Opinion
E070153
12-06-2018
In re R.S. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. S.P., Defendant and Appellant.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. J268908-J268911, J272895) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed. Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
S.P. (Mother) has a history of abusing drugs, failing to provide for her children's needs and leaving the children unattended that led to the San Bernardino County Department of Children and Family Services (CFS) removing her five children from her home. Mother's reunification services were terminated and a Welfare and Institutions Code section 366.26 hearing was set. About five months later, Mother filed a section 388 petition, which was summarily denied. Mother appeals from the juvenile court's order denying her second section 388 petition without a hearing.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
C.G. is the father of X.G. and J.G. Z.S. is the father of Z.S., R.S. and G.S. The fathers are not parties to this appeal.
On appeal, Mother argues the juvenile court erred in summarily denying her second section 388 petition without a hearing because she had established prima facie evidence of changed circumstances and granting the petition was in the children's best interest. Finding no error, we affirm the order denying Mother's section 388 petition.
II
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of CFS on December 20, 2016, when two general neglect referrals were received involving Mother's four older children: then six-year-old X.G., five-year-old J.G., two-year-old Z.S., and eight-month-old R.S. The referrals alleged that Mother left her children home unattended and that she would not feed them. The referrals also alleged that Mother would become intoxicated to the point where she would not care for them and that Mother would scream at the children.
A social worker responded to the referral on December 28, 2016, and met with Mother. Mother, who was the primary caregiver to the children, denied any drug use. However, she appeared to be visibly under the influence. Although she agreed to drug test the next day, Mother failed to show for her drug test.
Mother also denied any neglect to her four children and claimed the children received appropriate medical and dental care. However, neither of the two older children could recall the last time they had seen a doctor or a dentist. In addition, the social worker observed that Z.S. had a makeshift bandage consisting of a napkin and plastic wrap that covered an oozing and bleeding second degree burn on the child's left forearm. Mother initially claimed that she sought medical treatment for Z.S., but later admitted that the child received no medical attention for his injury. R.S. appeared malnourished, had a bald spot in the back of his head that appeared flat, and presented with a bloody, scabbed face. Mother posited that R.S. was suffering from psoriasis or eczema but also lied about seeking any medical treatment for it. The children were taken to the emergency room at Loma Linda where Z.S. received treatment for his second degree burn, and R.S. received a diagnosis of eczema with the appropriate treatment for his condition. R.S. also tested positive for amphetamines. There was no explanation as to how the drug entered R.S.—whether it was by ingesting the breast milk or when R.S. ingested the substance itself. On December 29, 2016, Mother informed the social worker that she wanted to be truthful and told the social worker that the children were behind on their immunizations. As a result, Mother's two older children—X.G. and J.G.—did not attend school or daycare.
In regard to substance abuse, although Mother initially denied history or current use of any substances, she later admitted that she had used ETOH, methamphetamines, smoked, and consumed alcohol on a weekly basis. Mother initially claimed that she last used drugs two months ago, but later admitted to drinking alcohol and getting drunk when the children were asleep. Mother disclosed that she felt overwhelmed, lacked a support system, grieved the loss of her mother, and struggled with caring for her four children and maintaining the household. Mother asked CFS to take custody of her four children in order to work on herself and to be a better mother. The children were taken into CFS custody.
On January 3, 2017, CFS filed petitions on behalf of the children pursuant to section 300, subdivision (b) (failure to protect).
At the detention hearing on January 4, 2017, the children were detained and removed from Mother's custody. Mother was ordered to drug test, but failed to show up at the drug testing facility.
The social worker interviewed Mother on January 17, 2017. At that time, Mother admitted to a history of substance abuse including methamphetamines. She stated that the last time she used was in early January when the children were detained. Mother's substance abuse problem was long-standing and dated back to when she was 17 years old. Mother was open, honest in recognizing that she used drugs as a poor coping strategy, and agreeable to treatment. Mother also disclosed an extensive history of domestic violence with one of the children's fathers. She acknowledged that she neglected some of the children's needs; for example, she failed to seek medical help for R.S.'s rash and that the older children were behind on their immunizations and were not enrolled in school. Mother explained that she was the only caregiver to the four young children and that she was overwhelmed and "extremely isolated." She believed CFS's involvement was in the children's best interest as she was aware she needed to make changes.
