Opinion
B302837
03-15-2021
In re M.B., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. LIAH B., Defendant and Appellant.
Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, Acting County Counsel, Kim Nemoy, Assistance County Counsel, and Jane Kwon, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 18CCJP03577A) APPEAL from an order of the Superior Court of Los Angeles County, Kim L. Nguyen, Judge. Affirmed. Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, Acting County Counsel, Kim Nemoy, Assistance County Counsel, and Jane Kwon, Principal Deputy County Counsel, for Plaintiff and Respondent.
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Liah B., the mother of five-year-old M.B., appeals the juvenile court's November 7, 2019 order summarily denying her petition for modification of the court's March 6, 2019 order terminating her reunification services. We affirm.
In her opening brief Liah also argued the juvenile court and the Los Angeles County Department of Children and Family Services (Department) had not complied with their duties of inquiry and notice under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) and related California law. In her reply brief Liah acknowledged the juvenile court's October 29, 2020 order directing the Department to conduct further inquiry regarding Liah's possible Blackfeet ancestry and to send all appropriate ICWA notices prior to the next scheduled hearing rendered this issue moot.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Dependency Petition and Removal of M.B. from Liah's Custody
The Los Angeles County Department of Children and Family Services (Department) received notice on June 1, 2018 that M.B., who was not yet three years old, was in police custody because Liah had been arrested and jailed for outstanding misdemeanor warrants and had threatened to commit suicide. Several days later the Department filed a petition pursuant to Welfare and Institutions Code section 300, subdivision (b)(1), alleging M.B. was at substantial risk of serious physical harm due to Liah's mental and emotional condition and abuse of cocaine and prescription medication. At the June 6, 2018 detention hearing the juvenile court ordered M.B. removed from Liah and her alleged father, limited Liah to monitored visitation and directed the Department to assess the maternal grandmother and a maternal aunt for possible placement.
Statutory references are to this code.
Liah identified Terrell W. as M.B.'s biological father, but said he had never met the child and she did not know where he was or how to contact him. At the detention hearing the juvenile court ordered the Department to conduct a due diligence search to locate Terrell.
On July 19, 2018 Liah entered a no-contest plea to a single section 300, subdivision (b)(1), count, which alleged that she was "a current abuser of cocaine and prescription medication, which renders the mother unable to provide regular care and supervision of the child. The child is of such young age requiring constant care and supervision and the mother's substance abuse interferes with the mother's ability to provide regular care and appropriate supervision of the child. The mother's substance abuse endangers the child's physical health and safety and places the child at risk of serious physical harm, damage and danger."
The court sustained the petition based on Liah's plea and, turning to disposition, declared M.B. a dependent of the juvenile court, removed her from both parents and ordered her suitably placed. Liah's family reunification services included participation in a full drug and alcohol program with weekly testing and aftercare, individual counseling and mental health counseling. Liah's visitation with M.B. remained monitored.
The Department completed a due diligence search, but Terrell's whereabouts remained unknown. Accordingly, pursuant to section 361.5, subdivision (a), the court declined to order family reunification services for him.
2. The Six-month Review Hearing and Termination of Reunification Services
The Department's December 26, 2018 status review report for the six-month review hearing (§ 366.21, subd. (e)) stated Liah was in partial compliance with her case plan. According to the report, since enrolling in a residential drug treatment program in June 2018, Liah had participated in drug counseling, parenting classes, 12-step meetings, drug testing and individual counseling. She tested positive for marijuana on July 5, 2018 and for methamphetamine on July 11, 2018 and again several other times that month. She was transferred to another residential treatment facility in early August 2018 because of her failure to maintain sobriety. She completed that treatment program on October 22, 2018 and moved to an outpatient transitional housing program. While in the second residential treatment program, Liah had regular, negative drug tests. However, following her release from that program and referral to transitional housing, Liah ceased further contact with the Department. The report also stated Liah's therapist had diagnosed her with depression and posttraumatic stress disorder.
Liah visited M.B. consistently between June and mid-October 2018, but then said she wanted to stop visits until she found stable transitional housing. Liah did not come to a visit she scheduled for November 16, 2018 and declined M.B.'s caregiver's invitation for a Christmas visit.
A last minute information report on March 6, 2019 advised the court that Liah appeared to be under the influence of drugs or alcohol when a social worker met with her at a shelter the prior month. Liah told M.B.'s caregiver in mid-January 2019 that she still was not ready to resume visits. Although she thereafter scheduled a visit for February 15, 2019, Liah failed to attend. Liah did not call M.B. after February 15, 2019 and did not respond to the caregiver's attempts to contact her. Liah was a no-show for drug testing on February 11 and February 22, 2019.
At the contested six-month review hearing on March 6, 2019, the Department explained that Liah's case plan required a six-month substance abuse program, not the two-month program Liah had completed; pointed to Liah's positive drug tests and no-shows and emphasized that she had not been visiting M.B. The Department recommended termination of reunification services, a recommendation joined by M.B.'s counsel.
