Opinion
B310460
10-28-2021
In re J.D., a Person Coming Under the Juvenile Court Law. v. C.B., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK74786A, Brett Bianco, Judge. Affirmed.
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant. 1
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent. 2
BAKER, J.
Five years after the juvenile court assumed dependency jurisdiction over C.B.'s (Mother's) son J.D. because of Mother's substance abuse issues, and two-plus years after the juvenile court terminated jurisdiction with a permanent plan of legal guardianship, Mother filed a change of circumstances petition seeking to reinstate reunification services. J.D. wished to remain under the guardianship of his grandmother and, in the years since the juvenile court terminated jurisdiction over J.D., Mother did not maintain regular visitation and repeatedly tested positive for drugs. Aware of these facts, the juvenile court denied the change of circumstances petition and we consider whether that was an abuse of its discretion.
I. BACKGROUND
J.D. was born in 2007. His father, M.D. (Father), is not a party to this appeal. Mother has four younger children with her current partner, R.S. (R.S.): J.S. (born in 2011), D.S. (born in 2013), S.S. (born in 2015), and R.S., Jr. (born in 2016). 3
We filed an opinion on October 18, 2021, in another case concerning this family unit. The opinion specifically addresses compliance with the Indian Child Welfare Act and Mother and R.S.'s requests for unification services regarding J.S., D.S., and S.S.
The Department's motion for judicial notice of the record on appeal in B310457, which concerns orders as to J.S., D.S., and S.S., but includes court records relevant to J.D., is granted. The Department's motion for judicial notice of two petitions filed by Mother and six juvenile court orders in this case is also granted. (Evid. Code, §§ 452, 459.) The Department's motion to augment the record with the latter documents is denied as moot.
J.D. was the subject of two prior dependency petitions. In 2009, the juvenile court sustained allegations that Mother and Father's drug abuse put J.D. at substantial risk of serious physical harm. In 2011, the juvenile court sustained allegations that, among other things, Mother and Father's drug abuse and R.S.'s history of domestic violence put J.D. at substantial risk of serious physical harm.
The current dependency proceedings commenced in 2014, when the Department received a referral alleging Mother and R.S. use drugs, their home was unsanitary and lacked utilities, and J.D. and J.S. were "filthy" and begged neighbors for food. The Department filed a petition alleging J.D., J.S., and D.S. were put at substantial risk of physical harm by Mother and R.S.'s substance abuse, including their use of cocaine, which rendered them incapable of providing regular care for the children.
At a jurisdiction and disposition hearing in December 2015, the juvenile court assumed jurisdiction over J.D. and his siblings and ordered family reunification services. Mother's case plan included drug and alcohol treatment with weekly testing, individual counseling, parenting classes, and monitored visitation. J.D. was placed with his paternal grandmother, T.D.
In advance of a juvenile court review hearing, J.D. told Department personnel he hoped to live with T.D. until his 18th birthday. At the review hearing, the juvenile court found Mother to be in "moderate" compliance with her case plan. The juvenile court further found the Department had not provided reasonable services to Mother and ordered further reunification services.
The Department subsequently reported Mother missed several drug tests and tested positive for hydrocodone in April 2017. Mother was arrested twice in 2017, including an arrest for 4 assault with a firearm. She was participating in a substance abuse treatment program, but the Department emphasized this was the third program in which she had enrolled within the last year. Visitation between Mother and J.D. was inconsistent, and J.D. told a Department social worker he did not miss having visits with Mother because he preferred to spend time playing with his friends. The juvenile court terminated reunification services and set the matter for a Welfare and Institutions Code section 366.26 permanency planning hearing.
Undesignated statutory references that follow are to the Welfare and Institutions Code.
The Department recommended a permanent plan of legal guardianship with the paternal grandmother. The juvenile court denied a change of circumstances petition in which Mother sought further reunification services, appointed the paternal grandmother J.D.'s legal guardian, and granted Mother monitored visitation.
Prior to an October 2018 permanency planning review hearing, the Department reported J.D. and Mother enjoyed their monitored visits but J.D. was "content and happy" with his paternal grandmother and wanted to continue living with her. The juvenile court summarily denied a change of circumstances petition in which Mother sought further reunification services and terminated dependency jurisdiction over J.D.