The jurisdictional/dispositional hearing was held on January 25, 2017. Mother waived her constitutional rights and submitted on the jurisdiction and disposition. The juvenile court found the allegations in the petitions true and declared the children dependents of the court. Mother was provided with reunification services and ordered to participate. Mother's case plan required Mother to participate and complete individual counseling, a parenting class, an outpatient substance abuse program, a 12-step program, and randomly drug test. Mother's therapy goals included developing an ability to be a protective parent and to place the children's needs first. The therapy sessions were to continue until the treatment goals were achieved. Mother's service objectives included developing a positive support system with friends and family, maintaining a stable and suitable residence, meeting the children's physical, emotional, medical, and educational needs, and monitoring the children's health, safety and well-being.
By the six-month review hearing, CFS recommended terminating Mother's services. Despite being referred to services and meeting with the social worker multiple times to discuss her case plan, Mother failed to follow through with the services or to make progress. After having participated in eight sessions of individual counseling and nine sessions of parenting classes, she was terminated for " 'excessive absences,' " and therefore, she never completed either program. Mother also failed to attend her substance abuse program and was discharged from that program as well. In addition, it was unclear if Mother had been sober for any period of her reunification services because she repeatedly failed to drug test for at least three months. Mother even appeared to be under the influence at some of the visits with her children. Moreover, Mother was pregnant with her fifth child and informed the social worker she would not be able to care for her other children because she wanted to focus on her new child.
On July 25, 2017, Mother set the matter contested on the issue of termination of services, and the six-month hearing was continued to October 4, 2017. Mother was ordered to drug test, but again failed to comply.
CFS continued to recommend that Mother's services be terminated. In September 2017, while still in reunification services with the older four children, Mother gave birth to her fifth child, G.S. Although Mother tested negative for substances at G.S.'s birth, she admitted that she had used methamphetamines during her pregnancy with her most recent use a week before G.S.'s birth in September 2017. Mother later advised the social worker that she had lied about her last use being in September 2017 because she had hoped to be a " 'priority' " candidate for a bed in an inpatient program if she were pregnant and using. Mother claimed that in actuality she had last used in August 2017 and that was why she had not tested positive at G.S.'s birth. Mother acknowledged that she had an open CFS case with her other four children and that they were removed because of her substance abuse. She also admitted that she was not compliant with her reunification plan ordered for her four older children, but informed the social worker that she was planning to enroll in an inpatient substance abuse program upon discharge from the hospital.
On September 19, 2017, CFS filed a petition on behalf of G.S. pursuant to section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling).
At the detention hearing the following day on September 20, 2017, G.S. was removed from parental custody. Mother was ordered to drug test and was advised that failure to comply with the drug test would be considered a positive test.
On September 21, 2017, Mother tested positive for opiates.
The contested six-month review hearing regarding the four older children was held on October 4, 2017. At that hearing, Mother's counsel requested additional services for Mother, arguing Mother's lack of participation in services was due to the fact that Mother had recently given birth to her fifth child and had "a very difficult pregnancy with a lot of health issues that impeded [Mother's] ability to participate fully in the case plan." CFS's counsel pointed out that Mother had not completed any component of her case plan, she had continued to fail to drug test, and she had tested positive as recently as September 2017. CFS's counsel also asserted that Mother had not even visited the children in the month of August. Following argument, the juvenile court terminated Mother's services and set a section 366.26 hearing. A plan of legal guardianship was proposed for X.G. and J.G. while an adoption was recommended for Z.S. and R.S.
Father of X.G. and J.G. filed a notice of intent to file a writ petition on October 6, 2017. On November 2, 2017, Father C.G.'s writ petition was dismissed by this court, and the writ record was ordered incorporated in this appeal.
X.G. and J.G.'s plan was later changed to adoption.
On October 6, 2017, in regard to G.S.'s case, CFS recommended that the allegations in G.S.'s petition be found true and that Mother be provided with reunification services. Mother was enrolled in an intensive outpatient prenatal drug treatment program through Inland Behavioral Health Services.
However, on October 11, 2017, CFS recommended that no reunification services be provided to Mother in G.S.'s case pursuant to section 361.5, subdivision (b)(10). CFS noted that Mother's services for her other four children had been terminated on October 4, 2017, and Mother had tested positive for opiates.
The contested jurisdictional/dispositional hearing in G.S.'s case was held on November 17, 2017. At that time, the juvenile court found the allegations in G.S.'s petition true and declared G.S. a dependent of the court. The court denied Mother reunification services pursuant to section 361.5, subdivision (b)(10), and set a section 366.26 hearing.
