Opinion
G058706
05-27-2020
In re JESUS C, a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. C.H., Defendant and Appellant.
William Hook, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Deborah B. Moore, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 19DP0196) OPINION Appeal from an order of the Superior Court of Orange County, Antony C. Ufland, Judge. Affirmed. William Hook, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Deborah B. Moore, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
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C.H. (the mother) appeals from the denial of a petition pursuant to Welfare and Institutions Code section 388 requesting reunification services with the child, Jesus C. (Jesus or the child). The mother asserts the steps she took to continue drug treatment after services were terminated required the juvenile court to grant her petition to return Jesus or grant further services. We find no abuse of the court's discretion in denying the petition. While the steps she took were laudatory and commendable, the court's decision that they did not sufficiently reflect changed circumstances was well within its discretion. Accordingly, we affirm the order.
Subsequent statutory references are to the Welfare and Institutions Code.
I
FACTS
Jesus was born in early 2019. At the time of his birth, the mother was involved in open dependency cases involving Jesus's four siblings and half-siblings. The primary issues in those cases involved unresolved substance abuse and domestic violence between the mother and the father (who is not a party to the instant case). The mother had a significant history of child abuse referrals and had struggled through previous services. Services as to two of her children had been terminated in August 2018, and parental rights as to another child had been terminated in February 2019. This court affirmed the denial of the mother's section 388 petition in that case. (In re J.C. (Aug. 19, 2019, G057430) [nonpub. opn.].) That child was set to be adopted the same month Jesus was born.
Orange County Social Services Agency (SSA) detained Jesus under section 300, subdivisions (b) and (j), alleging the mother had tested positive for methamphetamine in May and June 2018 and had missed over 20 drug tests between October and the child's birth. She was not compliant with her substance abuse treatment program. The petition also alleged a history of domestic violence with multiple partners, including the father. Although two protective orders had been issued, the mother continued to have contact with the father, and one of the reasons for the removal of the mother's other children was domestic violence. The father had a lengthy criminal history that included arrests and convictions related to domestic violence. The petition further alleged facts relating to the removal and dependency status of Jesus's siblings and half-siblings. The juvenile court ordered Jesus detained at the detention hearing. He was placed in the same foster home as one of his siblings, who was two years old at the time.
When interviewed by SSA, the mother denied all the allegations, claiming she did not have a substance abuse problem and that she had last used drugs prior to her pregnancy. She admitted to using methamphetamine in January 2018, before her pregnancy, after the death of her adult son. She claimed her missed drug tests were due to being placed on bed rest by her doctor, but she could not recall when that began. The mother stated she was in the last stages of her outpatient treatment program and that she was attending 12-step meetings.
The dates of bed rest were subsequently verified as from December 10, 2018 to January 11, 2019, and she was excused due to maternity leave from February 4 to February 8, 2019.
The mother also denied the allegations regarding domestic violence, stating that the only domestic violence with the father had occurred before the birth of their children. She denied currently being in a relationship or living with him, stating they were friends. She also stated she had not seen the father while a protective order was in place, but was reminded she became pregnant during that time.
The mother's history in counseling was mixed. She participated from July 7 to August 25, 2018. The counselor reported the mother's willingness to address her history of domestic violence had improved: "The client willingly shared with the counselor her marital/familial history. She was able to identify the emotional states and behaviors she had experienced. The client continued to grieve the death of her oldest son through the counseling process. She made good use of the therapeutic process regarding this traumatic event a[n]d loss. The client was able to demonstrate setting boundaries; however, further progress is needed regarding appropriate language and self-expression."
With regard to the impact of her substance abuse on her children, the counselor stated further progress was needed: "The client demonstrated an understanding of the effects of drug use on children/family. More progress is needed regarding distress tolerance skills to avoid a relapse. The client was able to articulate her relapse prevention strategies. The client would benefit by associating with more individuals who are committed to being clean and sober." The counselor also opined that further progress was needed to protect her children from domestic violence. The counselor stated the mother "was cooperative" and admitted she had violated the restraining order with the father.
The report SSA received from the mother's outpatient drug treatment program revealed that she tested positive for methamphetamines/amphetamines approximately four weeks after the child's birth and missed a test a week earlier. The report from the program to the mother stated she had missed approximately a dozen tests and tested positive on four occasions in 2018.
The mother's outpatient program recommended she participate in a residential program due to the recent positive test. Staff believed the mother had relapsed, although the mother continued to deny drug use. Her counselor described the mother's participation as "'okay'" but stated she had been more consistent since November and December 2018, opining that she had "come 'a long way.'"
The mother was initially hesitant about residential treatment but then expressed interest in the program. She entered a residential program on April 12, 2019. On April 30, her case manager reported to SSA that she was participating as required and her drug tests were negative. The mother stated the program had been a positive experience thus far.
At the jurisdiction hearing on May 6, 2019, both parents submitted on the reports. The court found the allegations in the petition true and assumed jurisdiction.
In late May, the mother reported to the social worker that she was looking for work and requested a counseling referral. She also began supervised visits with the child, which monitors reported as appropriate, loving, and reflecting good parenting skills.
