Opinion
B310981
09-15-2021
In re K.M. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. K.O., Defendant and Appellant.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Navid Nakhjavani, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County Super. Ct. Nos. 18CCJP07114A, 18CCJP07114C Philip L. Soto, Judge.
Affirmed.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Navid Nakhjavani, Principal Deputy County Counsel, for Plaintiff and Respondent.
EGERTON, J.
K.O. (mother) used methamphetamine while pregnant with A.C. The juvenile court declared A.C. and mother's other child, K.M., dependents based on mother's substance abuse issues. Mother failed to comply with her case plan and continued to use methamphetamine throughout much of the reunification period. After the court terminated her reunification services, mother filed petitions under Welfare and Institutions Code section 388 requesting the court return the children to her custody or grant further reunification services with overnight or unmonitored visitation. The court denied the petitions because mother failed to show a change in circumstances or that the requested changes would be in the children's best interests. Mother argues the court abused its discretion in denying her petitions. We disagree and affirm.
Future statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. Events leading to dependency
In October 2018, the Los Angeles County Department of Children and Family Services (DCFS) learned mother tested positive for methamphetamine (meth), amphetamine, and marijuana shortly after giving birth to A.C. K.M. was three years old at the time.
K.M.'s and A.C.'s fathers did not participate in the proceedings, and they are not parties to this appeal.
During DCFS's ensuing investigation, mother admitted she had been using meth several times per week for the past 11 months. Mother initially claimed she stopped using the drug a week or two before A.C.'s birth. When pressed by the social worker, she admitted she may have used the day she gave birth. Mother said she was hospitalized for meth use in 2014, and she stopped using it at that time. However, she started using again after a recent triggering event involving her sister. Mother also disclosed she used marijuana daily, even while pregnant with A.C.
The court ordered the children removed from mother's custody. DCFS placed them with their maternal aunts.
2. Jurisdiction and disposition
On November 5, 2018, DCFS filed a petition to declare K.M. and A.C. dependents under section 300. As relevant to this appeal, the petition alleged mother has a history of substance abuse and is a current abuser of amphetamine, methamphetamine, and marijuana, rendering her incapable of providing the children with regular care and supervision. Mother entered a no contest plea, and the juvenile court sustained the petition as to her.
The petition included additional allegations regarding domestic violence and substance abuse by the father of mother's other child, E.B., who was also named in the petition. Those allegations do not involve K.M. or A.C., and mother does not challenge any orders concerning E.B.
At the March 14, 2019 disposition hearing, the court declared K.M. and A.C. dependents, removed them from mother's custody, and ordered DCFS to provide reunification services. Mother's case plan required she complete a drug program, attend parenting classes, participate in individual counseling, and submit to weekly drug tests. The court granted mother monitored visitation.
3. Reunification period
In an August 2019 status review report, DCFS noted the children were happy and thriving in their placements. The children had established bonds with their maternal aunts, who indicated they were prepared to begin the adoption process. According to DCFS, mother had made little effort to visit her children, failed to enroll in services, and did not complete her weekly drug testing.
The court conducted the six-month review hearing in October 2019. At the hearing, mother claimed she recently enrolled in an inpatient drug program and was attending drug abuse counseling, individual counseling, a parenting class, and domestic violence counseling. DCFS was not able to confirm mother's representations.
Against DCFS's urging, the juvenile court extended mother's reunification services. The court admonished mother: “You've got six months to get clean, sober and a safe place to live, an ability to care for [your children] and put a roof over them and food on the table and be the mom that they need 24/7, 365 days a year.”
According to a series of DCFS reports following the hearing, mother completed a three-month inpatient substance abuse treatment program in March 2020. She was randomly drug tested during the program, and tested negative each time. Mother subsequently enrolled in an outpatient substance abuse program with individual counseling, completed a domestic violence course, and began participating in a mental health treatment program. She failed to enroll in a parenting class.
After completing her inpatient program, mother was a “no show” at all but one of the required weekly drug tests. The single time mother did appear, in July 2020, she tested positive for amphetamine and methamphetamine. Despite the positive test, mother denied to DCFS that she was using meth.
At the October 7, 2020 12-month review hearing, mother's counsel urged the court to extend her reunification services. Counsel pointed out that mother had completed a drug program and enrolled in counseling and parenting classes. Counsel also argued drug testing had been difficult due to the COVID-19 pandemic.
The court continued the hearing several times due to the COVID-19 pandemic.
DCFS and the children's counsel urged the court to terminate mother's services. The children's counsel argued that mother had relapsed, as evidenced by her failed drug test in July 2020. Counsel also pointed out that mother had not finished a parenting class, which is typically the easiest program to complete.
