Opinion
E077883
04-19-2022
In re K.C. et al., Persons Coming Under the Juvenile Court Law. v. D.C. et al., Defendants and Appellants. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant N.M. Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant D.C. Gregory P. Priamos, County Counsel, and Teresa K.B. Beecham and Prabhath D. Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWJ1900405, Kelly L. Hansen, Judge. Affirmed.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant
N.M. Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant D.C.
Gregory P. Priamos, County Counsel, and Teresa K.B. Beecham and Prabhath D. Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
RAPHAEL, J.
This dependency matter involves four children: K.C. (born June 2015), H.C. (born July 2017), B.C. (born July 2018), and J.C. (born May 2020). The juvenile court terminated the parental rights of defendants and appellants D.C. (father) and N.M. (mother), freeing the children for adoption. Mother argues that the juvenile court erred by failing to advise her of her writ rights when it ordered her reunification services terminated, and that it applied the wrong standard in terminating her reunification services as to J.C. She also argues that the juvenile court erred by denying her petitions requesting reinstatement of reunification services as to all of the children based on changed circumstances. Father joins in mother's arguments. We affirm the judgment.
Undesignated statutory references are to the Welfare and Institutions Code.
I. BACKGROUND
The three older children came to the attention of plaintiff and respondent Riverside County Department of Public Social Services (DPSS) in June 2019. Mother had been arrested for public intoxication and possession of methamphetamine. Mother told law enforcement that she "used methamphetamine four days prior and father is the one purchasing the meth." Father reported that mother "is bipolar, has depression, and [had] been off medication for three weeks." In a dependency petition, filed in July 2019, DPSS alleged the children came within section 300, subdivision (b)(1) (failure to protect) based on mother's abuse of controlled substances, mental health issues, and criminal history, as well as the allegation as to both parents that the family home had been found "to have methamphetamine and loose prescription pills within the reach of the children."
At the jurisdictional hearing in September 2019, the juvenile court sustained the section 300 petition as alleged, removed the three older children from the parents' physical custody, and ordered reunification services for both parents. H.C. and B.C. were placed with the foster parents who would become their prospective adoptive parents in September 2019, and K.C. joined them in February 2020.
J.C. was born in May 2020. Three days later, DPSS filed a dependency petition alleging that he, like his siblings, came within section 300, subdivision (b)(1). The petition alleged that both mother and father abuse marijuana; that mother's "mental health issues . . . negatively impact[] her ability to provide adequate care for the child"; that mother's criminal history includes charges including criminal threats of death or great bodily injury, public intoxication, and possession of a controlled substance; that father's criminal history includes domestic violence related charges; and that the family home was "found to contain mold, loose wiring and excessive clutter[, ] which places the child's safety at risk." The petition also alleged J.C. came within section 300, subdivision (j) (abuse of sibling), based on the sustained dependency allegations regarding the three older children.
J.C. was detained from his parents' custody and placed in the same home as his siblings in June 2020. At the jurisdictional hearing in August 2020, the juvenile court sustained J.C.'s section 300 petition as alleged, removed him from the parents' physical custody, and ordered reunification services for both parents.
In a September 2020 report, submitted in advance of the 12-month review hearing for the three older children, DPSS recommended that the juvenile court terminate the parents' reunification services and set a section 366.26 hearing. Mother's and father's participation in services had been unsatisfactory, and their visitation with the children was sporadic. Both parents continued to abuse marijuana, and both appeared to be intoxicated during some visits. At the 12-month review hearing, however, the juvenile court ordered reunification services to be continued.
At the next set of review hearings-the six-month review for J.C., the eighteen-month review for the three older children-DPSS recommended that the juvenile court terminate the parents' reunification services and set a section 366.26 hearing. Mother and father had participated in some services, but only to a limited extent. Their visitation with the children remained sporadic, and their behavior during visitation was sometimes problematic. Both parents were expelled from their substance abuse programs because they refused to stop using marijuana, and their drug test results-when they participated in testing-confirmed their continued marijuana use. On November 2, 2020, father was sentenced to a three-year term of formal probation that included a term requiring he have no contact with mother. Mother and father nevertheless continued to cohabitate until January 28, 2021, when mother told a social worker that they had decided to separate, sell their house, and rent separate residences.
On February 9, 2021, after a contested hearing, the juvenile court terminated both parents' reunification services and set a section 366.26 hearing as to all four children. The parents' visitation was reduced to once per month.
In advance of the section 366.26 hearing-initially set for June 9, 2021, but continued several times, until October 6, 2021-DPSS recommended that mother's and father's parental rights be terminated to free the children for adoption. The children were generally thriving in the home of the prospective adoptive parents, who were appropriately addressing their various special needs. The parents' visitation continued to be inconsistent, and mother, in particular, continued to behave in problematic ways during visitation. The social worker observed that, despite nearly two years of services, the parents' "instability has remained the same and it shows in their communication and visitation with their children."