In a report dated January 24, 2018, CFS noted that Mother had not been consistent in visiting the children or maintaining contact with her four children. The social worker also reported that R.S. was diagnosed with "Posttraumatic Stress Disorder Unspecified" (PTSD), and was receiving Inland Regional services for his developmental delays. He was also participating in "continued specialized instruction ABC interventions" once a week for 60 minutes. Z.S. was enrolled in a preschool program, but had exhibited some behavioral difficulties by failing to follow directions, being disruptive and screaming at teachers. X.G. was participating in services at Phoenix Clinic. R.S. and Z.S. were placed together in a foster family home while J.G. and X.G. were placed in a different foster family home. CFS held a matching meeting with a prospective adoptive family, but needed additional time to locate a concurrent planning home for the four children. CFS had identified an adoptive home for G.S. and recommended termination of parental rights in G.S.'s case. Although the children were placed in three different foster homes, the children were happy and bonded to their respective foster families.
On January 30, 2018, Mother (in propria persona) filed a section 388 petition on behalf of all five children. She claimed that she had "completed what was asked of [her] when [she] had CFS services." Although she failed to attach any supporting documents, she contended that "[she had] certificates & letters." In regard to the best interest of the children, Mother stated that the children wanted to return to her and that she was their mother. Mother requested additional services and increased sibling visits.
The court heard Mother's section 388 petition on February 1, 2018. At that hearing, Mother's counsel acknowledged that Mother had filed the section 388 petition "on her own." Mother's counsel also stated that Mother had failed to attach any supporting documentation, but noted that Mother was engaged in an outpatient treatment program and had "two or three weeks" remaining to complete the program. Mother's counsel further asserted that Mother had claimed that she was engaged in counseling, but "she [didn't] have proof of that." Mother's counsel asked the court to deny Mother's section 388 petition without prejudice. The juvenile court denied Mother's section 388 petition, finding the request did not state new evidence or a change of circumstances and that granting the petition was not in the children's best interest.
On March 6, 2018, Mother (in propria persona) filed a second section 388 petition with supporting documents. In her petition, Mother sought custody of her five children, or in the alternative, a grant of additional reunification services along with unsupervised visits, overnights, and weekends. Mother contended that "[she had] completed what was asked of [her]." She enrolled in a substance abuse class at Inland Valley Recovery Services (IVRS) which she completed on February 13, 2017; she drug tested randomly and attached one drug test result to her section 388 petition; she enrolled in an aftercare drug treatment program at IVRS where she was allowed "to vent with other peeps"; she enrolled in a parenting class on March 1, 2018; she had engaged in therapy since October 13, 2017; and provided an "N/A meeting attendance sheet" showing she had attended 36 meetings. Mother believed that changing the prior court orders were in the children's best interest and enumerated multiple reasons which ranged from her claims of finally being sober to expressing her love of her children, to claiming they expressed a desire to come home, and to wanting another chance "to reunify with [her] 5 amazing children." To support her position, Mother attached, among other documents, an undated letter from her therapist that identified Mother's treatment goals as "to increase overall feelings of self-worth, increase confidence in her ability to be a stable parent for her children, and to develop the skills necessary to be an emotionally and physically available mother." Mother also attached two letters of recommendation from her father and brother.
The attached certificate of completion was dated February 13, 2018. --------
In a report dated March 6, 2018, in regard to G.S.'s case, the social worker noted that Mother had been inconsistent with attending visitations. G.S.'s caretaker reported that the parents would schedule visitations and then cancel last minute. When they would attend about once a month, they focused their attention on G.S.'s brothers.
On March 7, 2018, the juvenile court summarily denied Mother's section 388 petition, finding no new evidence or a change of circumstances and granting the petition was not in the children's best interest.
On March 15, 2018, Mother filed a timely notice of appeal challenging the denial of her second section 388 petition without a hearing.
III
DISCUSSION
Mother argues the juvenile court erred in summarily denying her second section 388 petition because her petition with supporting attachments showed a prima facie case for changed circumstances and best interest of the children. We disagree.
Under section 388, a juvenile court order may be changed or set aside "if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) "[I]f the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition." (Ibid.; § 388, subd. (d) ["If it appears that the best interests of the child . . . may be promoted by the proposed change of order . . . , the court shall order that a hearing be held . . . ."].) The 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." (Zachary G., at p. 806.) We review the juvenile court's order denying a hearing for abuse of discretion. (Id. at p. 808.) "It is rare that the denial of a section 388 motion merits reversal as an abuse of discretion . . . ." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 522.)
Mother contends the juvenile court should have held a hearing on her second section 388 petition because she established a prima facie showing of changed circumstances "before the court placed her five children in three separate foster homes for adoption" and that the proposed change would promote the best interest of the child. Mother alleged her changed circumstances consisted of enrolling in IVRS on October 31, 2017, completing the program at IVRS on February 13, 2018, attending 36 narcotics anonymous/alcoholics anonymous (NA/AA) meetings, drug testing negative, continuing to engage in individual therapy since October 2017, and enrolling in an aftercare program at IVRS.