At the disposition hearing in mid-June, SSA reported the mother continued to visit and that the visits went well, as well as reporting that the mother remained in her residential treatment program. SSA recommended, based on section 361.5, subdivision (b), that further services not be provided. SSA stated, in its evaluation: "Although it is evident the mother is eager to reunify with the child, as evidenced by her statements, interest in beginning visits, and participation in the recommended services, such as the substance abuse testing and treatment, 12-Step meeting attendance, Parent Mentor Program, and Personal Empowerment Program, the Social Services Agency is worried the child, will continue[] to be exposed to harm and lack of permanency, due to both parents' unresolved substance abuse issues . . . . The mother has been adamant she is compliant with her case plan services as to [two of her other children]; however, it is evident both parents have been unable to demonstrate substantial progress resulting in termination of Family Reunification Services and parental rights. . . . [¶] In summary, it is evident the parents have an unresolved substance abuse problem, specifically with . . . methamphetamine. Despite having been offered services in the past to address substance abuse issues, as well as the history of domestic violence, the parents have failed to demonstrate they have benefitted from services and their ability to maintain sobriety. The Social Services Agency is concerned the mother and father have unresolved substance abuse issues which can hinder their ability to provide for the care of the child's health, safety, and well-being; thus, placing the child at risk of being exposed to drug use, as well as harm and/or neglect if left in their care. Additionally, the Social Services Agency is worried the mother and father have a history of domestic violence and will engage in incidents placing the child at risk of harm and neglect."
Among other things, this statute provides that reunification services need not be provided to parents where the court has terminated services after the parent failed to reunify with a sibling or half-sibling of the dependent child. --------
Accordingly, SSA recommended no services and scheduling a permanency planning hearing pursuant to section 366.26. The parents stipulated to the report and the case plan.
The juvenile court agreed and denied further services pursuant to section 361.5, subdivisions (b)(10), (11), and (13), and scheduled a hearing under section 366.26 to select a permanent plan for Jesus. Under a negotiated agreement, the mother was authorized conditional funding for services until the date set for the 366.26 hearing in October 2019.
A few weeks later, the mother was terminated from her residential treatment program for having a cell phone. She told the social worker she obtained the phone to speak to her children. The mother said she was staying with a friend and working at a catering business, attending 12-step meetings and visiting Jesus regularly. The social worker obtained approval for the mother to resume drug testing. Her tests over the next few months were negative. SSA also reported that the mother continued to participate on the parent mentor program and that her progressed had improved significantly during the prior two months.
In October, the mother filed a petition pursuant to section 388 requesting the juvenile court return Jesus to her custody or grant her reunification services. The mother stated she had voluntarily continued to participate in the residential treatment program, drug testing, and other services.
The juvenile court held an evidentiary hearing on the modification petition in November. The mother testified that she had been sober about nine months. She also spoke about her participation in voluntary services, including her almost three months in the residential treatment program prior to her termination, and the programs she participated in while at the facility, including parenting classes, therapy, and "drug classes." The mother stated she had subsequently continued drug testing and outpatient programs for drug and alcohol treatment, she had attended 12-step meetings, a parent mentoring program, and counseling. She denied being aware of any failed drug tests during 2019 prior to her inpatient admission.
SSA and Jesus, through his attorney, opposed the motion, stating the mother's circumstances had not sufficiently changed. At the end of the hearing, the juvenile court concluded the mother's circumstances were changing, but had not changed sufficiently and that granting the modification petition was not warranted.
At the conclusion of the section 366.26 hearing, the juvenile court found Jesus adoptable and terminated parental rights. The mother now appeals.
II
DISCUSSION
The only issue in this appeal is whether the juvenile court erred by failing to grant the mother's section 388 petition after a hearing on the merits. We review such a determination for abuse of discretion.
"We must uphold the juvenile court's denial of appellant's section 388 petition unless we can determine from the record that its decisions '"exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court."'" (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)
In pertinent part, section 388, subdivision (a)(1), provides: "Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order [the] court previously made . . . ." If the petitioning party presents a prima facie case that the statute applies, a hearing is granted. That party "must also show that the proposed change would promote the best interests of the child." (In re J.C. (2014) 226 Cal.App.4th 503, 525.) After reunification services have been terminated, a child's best interests with respect to a section 388 petition includes the child's need "'for permanency and stability.'" (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) The request for a modification, as the mother correctly states, must be viewed in the context of the entire dependency proceeding. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
We agree with the juvenile court that while the mother had shown her circumstances were changing, she failed to show they had changed to the extent that the child's best interests would be served by a further delay in permanency and stability. SSA correctly points out that throughout the mother's lengthy substance abuse history, she had persistently failed to demonstrate she could achieve long-term sobriety. That history, which began at age 15, included previous periods of sobriety, as well as relapses and failed tests, all punctuated by the continuous denial of her problems. Even after detention in this matter, she missed tests. Despite ample evidence to the contrary, she testified at the modification hearing that the residential program was her first and only treatment program, residential or outpatient. Her lack of honesty reflects a minimization of the seriousness of her problem, an issue present during the entire pendency of this matter.
Given the entire history of this case, the juvenile court did not abuse its discretion by failing to grant the mother's petition for modification. The steps she took were necessary but not sufficient. She simply did not offer evidence of a change of circumstances that would justify a modification, and the court did not abuse its discretion in reaching that conclusion.
III
DISPOSITION
The order is affirmed.
MOORE, ACTING P. J. WE CONCUR: FYBEL J. IKOLA, J.