Opinion
B319610
10-16-2023
In re G.C., A Person Coming Under the Juvenile Court Law. v. J.P., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Jill Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Bryan Mercke, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. DK14755A, Stephanie Davis, Judge Pro Tempore. Reversed.
Jill Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Bryan Mercke, Deputy County Counsel, for Plaintiff and Respondent.
BAKER, J.
J.P. (Mother) appeals the denial of her change of circumstances petition seeking custody of her daughter G.C. (Minor) or, failing that, reinstitution of reunification services with unmonitored visitation. The limited question we are asked to decide is whether Mother's petition cleared the prima facie bar that would entitle her to an opportunity to present evidence and argument at a hearing before the court ruled on her petition.
I. BACKGROUND
A. The Dependency Petition, Jurisdiction, and Disposition
In August 2015, when Minor was two years old, the Los Angeles County Department of Children and Family Services (the Department) opened an investigation into Minor's wellbeing. The Department had received information that Mother was a current user of illegal drugs, had recently been arrested for a drug-related offense, and repeatedly left Minor in the care of the maternal grandmother for extended periods of time.
When interviewed by the Department, Mother admitted she was arrested three months earlier for possession of methamphetamine. Her on-demand drug tests for the Department were negative, however.
The Department filed a dependency petition and the juvenile court detained Minor and placed her in the home of the maternal grandmother, where she had been living with Mother. Ultimately, the Department filed an amended petition that alleged, among other things, Minor was at substantial risk of suffering serious physical harm as a result of Mother's history of abusing marijuana and methamphetamine.
In advance of the adjudication hearing, the Department interviewed Minor's father and re-interviewed Mother and the maternal grandmother-all of whom advised Mother's substance abuse problem began eight years earlier (at age 13) after she had been abused by an extended family member. Mother admitted her drug abuse as a teen was so serious she was sent to a rehabilitation clinic in Baja California. The maternal grandmother explained that because she would not allow Mother in her home when she was using drugs, Minor was often left in her care for lengthy periods. Following the initiation of dependency proceedings, Mother made an appointment to enroll in a drug treatment center, but ultimately elected not to do so.
Shortly before the adjudication hearing, Mother admitted she recently used methamphetamine. Mother told the Department she was willing to enter a drug rehabilitation program in the future but was not ready to do so yet.
At the adjudication hearing, which was held in December 2016, the juvenile court sustained the drug abuse allegation against Mother. The court removed Minor from Mother's custody and ordered monitored visitation. As part of Mother's case plan, the court ordered various reunification services for Mother, including a full drug and alcohol program with aftercare, weekly drug and alcohol testing, and participation in a 12-step program.
B. Termination of Mother's Reunification Services and Appointment of a Legal Guardian for Minor
Between December 2016 and December 2017, Mother repeatedly attempted to complete a drug rehabilitation program but was never successful. In April 2017, one month after enrolling at an outpatient treatment center, Mother was expelled due to inconsistent tests and attendance. Then, in October 2017, Mother was discharged one day before completing a 90-day residential rehabilitation program due to inappropriate behavior. Two weeks after that, Mother was dismissed from a sober living home for failing to complete a drug test and displaying erratic behavior. Finally, in December 2017, Mother was discharged from another outpatient program due to missed drug tests and a lack of attendance.
Mother told a Department social worker that she stopped showing up for drug testing and participating in rehabilitation services because she knew the test results would be "dirty" as a result of her decision to continue using drugs. At the time, Mother was living in a friend's van and she said she wanted the maternal grandmother to become Minor's legal guardian "because she sees what she is putting her family through and keeps messing up." Mother's plan was to "get her life together" and then return to court and file a Welfare and Institutions Code section 388 (section 388) change of circumstances petition.
In July 2017, the maternal grandmother told the Department she was no longer interested in adopting Minor; instead, she was willing to become the girl's legal guardian so as to permit a future reunification with Mother.