More than two years later, in December 2020, Mother filed a change of circumstances petition seeking to terminate the legal 5 guardianship and reinstate her reunification services. Mother contended her circumstances had changed because, among other things, she completed six months of drug testing and obtained adequate housing and transportation. She contended further reunification services were in J.D.'s best interest because J.D. looked forward to visits with her and he had not seen his siblings in several years.
Mother filed a total of three section 388 petitions in December 2020, two of which the juvenile court summarily denied as duplicative.
Although Mother told the Department she had been "clean for six years" and had "over 150 clean tests," the Department reported that, in addition to missing several drug tests between January and July 2020, Mother tested positive for cocaine twice in May 2020. Mother blamed the Department and J.D.'s paternal grandmother for her failure to visit J.D. in three years because she did not have the paternal grandmother's contact information and the paternal grandmother "always had issues" with her.
The Department reported Mother's positive drug tests in connection with change of circumstances petitions Mother filed with respect to J.D.'s siblings. The juvenile court ruled on these petitions and the petition as to J.D. at the same hearing.
The Department and counsel for J.D. opposed Mother's petition at a hearing in February 2021. J.D.'s attorney emphasized he was 13 years old, "very able to communicate his thoughts and feelings," and wanted to remain with his paternal grandmother. The juvenile court denied the petition on the grounds that Mother's circumstances had not changed and reinstating reunification services would not be in J.D.'s best 6 interest. The juvenile court reasoned that although Mother had obtained adequate housing and "some stability and employment as well," these facts were "something of a red herring because the issue here . . . was substance abuse." Mother demonstrated "paper compliance" with her case plan, "but clearly not much was learned especially since we would expect [her] at this point . . . to be really fighting and doing remarkably well if [she] really were serious about having a 388 granted. [¶] And yet we still see substance use by . . . Mother . . . at a time when [she] know[s] the Department's going to be scrutinizing all [her] moves to see if [she is] truly serious."
Addressing the juvenile court, Mother asked for another chance to reunify with J.D. and his siblings and suggested the Department fabricated her positive drug test results: "All of a sudden, I've made these reports and I made these complaints to the Department and then they say I've got dirty tests. I've never had [a] dirty test before. I have never tested dirty." The juvenile court acknowledged "[t]here is always a side-just the human side of the court that, of course, would love to give people more chances because we're all deserving of more chances and to correct past mistakes. But in dependency proceedings, the focus is always on the permanency and stability for the children. And this case has been around for a very, very long time. There is no more time left under the law for further chances."
Mother's statement followed the juvenile court's ruling on her section 388 petition.
II. DISCUSSION
Mother contends the juvenile court did not appreciate its discretion to grant her change of circumstances petition and, in 7 any case, erred in finding her circumstances had not changed and reunification services would not be in J.D.'s best interest. As we shall explain, the juvenile court recognized its discretion to grant Mother's petition despite the time elapsed since it asserted jurisdiction over J.D. The juvenile court did not abuse its discretion in denying the petition because Mother continued to use drugs, she was no longer visiting J.D., and J.D. wanted to remain in the care of his grandmother.
A. The Juvenile Court's Discretion Under Section 388
A section 388 petitioner "has the burden of showing by a preponderance of the evidence (1) that there is new evidence or a change of circumstances and (2) that the proposed modification would be in the best interests of the child." (In re Mickel O. (2011) 197 Cal.App.4th 586, 615 (Mickel O.).) We review the juvenile court's denial of a section 388 petition for abuse of discretion. (In re Alayah J. (2017) 9 Cal.App.5th 469, 478-479; In re J.T. (2014) 228 Cal.App.4th 953, 965.)
Mother argues the juvenile court's statement that there was "no more time left . . . for further chances" indicates it did not recognize the scope of its discretion to grant the section 388 petition. In context, however, these remarks merely highlight consequences of the juvenile court's finding that Mother did not satisfy her burden under section 388. The juvenile court understood it could grant the petition if the facts and circumstances warranted it; indeed the court held a hearing on the petition but found that circumstances had not changed and further reunification efforts would not be in J.D.'s best interest. 8
B. Mother Did Not Demonstrate Changed Circumstances
A change in circumstances warranting the reinstatement of reunification services must be "substantial." (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.) Changing-as opposed to changed-circumstances will not suffice. (Mickel O., supra, 197 Cal.App.4th at 615, citing In re Casey D. (1999) 70 Cal.App.4th 38, 47, disapproved on another ground in In re Caden C. (2021) 11 Cal.5th 614, 636, fn. 5.)