On September 3, 2021, mother (through counsel) filed section 388 petitions as to each of the children, requesting an additional six months of reunification services. She described the changed circumstances justifying the change of the court order terminating her services and setting the section 366.26 hearing as follows: "Mother is near completion of DV program, engaged in therapy/anger management, consistent with her psychiatric appointments, clean on drug tests, employed via IHSS, referred to the Drug Diversion Program & reportedly has drug intake scheduled for 9/8/21, enrolled in school for criminal justice, and has a valid marijuana recommendation." The petitions stated that the requested change would be in the best interests of the children because "Mother reports being consistent on her visits since termination of services & participates in mutually loving, bonded, and attentive visits." Mother filed additional documents in support of the petitions on September 7, 2021, including a progress report regarding her domestic violence program, a signed statement by mother regarding her visitation with the children, and photographs of her home.
Father also filed section 388 petitions seeking additional reunification services, but those petitions are not at issue in this appeal.
The juvenile court set the section 388 petitions for hearing on the same date as the continued section 366.26 hearing, October 6, 2021. There is some ambiguity in the record as to whether the section 388 hearing was set as an evidentiary hearing, or whether it was scheduled for argument on whether an evidentiary hearing should be set. In the hearing, however, the court clarified it intended to hear argument on "prima facie" issues and then to hold an evidentiary hearing only if necessary.
At the hearing, mother submitted additional documents, including another signed statement by her requesting reunification services, proof of her enrollment in a drug diversion program on September 28, 2021, an attendance card showing she participated in a 12-step meeting on the same date and again on October 5, 2021, and evidence that she was employed during August and September 2021, and she had been enrolled in college for four weeks. Mother had tested negative for marijuana on August 25, 2021. Her counsel, however, did not argue that she had remained sober, only that she is "willing to stop marijuana," and that though she was "at the very beginning of the diversion program" she had "reduced her marijuana greatly."
The juvenile court summarily denied mother's section 388 petitions without a full evidentiary hearing. The court found that "mother is changing but has not changed." The court then proceeded to make findings and orders on the section 366.26 issues, including terminating mother's and father's parental rights and selecting adoption as the children's permanent plan.
II. DISCUSSION
A. Termination of Reunification Services
Mother contends that the juvenile court applied the wrong standard when it terminated reunification services as to J.C., in that it believed termination of reunification services was mandatory instead of discretionary. She asserts that this argument is cognizable in this appeal because the juvenile court erred by misadvising her of her writ rights. DPSS concedes, and we agree, that the juvenile court misadvised mother of her writ rights. We find, however, that mother nevertheless received sufficient notice to preclude her from raising issues related to the reunification period at this late date.
Mother contends that the juvenile court also applied the wrong standard in terminating reunification services as to the three older children. She concedes, however, that the court's conclusion was correct, even if its reasoning was not.
Ordinarily, an order terminating reunification services and setting a section 366.26 hearing is not appealable, and can be challenged only by petitioning for extraordinary writ review. (§ 366.26, subd. (l); see In re Rashad B. (1999) 76 Cal.App.4th 442, 447 ["In adopting section 366.26, subdivision (l), '. . . the Legislature has unequivocally expressed its intent that [setting] orders be challenged by writ before the section 366.26 hearing'"].)
There is a statutory exception to that general rule if (in addition to certain other requirements) a petition for extraordinary writ review was filed in a timely manner, but it was summarily denied or otherwise not decided on the merits. (§ 366.26, subd. (l)(1).) Also, "[c]ourts have held that where the juvenile court fails entirely to advise a parent of his or her right to seek writ review of an order terminating reunification services and setting a section 366.26 hearing, claims of error relating to provision of reunification services are cognizable on appeal from the order terminating parental rights." (In re X.Z. (2013) 221 Cal.App.4th 1243, 1250-1251; see § 366.26, subd. (l)(3)(A) [requiring court, after terminating reunification and setting a section 366.26 hearing, to "advise all parties of the requirement of filing a petition for extraordinary writ review . . . to preserve any right to appeal in these issues"].)
Here, the juvenile court did not entirely fail to advise mother of the need to take immediate action if she wished to preserve any right to appeal issues relating to the order terminating her reunification services and setting a section 366.26 hearing, but it did err in doing so. Under the Rules of Court, since mother was present for the hearing when the juvenile court made the order-she personally appeared telephonically, in addition to her counsel appearing in court-a seven-day deadline for filing a notice of intent to file a writ petition applied. (Cal. Rules of Court, rule 8.450(e)(4)(A).) Instead, the juvenile court orally advised mother that she had 60 days within which to file an "appeal."
The clerk also mailed mother notice of her writ rights, but the deadline stated in that mailing-12 days after the clerk mailed the notification-applies to a party "notified of the order setting the hearing only by mail." (Cal. Rules of Court, rule 8.450(e)(4)(B).) This deadline does not apply to mother, who was not notified of the setting order only by mail.