At the six-month review hearing, held in December 2017, Mother formally requested that the maternal grandmother be evaluated as a legal guardian and advised the juvenile court she would file a section 388 petition at an appropriate time in the future. After finding Mother made only "partial" progress in alleviating the circumstances which had necessitated Minor's removal, the court terminated reunification services and set a permanency planning hearing.
In advance of the permanency hearing, the Department reported Minor was happy and felt safe in the maternal grandmother's home and wished to remain there. The Department recommended the maternal grandmother be appointed Minor's legal guardian. At the permanency hearing, the juvenile court granted the maternal grandmother legal guardianship over Minor and terminated its jurisdiction.
C. Mother's Section 388 Petition
Three years later, in late January 2022, Mother filed a section 388 petition requesting the juvenile court return Minor to her care or, in the alternative, reinstate reunification services and grant unmonitored visitation. Mother asserted she had "been sober since March 2020" and had also "completed both an in-patient and out-patient [rehabilitation] program." Mother characterized her sobriety as a "significant" change in circumstance and argued that, in view of their "pre-existing bond," a return to her care would be in Minor's best interest. Mother alleged she could provide Minor with "safety, stability[,] and security." Mother further alleged her compliance with her case plan showed "she is a great mother [who] deserves to parent her child with the love and support [s]he needs."
In support of her petition, Mother submitted three letters from Tarzana Treatment Centers (TTC). The first letter, dated December 2, 2021, affirmed Mother completed an 87-day residential treatment program, which included classes on parenting, addiction education, relapse prevention, and coping skills. The first letter also advised that throughout her residential treatment Mother tested negative for all substances. According to the letters' authors (a counselor and senior supervisor), Mother's "prognosis [wa]s good that she will remain in long-term recovery." The second letter from TTC, dated December 13, 2021, written by the same senior supervisor but a different counselor, advised that Mother was currently enrolled in an "intensive" 180-day outpatient substance abuse program, which, among other things, required weekly randomized drug tests. Mother was not scheduled to complete the outpatient program until June 2022. The third letter, dated December 21, 2021, stated Mother submitted to drug tests 18 times during the period from September 8 to December 21, 2021, with negative results each time.
Mother also submitted documentation from 2017 showing completion of a domestic violence course, attendance at Department-sponsored meetings for parents, and a Department log for monitored visitation.
Mother also presented a TTC document entitled "Integrated Treatment Plan Update/Review." The document, which was dated October 7, 2021, contained typed, diary-like entries by Mother on her progress toward various short-term goals. Representative entries included: "I am halfway done with this program [and] now it is time to start making new goals for the next 30 days"; "I am building new healthy boundaries with my family and daughter"; "My new goal and focus are building [a] new relationship with my family"; "I want to work on spirituality, negativity and getting a sponsor after treatment"; "I do not like my weight, but I am unwilling to stop eating, so I am going to start being more active"; and "I need on-going mental health services."
In addition, Mother submitted copies of handwritten logs of communications with Minor between September 2021 to November 2021 (i.e., during her time in TTC's residential program). The logs briefly documented 40 different interactions (including video calls). Many of the entries documented what was going on in Minor's and Mother's lives at the time. For example, over the course of two days in late October 2021, Mother talked five times with Minor about the latter having a cavity filled and the outfit she was going to wear at a family "get together." Mother also recorded a day when she picked Minor up from school and took her to the doctor, and on another day, Mother recorded Minor said she had a surprise for Mother (a dolphin necklace). There were also some entries of a weightier nature: "She [i.e., Minor] misses me a little.... She does not want me to know about her.... She doesn't want to share her feelings....Addressed that I love her and need to know what it is that she expects of me."
Mother also submitted with her petition certificates of completion or participation in a domestic violence course and a parenting program.
Five days after Mother filed her section 388 petition, the juvenile court summarily denied it without an evidentiary hearing. Without explanation, the court checked boxes on a form order to indicate the petition "does not state new evidence or a change of circumstances" and "the proposed change of order . . . does not promote the best interest of the child."
II. DISCUSSION
While we express no view on whether Mother is entitled to the change in custody or additional reunification services and unmonitored visits she sought by way of her section 388 petition, we hold the juvenile court erred by denying the petition without first holding an evidentiary hearing.