The court terminated mother's services and set a section 366.26 permanency planning hearing. The court explained that mother had failed to visit the children regularly or make significant progress in resolving her drug problem. The court noted that if mother enrolled in another drug program and demonstrated sobriety and the ability to care for her children, she could file a section 388 petition for a change of order.
Following the court's termination of reunification services, mother continued to miss her scheduled drug tests. The children's caregivers also reported she was missing and showing up late to visits. In addition, K.M.'s behavior was regressing after visits, which included unexplained crying spells, talking back, and not listening.
According to DCFS, the caregivers continued to meet the children's physical, medical, educational, and emotional needs. A.C. referred to his caregiver as “mama.”
4. Section 388 petitions
In early February 2021, mother filed petitions under section 388 requesting the court order the children placed in her home or reinstate reunification services with overnight or unmonitored visitation. Mother indicated the changes were warranted because she enrolled in parenting classes in December 2020. Mother stated the changes would be in the children's best interests because she loves them and they would benefit from the unique and special bond with their biological mother.
In response to the petitions, a DCFS investigator interviewed mother on February 24, 2021. Mother reported she had completed parenting and domestic violence classes, continued to participate in individual counseling, and was meeting with a substance abuse counselor. She also recently reenrolled in an outpatient substance abuse program.
Mother admitted she failed to show up for her weekly drug tests because she would have tested “dirty.” She also admitted drinking alcohol and using meth as recently as two weeks earlier. She said she would drink “a couple days every other week, ” and use meth when she drank too much. Mother agreed to drug test the next day. Despite multiple reminders from DCFS, she failed to show up for the test.
Mother claimed she continued to visit the children consistently and attempted to call K.M. every day. She acknowledged, however, that she had not formed a connection with A.C.
Contrary to mother's representations, the children's caregivers reported she had been missing visits and stopped calling K.M. consistently. K.M. would become visibly upset after learning she could not visit or talk to mother. K.M.'s caregiver also believed mother was high during some of her visits with the children.
K.M. told DCFS she wanted to live with mother, but mother's house was “terrible.” She said mother sometimes misses visits, which made her sad and angry. K.M. said she liked living in her caregiver's home.
The court considered the section 388 petitions at a March 5, 2021 hearing. Mother's counsel urged the court to grant the petitions because mother had been making progress by completing parenting and domestic violence classes, and “engaging in ongoing efforts with substance abuse programs.”
The children's counsel requested the court deny the petitions because “[w]e are still where we were on day one in this case.” Counsel pointed out that mother recently used meth and admitted she had no connection with A.C.
The court denied the petitions on the basis that there had been no change in circumstances and granting the petitions would not be in the children's best interests. The court noted that mother still had an unresolved drug issue, granting additional services and visitation would be detrimental to the children, and the children needed permanency.
At the subsequent permanency planning hearing, the court terminated mother's parental rights. The court then selected a permanent plan of adoption and identified the maternal aunts as the prospective adoptive parents.
Mother timely appealed.
DISCUSSION
Mother's sole contention on appeal is that the juvenile court abused its discretion by denying her section 388 petitions.
1. Relevant Law and Standard of Review
Section 388 allows a parent of a dependent child to petition the juvenile court to change, modify, or set aside its prior orders. (§ 388, subd. (a)(1).) Section 388 was designed as an “ ‘ “escape mechanism” '... [to] allow[ ] the juvenile court to consider a legitimate change in the parent's circumstances after reunification services have been terminated.” (In re Alayah J. (2017) 9 Cal.App.5th 469, 478.) It affords a parent a last opportunity for continued reunification services prior to the final resolution of custody status. (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.)
At the hearing on a section 388 petition, the parent has the burden to prove (1) the existence of new evidence or changed circumstances justifying a change in the juvenile court's prior orders, and (2) the proposed change would promote the best interests of the child. (In re A.A. (2012) 203 Cal.App.4th 597, 611; In re Priscilla D. (2015) 234 Cal.App.4th 1207, 1216-1217.)
“Not every change in circumstance can justify modification of a prior order. [Citation.] The change in circumstances must relate to the purpose of the order and be such that the modification of the prior order is appropriate.” (In re A.A., supra, 203 Cal.App.4th at p. 612.) Generally, this means the change in circumstances must remove or ameliorate the problem that led to the prior order. (Ibid.)
When considering the best interests of the child, the court must take into account that “ ‘[a]fter the termination of reunification services, a parent's interest in the care, custody and companionship of the child is no longer paramount. [Citation.] Rather, at this point, the focus shifts to the needs of the child for permanency and stability. [Citation.]' ” (In re Jacob P. (2007) 157 Cal.App.4th 819, 828.) As a result, a parent at this stage must establish how the requested change will advance the child's need for permanency and stability. (In re J.C. (2014) 226 Cal.App.4th 503, 527.)