The court found Liah was only in minimal compliance with her case plan, terminated reunification services and set the matter for a section 366.26 selection and implementation hearing.
The section 366.26 hearing, originally scheduled for July 3, 2019, is currently scheduled for May 4, 2021.
3. Liah's Section 388 Petition
On October 31, 2019 Liah filed a section 388 petition requesting the court return M.B. to her custody or, in the alternative, reinstate reunification services. In her petition Liah stated she had completed a residential treatment program, which included individual counseling, relapse prevention, parenting, anger management, 12-step meetings and drug testing. She also said she had received mental health services, attended outpatient programing and resumed visiting with M.B. Explaining why the requested modification would be better for her child, the petition stated Liah was now "able to devote more time to the child especially at the most crucial period of the child's life. The mother is fully able and more than willing to provide the child with the proper care [and] guidance, and has taken the lessons from her programs and classes to make permanent, substantial, and positive changes to her life and the child's life."
Attached to the petition were a number of documents evidencing Liah's participation in various programs, including letters and certificates confirming her enrollment on May 28, 2019 in a residential treatment program, her completion of that program on July 18, 2019 and her enrollment on that same date in an outpatient program on July 18, 2019. Both the residential and outpatient programs included drug testing, group therapy and individual counseling. Liah also attached her 2019 12-step meeting attendance sheets, indicating her attendance at 31 meetings from July through October 2019. A letter from the residential program stated Liah was fully engaged with high motivation, understood the importance of abstinence, had developed a relapse prevention plan and had a sponsor to help her with her 12-step program. Liah's drug test results indicated seven negative tests from June 5, 2019 to September 3, 2019.
The juvenile court denied Liah's petition without a hearing (and without Liah or her counsel being present) on November 7, 2019. Using Judicial Council form JV-183, Court Order on Form JV-180, Request to Change Court Order, the court checked the boxes next to the preprinted statements, "the request does not state new evidence or a change of circumstances" and "the proposed change of order, recognition of sibling relationships, or termination of jurisdiction does not promote the best interest of the child." The court also handwrote, "388 shows at most changing circumstances. It does not demonstrate a prima facie showing of a change in circumstances or that the requested change is in the child's best interests."
DISCUSSION
1. Governing Law and Standard of Review
Section 388 provides for modification of juvenile court orders when the moving party presents new evidence or a change of circumstances and demonstrates modification of the previous order is in the child's best interests. (In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Stephanie M. (1994) 7 Cal.4th 295, 317.) To obtain a hearing on a section 388 petition, the parent must make a prima facie showing as to both elements. (In re K.L. (2016) 248 Cal.App.4th 52, 61 (K.L.); In re G.B. (2014) 227 Cal.App.4th 1147, 1157; see Cal. Rules of Court, rule 5.570(d)(1).)
The petition should be liberally construed in favor of granting a hearing, but "[t]he prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806; accord, K.L., supra, 248 Cal.App.4th at p. 61.) The petition may not consist of "general, conclusory allegations." (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) "Successful petitions have included declarations or other attachments which demonstrate the showing the petitioner will make" at the hearing. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) When determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (K.L., at p. 62; In re Jackson W. (2010) 184 Cal.App.4th 247, 258.)
When a section 388 petition is filed after reunification services have been terminated, the juvenile court's overriding concern is the child's best interest. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) The parent's interests in the care, custody and companionship of the child are no longer paramount; and the focus shifts to the needs of the child for permanency and stability. (Ibid.; In re Vincent M. (2008) 161 Cal.App.4th 943, 955.) Because time is of the essence for young children when it comes to securing a stable, permanent home, prolonged uncertainty is not in their best interest. (See In re Josiah Z. (2005) 36 Cal.4th 664, 674 ["'[t]here is little that can be as detrimental to a child's sound development as uncertainty over whether he is to remain in his current "home," under the care of his parents or foster parents, especially when such uncertainty is prolonged'"]; In re Kimberly F. (1997) 56 Cal.App.4th 519, 531 ["our Supreme Court made it very clear in Jasmon O.[, supra, 8 Cal.4th 398] that the disruption of an existing psychological bond between dependent children and their caretakers is an extremely important factor bearing on any section 388 motion"].)
We review the summary denial of a section 388 petition for abuse of discretion. (K.L., supra, 248 Cal.App.4th at p. 61; In re A.S. (2009) 180 Cal.App.4th 351, 358.) We may disturb the juvenile court's exercise of discretion only in the rare case when the court has made an arbitrary, capricious or patently absurd determination. (In re Stephanie M., supra, 7 Cal.4th at p. 318.)