The court's finding that Mother did not state new evidence or a change of circumstances is unjustified: after earlier repeated struggles with substance abuse and failures to complete drug treatment, the petition and supporting evidence indicated Mother had abstained from drug use for nearly two years, successfully completed one residential drug treatment program, and was successfully participating in a follow-up outpatient program-all with no positive drug test results. This was evidence that Mother had made significant progress doing what she said she was going to do: file a section 388 petition after she got her life together.
The juvenile court's alternative finding, that Mother had not made a prima facie showing that the requested change in order would be in Minor's best interest, is also infirm. The prima facie bar is a low one (see, e.g., In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413-1414), and the evidence of continued positive interaction between Minor and Mother, in combination with Mother's showing of the nature of changed circumstances in addressing her substance abuse, was sufficient to clear that bar. The juvenile court should have held a hearing to allow it to more carefully assess whether relief was warranted, and we shall remand for that purpose.
A. Section 388 Standards
Section 388 provides that "[i]f it appears that the best interests of the child . . . may be promoted by the proposed change . . ., the court shall order that a hearing be held ...." (§ 388, subd. (d).) The statute functions as an "escape mechanism" for parents following the termination of reunification services or an order after a permanency planning hearing. (In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Marilyn H. (1993) 5 Cal.4th 295, 309.) It "accords a parent the right to petition the juvenile court for modification of any of its orders based upon changed circumstances or new evidence. [Citations.] To obtain the requested modification, the parent must demonstrate both a change of circumstances or new evidence, and that the proposed change is in the best interests of the child. [Citations.]" (In re Alayah J. (2017) 9 Cal.App.5th 469, 478.)
While proof of changed circumstances and the child's best interests is necessary to merit relief, the burden to obtain an evidentiary hearing before a court decides whether relief is warranted is, of course, lower: a parent "need only make a prima facie showing." (Marilyn H., supra, 5 Cal.4th at 310.) In a case our Supreme Court cited with approval in Marilyn H. (ibid.), the Court of Appeal emphasized the "safeguards to prevent arbitrariness in precluding . . . hearings [on section 388 petitions]. Specifically, a petition must be liberally construed in favor of its sufficiency [citation] and a hearing may be denied only if the application fails to reveal any change of circumstance or new evidence which might require a change of order. Only in this limited context may the court deny the petition ex parte.... 'Thus, if the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.' [Citation.]" (Jeremy W., supra, 3 Cal.App.4th at 1413-1414, fn. omitted; see also In re Aljamie D. (2000) 84 Cal.App.4th 424, 432-433 [parent "needed only to show 'probable cause'; she was not required to establish a probability of prevailing on her petition"]; In re Heather P. (1989) 209 Cal.App.3d 886, 891 [rejecting due process challenge to section 388's grant of discretion to decide whether to hold a hearing because section 388 petitions must be liberally construed and courts will order a hearing "if the petition presents any evidence that a hearing would promote the best interests of the child"].)
In deciding whether a prima facie showing has been made, a juvenile court "may consider the entire factual and procedural history of the case." (In re Daniel F. (2021) 64 Cal.App.5th 701, 711.) "Successful petitions have included declarations or other attachments which demonstrate the showing the petitioner will make at a hearing of the change in circumstances or new evidence." (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
We review the summary denial of a section 388 petition for an abuse of discretion. (In re Samuel A. (2020) 55 Cal.App.5th 1, 7; In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079.)
B. Mother's Section 388 Petition (with Attached Records) Made the Requisite Prima Facie Showing to Warrant a Hearing
In support of her petition, Mother alleged a substantial change in the circumstances that had caused Minor to be brought within the dependency system, namely, Mother's struggles with substance abuse. Mother asserted she had been sober since 2020 and provided evidence showing that for the first time since dependency proceedings had been initiated she completed a drug rehabilitation program. In addition, she provided evidence that she was currently enrolled in an out-patient program and had been consistently testing "clean" for drugs for at least four months.