We need not decide whether the juvenile court erred in finding there was no prima facie showing of changed circumstances because Mother failed to make a prima facie showing that granting the second section 388 petition and placing the children in Mother's care, or in the alternative, providing her with additional reunification services and unsupervised and overnight visits was in the children's best interest.
Parent and child share a fundamental interest in reuniting up to the point at which reunification efforts cease. (In re R.H. (2009) 170 Cal.App.4th 678, 697, disapproved on another ground in John v. Superior Court (2016) 63 Cal.4th 91, 98-100.) By the point of a section 366.26 hearing to select and implement a child's permanent plan, however, the interests of the parent and the child have diverged. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254.) Therefore, after reunification efforts have terminated or bypassed, the court's focus shifts from family reunification toward promoting the child's needs for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) This is a difficult burden to meet when reunification services have been bypassed or terminated. This is because, "[a]fter the termination of reunification services [or bypass of services], a parent's interest in the care, custody and companionship of the child is no longer paramount. [Citation.]" (In re Angel B. (2002) 97 Cal.App.4th 454, 464 (Angel B.).) In fact, there is a rebuttable presumption continued foster care is in the child's best interest. (Ibid.) Such presumption applies with even greater strength when adoption is the permanent plan. (Ibid.) "A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child." (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
At the time Mother filed her second 388 petition, four months after services were bypassed in G.S.'s case and shortly before the section 366.26 hearing in all five of the children's cases, the children's interest in stability was the juvenile court's foremost concern, outweighing any interest in reunification. The prospect of allowing the children to be placed in Mother's care or providing Mother with liberal visitations and additional reunification services to see if Mother would and could do what she was required to do to regain custody would not have promoted stability for the children, and thus would not have promoted the children's best interest. (Angel B., supra, 97 Cal.App.4th at p. 464.)
Here, although Mother claims that she had resolved her substance abuse problem and was "sober for seven months" prior to the March 2018 hearing, the only drug test result that Mother had attached in support of her second section 388 petition was dated February 13, 2018—the date of her graduation from her IVRS drug program. Mother did not provide any evidence of her sobriety prior to that date. In fact, neither Mother's first section 388 petition dated January 30, 2018, nor Mother's second section 388 petition dated March 6, 2018, included Mother's drug test results from November 2017 until February 12, 2018. Therefore, contrary to Mother's calculations of being sober for "seven months," the evidence demonstrates that Mother was presumably sober for four months from November 2017 until March 2018.
Mother had a long history of abusing drugs. Mother had used drugs since she was 17 years old with her most recent use in September 2017. Mother had only recently begun to make efforts to combat her long-standing drug problem. It was not until G.S. was detained following his birth in September 2017 that Mother began attending NA meetings at IVRS. Under such circumstances and in light of Mother's history of abusing drugs, the juvenile court could reasonably conclude that Mother had not made a prima facie showing of changed circumstances or that reinstating reunification services would have promoted stability for the children and be in their best interest. (Angel B., supra, 97 Cal.App.4th at pp. 464-465.)
In Angel B., supra, 97 Cal.App.4th 454, the appellate court rejected the mother's contention the juvenile court erred in denying her section 388 petition without holding a hearing. The mother in Angel B. had a long history of drug abuse, unsuccessful rehabilitation attempts, and failure to reunify with another child. After the mother was denied reunification services, she began to improve, enrolling in a treatment program, testing clean for four months, completing various classes, and obtaining employment. Regular visits with her child also went well. (Id. at p. 459.) Nevertheless, when she filed her section 388 petition for reunification services, the court summarily denied her petition without a hearing. The Court of Appeal affirmed, finding no abuse of discretion in the juvenile court refusing to hold a hearing. (Id. at p. 462.)
The appellate court in Angel B. acknowledged the petition showed the mother was doing well, "in the sense that she has remained sober, completed various classes, obtained employment, and visited regularly with [the child]." (Angel B., supra, 97 Cal.App.4th at pp. 464-465.) The court also assumed for purposes of the appeal "that this time her resolve is different, and that she will, in fact, be able to remain sober, remain employed, become self-supporting and obtain housing." (Id. at p. 465, italics omitted.) Nevertheless, the court concluded "such facts are not legally sufficient to require a hearing on her section 388 petition." (Ibid.) The court explained: "[T]here is a rebuttable presumption that, in the absence of continuing reunification services, stability in an existing placement is in the best interest of the child, particularly when such placement is leading to adoption by the long-term caretakers. [Citation.] To rebut that presumption, a parent must make some factual showing that the best interests of the child would be served by modification." (Ibid.) The mother in Angel B. did not make such a showing. Nor does Mother here.