Although the information the juvenile court provided mother was incorrect, it nevertheless effectively communicated to her the necessity of seeking immediate appellate review. Had mother filed a writ petition or notice of intent after the applicable seven-day deadline, but within the sixty-day deadline erroneously given to her by the juvenile court, or conceivably even within some reasonable period after that, she would have had grounds for asking us to grant relief from default for the late filing. (See In re X.Z., supra, 221 Cal.App.4th at pp. 1251-1252.) If she had filed an appeal, as she was erroneously directed to do by the juvenile court, it would have been well within our discretion to treat it as a petition for extraordinary writ. (A.M. v. Superior Court (2015) 237 Cal.App.4th 506, 515.) Here, however, mother did nothing at all to assert a claim of error regarding the termination of her services until after the section 366.26 hearing, a period of eight months. We are aware of no authority allowing appellate review of reunification phase issues in such circumstances.
The cases that mother relies on in briefing are distinguishable. The juvenile court in In re Rashad B. (1999) 76 Cal.App.4th 442 failed to advise the appellant parent of her writ rights at all; she was not present at the hearing at issue, and the court had failed to attempt to have her provide a permanent mailing address for receiving notice. (Id. at pp. 448-450.) Similarly, in In re Cathina W. (1998) 68 Cal.App.4th 716, the mother did not personally attend the setting hearing, and the mail notice that the court sent was defective in various respects, sent late, and then returned to the court without having been delivered. (Id. at pp. 722-724.) In re Maria S. (2000) 82 Cal.App.4th 1032, 1038 and In re S.S. (2020) 55 Cal.App.5th 355, 370-372 also involve circumstances where the juvenile court entirely failed to advise the appellants of the necessity of acting immediately to seek review by an appellate court. The facts of this case are different; mother had actual notice of the need to take immediate action to preserve any challenge to the court's orders, even if the details she was provided of what action to take, and by when, were inaccurate.
"Any rule allowing a parent to belatedly raise issues relating to the reunification phase should be drawn as narrowly as possible." (In re X.Z., supra, 221 Cal.App.4th at p. 1251.) Here, mother failed to take any action to preserve a challenge to the trial court's orders terminating her services and setting a section 366.26 hearing-either in accordance with the law, or in accordance with the erroneous notice given to her, or in any other reasonable manner. She has identified no rule applicable to such circumstances that might justify our consideration of her belated arguments. And we are not persuaded that there is any appropriate basis for expanding existing authority. Accordingly, we conclude that her claim of error relating to the standard applied by the court in terminating her reunification services as to J.C. is not cognizable.
B. Section 388 Petition
Mother contends the trial court abused its discretion by denying her section 388 petitions on a summary basis. She contends she made a prima facie showing sufficient to entitle her to an evidentiary hearing. We disagree.
"A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstance exist and (2) the proposed change would promote the best interests of the child." (In re A.A. (2012) 203 Cal.App.4th 597, 611.) "The parent bears the burden to show both a legitimate change of circumstances and that undoing the prior order would be in the best interest of the child." (Id. at pp. 611-612.)
Section 388 gives the juvenile court "two choices: (1) summarily deny the petition or (2) hold [an evidentiary] hearing." (In re Lesly G. (2008) 162 Cal.App.4th 904, 912.) To avoid summary denial, "the petitioner must make a 'prima facie' showing of 'facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited.'" (Ibid.) Whether a petitioner makes a prima facie showing entitling her to an evidentiary hearing "'depends on the facts alleged in [the] petition, as well as the facts established as without dispute'" by the court's records. (In re B.C. (2011) 192 Cal.App.4th 129, 141.) "In considering whether the petitioner has made the requisite showing, the juvenile court may consider the entire factual and procedural history of the case." (In re Mickel O. (2011) 197 Cal.App.4th 586, 616.)
We do not disturb a juvenile court's summary denial of a section 388 petition absent an abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) Abuse of discretion is found where the juvenile court exceeded the bounds of reason or the determination was arbitrary, capricious, or patently absurd. (Ibid.) When two or more inferences can reasonably be deduced from the facts, we have no authority to substitute our decision for that of the juvenile court. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)
It is difficult to show changed circumstances when one of the conditions leading to dependency is the parent's long term substance abuse, a problem not easily resolved or ameliorated. (In re Ernesto R. (2014) 230 Cal.App.4th 219, 225.) It is well established that a parent with a long standing substance abuse issue severe enough to cause an inability to adequately care for a child cannot show changed circumstances by showing recent sobriety and participation in a treatment program. (Id. at p. 223.)
Here, mother's participation in a drug diversion program and a 12-step program did not begin until after her section 388 petitions were filed. Moreover, mother could not demonstrate even recent sobriety, only reduced use of marijuana and a new-found willingness to strive for sobriety. Mother's employment for a period of a few months, enrollment in school, and other positive steps alleged in her petitions amount to some signs of recent progress, but hardly begin to address the central reasons for this dependency. It was well within the bounds of reason for the juvenile court to conclude that mother had not established a material change in circumstances, even on a prima facie basis. Moreover, nothing in the record suggests a reasonable likelihood that additional testimony or other evidence would have persuaded the court to grant the section 388 petitions and offer additional reunification services. (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081.) As such, we will not disturb its decision to summarily deny mother's section 388 petitions.
III. DISPOSITION
The judgment is affirmed.
We concur: FIELDS, Acting P. J., MENETREZ, J.