We review the denial of a section 388 petition for abuse of discretion. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71.) An abuse of discretion occurs when the juvenile court exceeds the bounds of reason by making a determination that is arbitrary, capricious, or patently absurd. (In re Marcelo B. (2012) 209 Cal.App.4th 635, 642, disapproved on other grounds in In re Caden C. (2021) 11 Cal.5th 614, 637, fn. 6.)
2. The Juvenile Court Did Not Abuse Its Discretion by Denying Mother's Petitions
The juvenile court provided two reasons for denying mother's petitions: (1) she failed to show sufficiently changed circumstances; and (2) she failed to show the requested changes would be in the children's best interests. Mother challenges both findings, which we consider in turn.
Mother insists she showed changed circumstances consisting of her progress on her case plan, including the completion of parenting classes and reenrollment in an outpatient substance abuse program. While mother's continued efforts to comply with her case plan are commendable, they fail to demonstrate the removal or amelioration of the problem that led to her loss of custody and the termination of reunification services: her ongoing substance abuse. (See In re A.A., supra, 203 Cal.App.4th at p. 612.) Indeed, despite mother's progress in completing her case plan, she admitted using meth just weeks before the hearing on her petitions. As the children's counsel aptly observed at the hearing, with respect to mother's drug use, she was “still where [she was] on day one in this case.”
Mother suggests her most recent drug use constituted a relatively short relapse that was merely a “[slip-up] on the road to recovery.” The record belies this characterization. It is true that mother demonstrated a three-month period of sobriety while attending an inpatient substance abuse program. After completing the program in March 2020, however, she repeatedly refused to submit to drug testing, which she later admitted was because she would have tested “dirty.” Mother's relapse, in other words, was not short; it began in March 2020 and continued up until the hearing on her section 388 petitions in March 2021. On this record, the court could have reasonably concluded mother failed to demonstrate changed circumstances sufficient to warrant her requested relief.
Even if mother had shown a sufficient change in circumstances, the juvenile court reasonably denied the petitions on the basis that her requested changes-custody of the children or continued reunification services with increased visitation-would not be in the children's best interests.
Mother clearly was not in a position to take custody of the children, and she does not argue otherwise. Mother admitted she used meth just weeks before the hearing, and she continued to refuse to drug test, indicating her drug use was ongoing. The juvenile court could have reasonably concluded mother's unresolved substance abuse issues would pose a risk to the children's physical health, safety, and well-being if returned to her custody. (See In re Christopher R. (2014) 225 Cal.App.4th 1210, 1219 [a finding of substance abuse is prima facie evidence of a parent's inability to provide regular care to children six years old and younger].)
The record also supports a finding that further reunification services and increased visitation would not be in the children's best interests. Mother received services for more than a year and a half before the court terminated them. Despite participating in multiple substance abuse programs, individual counseling, and parenting classes, she was unable to resolve, or make substantial progress resolving, her substance abuse issues. Mother made no effort to explain why additional reunification services would be successful when all previous efforts had failed. Given this history, the court could reasonably conclude further reunification services would be futile.
Moreover, as of the hearing on the section 388 petitions, the children had been living with their caregivers for more than two years; for A.C., this represented nearly his entire life. The children had bonded to their caregivers, who were committed to providing them permanent and stable homes through adoption. K.M. said she liked living with her caregiver, and A.C. referred to his caregiver as “mama.” DCFS consistently reported the caregivers were meeting the children's physical, medical, educational, and emotional needs. By all accounts, the children were thriving in their current placements.
In contrast, mother's relationship with the children was not so positive. Mother, in fact, admitted she never formed a strong bond with A.C. Moreover, following the termination of reunification services, she would often show up late to or entirely miss her scheduled visits. Although K.M. enjoyed spending time with mother, she expressed feeling sad and angry when mother missed a visit. K.M.'s caregiver also reported that visits were causing the child to regress behaviorally, and she suspected mother was high while visiting the children.
Under these circumstances, the juvenile court could reasonably conclude the children's best interests would not be served by granting mother additional reunification services and increased visitation. (See In re Stephanie M. (1994) 7 Cal.4th 295, 317 [“ ‘When custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.' ”]; In re Shirley K., supra, 140 Cal.App.4th at p. 72 [a child had “a compelling interest in remaining with the only family she had ever known and with whom she had a reciprocal bonded relationship of unconditional love and affection”].) The court did not abuse its discretion by denying mother's petitions.
DISPOSITION
We affirm the juvenile court's orders.
We concur: EDMON, P. J.LAVIN, J.