likewise, "[i]t is only common sense that in considering whether a juvenile court abuses its discretion in denying a section 388 motion, the gravity of the problem leading to the dependency, and the reason that problem was not overcome by the final review [hearing], must be taken into account." (Id. at p. 531.) Here, the reason for dependency court intervention is one that is not easily overcome by parents seeking to reunify with their children—the use of illegal drugs.
The record shows that in the nine months between when Mother first entered a substance abuse program and when her parental rights were terminated (May 21, 2007 to February 22, 2008), Mother made several choices that would indicate to the dependency court that her attention to her own desires was more important to her than Angel is. First, she chose a social relationship with a male peer at her first treatment program even though she had been warned to cease pursuing socializing with the man. Second, after she was discharged from that treatment program, she chose to not visit Angel for months despite the fact that she asserts he is bonded to her and it is in his best interests to continue having a relationship with her. Third, she chose to return to using drugs after she was discharged from the program despite that (a) she had taken instruction and counseling to help her say "no" to drugs, (b) using drugs keeps her from having custody of the minor, (c) just two days before she was discharged from her program the trial court had indicated to her that it was of a mind to continue her reunification services, and (d) her treatment program gave her a referral to another program and her Department social worker advised her to enter a new program immediately. To those matters we add the facts that she waited 10 weeks to enter her first rehabilitation program after the court took custody from her and placed custody of Angel with the Department; she waited four months to enter a new treatment program after she was discharged from the first program; and she had already been through the dependency system with her three other children and they had all been placed in permanent plans, including an adoption.
That is the backdrop against which Mother asserted to the trial court that during the four-month period between October 10, 2007 when the court terminated her reunification services and set the section 366.26 hearing, and February 22, 2008 when the court heard her section 388 petition, her circumstances had so changed that Angels best interests would be promoted by giving her another six months of reunification ser vices. That is the backdrop against which she now asserts on appeal that she "demonstrated she had overcome the substance abuse that led to Angels initial detention."
Yet, the only things that had changed during that four-month period were that she had been enrolled in a residential drug treatment program for three months; she was reported to be working enthusiastically in her rehabilitation program for those three months; she had apparently been drug free for the three months; she had been visiting with Angel for two months; she had completed a parenting class; and she had resumed contact with the Department social worker in early January 2008.
However, with the exception of Mothers having completed a parenting class, the trial court had seen that kind of activity by Mother before. Mother spent three months in her original program and that facility wrote positive letters about her progress (she had started her second set of core classes and she was attending several AA meetings each week), and her enthusiasm for visiting with Angel and reunifying with him. Her contention in this appeal that she was not discharged from her program because she used drugs but rather because she "had inappropriate contact with a male peer" provides no cover for her. Why would the dependency court believe she would resist returning to drugs if she did not resist socializing with a male peer. Thus, Mothers assertion in this appeal that she demonstrated to the trial court that she had overcome her substance abuse problem has no substance.
Moreover, Mothers most recent period of sobriety was only three months long, and it was achieved while she was immersed in a residential treatment program and subject to random drug testing. Such limited, structured sobriety does not demonstrate enough about her commitment to Angel, as her discharge from her first program shows. Further, even if Mother had been given six additional months to reunify with Angel and had successfully stayed in her treatment program and sober for all or a portion of that time, for a total of nine months, nine months is not a substantial period of sobriety. Moreover, much or all of that period of sobriety would have been structured and monitored, not where she had the pressures of making her way on her own and caring for Angel. Mother essentially asked the court to speculate that six more months would make her ready to care for Angel and fight her drug addiction on her own.
Given Mothers years-long history of drug use, the difficulty of remaining drug free, and her having already failed at a drug rehabilitation program once in this case, we fail to see how the trial court can be said to have abused its discretion when it ruled that it could not possibly find that (1) Mothers drug use circumstances had changed significantly since the court made its order terminating her reunification services and setting the section 366.26 hearing and (2) it would be in Angels best interests to give Mother six more months of reunification services rather than to begin the process of providing Angel with a permanent home by terminating the parents parental rights and pursuing adoption of the child by the foster parents who loved him, who were providing for his physical and emotional health in a loving home, and with whom he was happy and comfortable.
Clearly Mothers presentation indicated at best that her circumstances were changing, not changed. Clearly there was no abuse of its discretion in not granting Mothers section 388 petition.
We refer Mothers appellate attorney to In re Sade C. (1996) 13 Cal.4th 952, and we observe that it is not necessary to raise an issue in every case in which counsel is appointed to represent a parent in a dependency appeal, including the instant case.
DISPOSITION
The order from which Mother has appealed is affirmed.
WE CONCUR:
KLEIN, P. J.
KITCHING, J.