Moreover, the record shows that Mother had not completed her case plan, had not met her case plan objectives, and had not eliminated the reasons for the children's removal. She did not provide any evidence of being able to meet the children's emotional, medical, physical, and developmental needs. There was no showing that she understood R.S.'s PTSD or that she attended any of his Inland Regional services or that she ever followed up on any of her children's developmental and medical needs. In fact, Mother was inconsistent in her visits with her children and did not visit the children the entire month of August 2017. She also failed to establish a safety network that would prevent her from becoming overwhelmed and isolated with caring for five young boys. Placing five young children in Mother's custody or granting Mother liberal visitations and additional reunification services when she still had unresolved substance abuse issues and was failing to meet her case plan objectives would only prolong the children's adoption into a stable and loving home. Although the children were placed in three different foster homes, the children were happy and bonded to their respective foster families.
Mother's second section 388 petition provided a typed one-page statement regarding why she believed granting her section 388 petition was in the children's best interest. Other than the statement from Mother that the children had been "without" her for "over a year" and that she was attending drug classes and NA/AA meetings, Mother's allegations are conclusory, not a factual showing that granting reunification services would promote the children's best interest. (In re Ramone R. (2005) 132 Cal.App.4th 1339, 1348-1349 ["allegations of her [section 388] petition were to be liberally construed, but conclusory claims are insufficient to require a hearing"].)
Mother's second section 388 petition offered no evidence of the nature of her bond or that the children desired to live with her. (See Angel B., supra, 97 Cal.App.4th at p. 465 [the mother's petition, denied without a hearing, stated that she had bonded with the child, who was happy to see her and reached for her on their visits].) We conclude Mother failed to make a prima facie showing that the children's best interest would be served by placing them with her, or that providing Mother with liberalized visits and additional reunification services would be in the children's best interest.
Mother's reliance on In re Aljamie D. (2000) 84 Cal.App.4th 424 (Aljamie D.) is unavailing. In Aljamie D., the court terminated reunification services in March 1998, at which point the mother had only recently begun complying with the case plan. (Id. at p. 427.) In January 2000, the mother filed a section 388 petition seeking to modify the court's order of long-term foster care. (Id. at p. 428.) "Appellant alleged that she had fully complied with the case plan, and attached completion certificates for parenting classes, a domestic violence program, Via Avanta Residential Program, a job readiness workshop, a perinatal health education program, and a 'behavior change & skills building prevention' program. She further alleged that the children wish to return to her, and that she had visited the children consistently. She requested a 60-day trial visit." (Ibid.) The appellate court concluded the juvenile court abused its discretion by summarily denying the mother's section 388 petition. That case, however, is factually distinguishable given the older ages of the minors involved and their expressed desire to live with their mother in Aljamie D. The appellate court in Aljamie D. concluded that the petition showed changed circumstances and that the best interest of the minors might be served by a change in the juvenile court's prior order, stating, "[a]ppellant's petition showed that the best interests of the children potentially would be advanced by the proposed 60-day visit and eventual change in the placement order. The children, ages 9 and 11, repeatedly made clear that their first choice was to live with their mother. While a child's wishes are not determinative of her best interests, the child's testimony that she wants to live with her mother constitutes powerful demonstrative evidence that it would be in her best interest to allow her to do so." (Id. at p. 432.)
Here, by contrast, the children were much younger when they were removed from Mother's care and never reported a desire to live with Mother. X.G. and J.G. were six and five years old, respectively, when they were removed from Mother's care. Z.S., R.S., and G.S. were all two years old or younger when they were detained and were three years old or younger at the time the second section 388 petition was filed and considered. They have not been returned to Mother's custody since their detention, and they have never expressed a desire to be returned to her. Additionally, unlike the mother in Aljamie D., the facts in the present case show that Mother failed to maintain regular visits with or to develop a bond with the children. Further, in contrast to the mother in Aljamie D., here, Mother had a much shorter period of sobriety and had failed to complete her entire case plan by the time she filed her second section 388 petition.
Based on the foregoing, the juvenile court did not abuse its discretion in summarily denying Mother's second section 388 petition without a hearing.
IV
DISPOSITION
The juvenile court's orders summarily denying Mother's section 388 petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. SLOUGH
J.