Mother contends she demonstrated changed circumstances because she was no longer "living the lifestyle of a drug addict." She emphasizes her improved housing and career stability and suggests isolated positive tests in May 2020 do not undermine her showing that she was "free from drug addiction." But the positive tests in May 2020 were not isolated events. In addition to missed drug tests throughout the dependency proceedings, Mother tested positive for cocaine and opiates in July 2016, hydrocodone in April 2017, cocaine in October and November 2017, opiates in February 2018, and cocaine in May 2020. These positive drug tests coincided with Mother's pregnancy with one of J.D.'s younger siblings and her participation in one of several treatment programs.
The fact that Mother was able to improve her living situation does not establish that she addressed the substance abuse issues that gave rise to jurisdiction. Mother relies on In re J.M. (2020) 50 Cal.App.5th 833 (J.M.), a case in which the petitioner "ameliorated all concerns leading to dependency court jurisdiction" by avoiding contact with her abusive former partner for more than a year. (Id. at 837, 846.) The petitioner in J.M. prevailed notwithstanding her violation of a no-contact order as to her abuser on only one occasion (id. at 840-841), but that 9 circumstance is not comparable to Mother's repeated cycles of recovery and relapse here. The juvenile court could reasonably conclude nine months of sobriety (at best) following several years of recurring drug use under the scrutiny of the Department and treatment programs showed at most changing-not changed- circumstances. (In re Clifton B. (2000) 81 Cal.App.4th 415, 423-424 (Clifton B.) [holding seven months of sobriety insufficient to demonstrate changed circumstances where petitioner's lengthy history of drug abuse included "periods of sobriety alternated with recurring drug use"]; see also Amber M. (2002) 103 Cal.App.4th 681, 685-686 [affirming denial of section 388 petition where the petitioner "had been clean for 372 days, [but] she had previously relapsed twice during the course of th[e] case"] (Amber M.).)
C. Mother Did Not Demonstrate Further Reunification Services Are in J.D.'s Best Interest
Even assuming Mother refrained from substance abuse between May 2020 and February 2021 and this was sufficient to demonstrate changed circumstances, she did not prove further reunification services would be in J.D.'s best interest. In making this determination, courts consider "the seriousness of the problem leading to the dependency and the reason for its continuation; the strength of the parent-child and child-caretaker bonds and the time the child has been in the system; and the nature of the change of circumstance, the ease by which it could be achieved, and the reason it did not occur sooner." (Amber M., supra, 103 Cal.App.4th at 685.)
The first and third factors do not support Mother's position. Her drug abuse came to the attention of the Department due to 10 reports that she was seriously neglecting J.D. and his younger siblings. As courts have recognized-and this case demonstrates-chronic substance abuse is not easily addressed. (Clifton B., supra, 81 Cal.App.4th at 423 ["relapses are all too common for a recovering drug user"].) Mother emphasizes that she had a traumatic childhood and suffered several health crises during the dependency proceedings to explain her delay in addressing her drug abuse. These hardships do not meaningfully distinguish her latest period of sobriety from earlier, unsuccessful efforts at recovery.
The relative strength of J.D.'s bonds to his paternal grandmother and Mother also weighs against further reunification services. J.D. has been placed with his paternal grandmother since 2015, and Mother acknowledged she did not visit J.D. in the three years prior to the hearing on her petition. And even before this estrangement, J.D. expressed a desire to live with his grandmother until his 18th birthday. J.D. was 13 years old when the juvenile court ruled on Mother's petition, and his attorney was confident in his ability to express his thoughts and feelings. Thus, while J.D.'s preference is not dispositive (see In re Patrick S. (2013) 218 Cal.App.4th 1254, 1265 [13-year-old "was entitled to have his wishes considered"]), it is a compelling testament to the bond established during his many years in his grandmother's care and good reason to conclude his best interest would not be served by disrupting the guardianship and restarting reunification services. (See In re Kimberly F. (1997) 56 Cal.App.4th 519, 531 ["[T]he disruption of an existing psychological bond between dependent children and their caretakers is an extremely important factor bearing on any section 388 motion"].) 11
DISPOSITION
The juvenile court's February 10, 2021, order denying Mother's section 388 petition is affirmed.
We concur: RUBIN, P. J., MOOR, J. 12