2. The Trial Court Did Not Abuse Its Discretion by Summarily Denying the Section 388 Petition
Liah's petition and attached exhibits evidencing the steps she had taken to deal with her serious substance abuse problem after termination of family reunification services in March 2019 unquestionably constituted a prima facie showing of "new evidence" satisfying the first prong of the section 388 analysis, notwithstanding the juvenile court's characterization of the petition as demonstrating "at most changing circumstances." Nonetheless, the nature and extent of Liah's ongoing recovery from addiction and whether it was adequate to address M.B.'s overriding interest in permanency and stability are precisely the appropriate focus of the second prong of the section 388 analysis, the child's best interests. (See In re J.C. (2014) 226 Cal.App.4th 503, 527 [a parent's petition to reopen reunification efforts "must establish how such a change will advance the child's need for permanency and stability"]; see also In re Ernesto R. (2014) 230 Cal.App.4th 219, 225 ["a section 388 order for reunification services at this late date would deprive [the child] of a permanent, stable home in exchange for an uncertain future"]; Cal. Rules of Court, rule 5.570(d)(1) [juvenile court may summarily deny section 388 petition that fails to show a change of circumstances or new evidence that demonstrates a modification of a prior order would promote the best interest of the dependent child].) In this regard, Liah's petition comes up short.
By its terms section 388 requires only a "change of circumstance," not that the change be long-standing. (See § 388, subd. (a)(1) [parent or other person with an interest in a dependent child may petition "upon grounds of change of circumstance or new evidence" to modify prior court order].) At least when made as a threshold bar to an evidentiary hearing, the nonstatutory distinction between a "change of circumstance" and "changing circumstances" could in some circumstances unfairly deprive a parent actively in recovery of the benefit of section 388's "escape mechanism" designed to assist parents able to reform in the period between termination of reunification services and termination of parental rights. (See In re Marilyn H. (1993) 5 Cal.4th 295, 309 [section 388 provides the "escape mechanism" that allows the court to consider new information and address a legitimate change of circumstances while protecting the child's need for prompt resolution of his or her custody status].)
"[B]est interests is a complex idea" that requires consideration of a variety of factors. (In re Kimberly F., supra, 56 Cal.App.4th at p. 530; see In re Jacob P. (2007) 157 Cal.App.4th 819, 832-833.) As discussed, after the termination of family reunification services, a parent's interests are no longer paramount. Rather, the focus shifts to the needs of the child for permanency and stability, and a rebuttable presumption arises that reinstating services for a parent and potentially jeopardizing a permanent plan of adoption is not in the best interest of the child. (See In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.)
Viewed in the context of all the evidence in the juvenile court's record from the detention hearing, jurisdiction/disposition hearing and six-month review hearing, Liah's five months of treatment and sobriety certainly do not qualify as a sustained recovery in light of her extended history of substance abuse. Liah began smoking marijuana when she was 17 years old and was still a heavy user nearly 20 years later when the dependency proceedings began. In addition, in the year prior to the initiation of this case, Liah used methamphetamine and cocaine and on at least two occasions crushed and inhaled Vicodin, which had not been prescribed for her use. The juvenile court also had information concerning Liah's past pattern of unsuccessful efforts at recovery, including treatment in residential programs, and subsequent relapse. Additionally complicating Liah's efforts at recovery were her serious mental health diagnoses and her resistance to following her therapists' recommendations for psychotropic medication.
In contrast to the uncertainty about Liah's prospects for continued sobriety, M.B. was appropriately bonded and well-adjusted in the home of her caregivers, where she had lived since mid-September 2018, as the Department advised the court in its June 13, 2019 report for the selection and implementation hearing. M.B.'s caregivers were fully committed to providing a permanent home for M.B. through adoption and were consistently meeting her medical, emotional and psychological needs. Liah, on the other hand, had not visited M.B. since October 9, 2018.
A subsequent report from the Department, dated August 14, 2019, confirmed that M.B. remained stable in her placement with her caregivers, who had been identified as her prospective adoptive parents. M.B. called her caregivers "Mommy" and "Daddy" and referred to the other two children in the home as her sisters. The caregiver's adoption home study was completed in October 2019.
The report stated Liah had resumed visitation with M.B. in July 2019.
Liah's petition made only conclusory allegations that reinstating family reunification services, with its attendant delay in providing M.B. permanency and stability, would be in the child's best interests because Liah was now willing and able to spend more time with M.B. and to provide the care and supervision she needed. It contained no evidence that allowing Liah additional time to address her substance abuse and other case issues should override the security of M.B.'s current placement with her prospective adoptive parents. Accordingly, it was not an abuse of discretion for the juvenile court to conclude the petition failed to state a prima facie case that modification of its order terminating reunification services was in the child's best interests. (See In re Anthony W., supra, 87 Cal.App.4th at p. 252 ["children should not be made to wait indefinitely for mother to become an adequate parent"]; In re Edward H., supra, 43 Cal.App.4th at p. 594 ["the prospect of an additional six months of reunification to see if the mother [could comply with her case plan objectives] would not have promoted stability for the children and thus would not have promoted their best interests"].)
DISPOSITION
The order denying Liah's section 388 petition is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.