That amply meets the prima facie bar to demonstrate changed circumstances notwithstanding the juvenile court's unexplained determination to the contrary. Indeed, the showing of changed circumstances Mother made here is comparable to the showing the Court of Appeal held sufficient in Aljamie D. The mother in that case had a substance abuse problem that led to a dependency finding and the Court of Appeal held the mother "[c]learly" made a showing of changed circumstances on her section 388 petition by presenting evidence that she tested "clean" for over two years, consistently visited her children, and completed numerous educational programs and parenting classes. (Aljamie D., supra, 84 Cal.App.4th at 432.) Here, Mother presented evidence-including drug test results-that she had been sober for just shy of two years, she had completed one substance abuse program and remained enrolled in another, and continued to maintain contact with Minor even while in residential substance abuse treatment. That is changed circumstances.
The Department argues, however, that Mother still made no prima facie showing that a change in the juvenile court's prior orders would be in Minor's best interest. Liberally construing the petition and the attached materials, we believe the prima facie threshold was cleared.
In determining whether the proposed change would be in a child's best interests, courts often consider "[1] the seriousness of the problem leading to the dependency and the reason for its continuation; [2] the strength of the parent-child and child-caretaker bonds and the time the child has been in the system; and [3] the nature of the change of circumstance, the ease by which it could be achieved, and the reason it did not occur sooner." (In re Amber M. (2002) 103 Cal.App.4th 681, 685.)
Mother's drug abuse problem can be fairly described as serious, but so can her most recent efforts to overcome it. After repeatedly failing to complete a drug treatment program in prior years, Mother completed a residential program and was enrolled in good standing in an outpatient program. At the time she filed her section 388 petition, she reported being sober for almost two years and her drug test results tended to back up her report (showing negative tests as late as December 2021). Thus, while drug addiction is a serious problem that requires vigilance to address and overcome, the seriousness of the problem at the time Mother petitioned for relief in January 2022 is not what it once was.
The logs of communications between Mother and Minor that were submitted with Mother's section 388 petition also appear to demonstrate a continuing connection between the two-at times of an explicitly parental nature. The log entries indicate Minor read to Mother, Mother picked Minor up from school and took her to the doctor, Mother and Minor spent an hour together that was a "really great time" at the end of which Minor kissed Mother goodbye, Mother gave Minor permission to leave the country for five days (apparently for a wedding in Mexico), and Mother and Minor discussed friendships and their day-to-day life. To be sure, there were other indications that their relationship was at times strained, but that is unsurprising under the circumstances and a topic that could be more fruitfully explored at an evidentiary hearing. In our view, the logs overall suggest Mother might be able to present testimony or other evidence at a hearing of a significant parent-child bond-and "might" is all that is required at the prima facie stage. (In re Angel B. (2002) 97 Cal.App.4th 454, 461 ["The court may deny the application ex parte only if the petition fails to state a change of circumstance or new evidence that even might require a change of order . . ."]; but see In re Kimberly F. (1997) 56 Cal.App.4th 519, 531 [although "the bond to the caretaker cannot be dispositive [citation], lest it create its own self-fulfilling prophecy, . . . the disruption of an existing psychological bond between dependent children and their caretakers is an extremely important factor bearing on any section 388 motion"].)
Finally, in considering the nature of the change in circumstance and why it did not occur sooner, we are reminded that Mother herself recommended the juvenile court make the guardianship order it did with the proviso that she intended to file a section 388 petition once she made greater strides toward getting "her life together." That sort of insight is to be commended and, after almost two years of apparent progress, we believe Mother's showing merited a hearing to more closely examine whether she had succeeded and whether any of the relief she requested was warranted.
DISPOSITION
The juvenile court's order summarily denying Mother's section 388 petition is reversed. The cause is remanded with directions to redetermine Mother's petition after an evidentiary hearing-at which the parties are not limited to the record as of February 2022 and may introduce evidence of ensuing events and current circumstances.
We concur: RUBIN, P. J., MOOR, J.