Opinion
D073616
08-16-2018
In re T.W., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. S.W., Defendant and Appellant.
Emery El Habiby, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John Philips, Chief Deputy and Patrice Plattner-Grainger, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. J519452) APPEAL from an order of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed. Emery El Habiby, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John Philips, Chief Deputy and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.
Defendant and appellant S.W. appeals the juvenile court's summary denial of his Welfare and Institutions Code section 388 petition for reinstatement of family reunification services. S.W. contends the juvenile court abused its discretion in denying his petition because he presented a prima facie case of new evidence that promoted minor T.W.'s best interests. We disagree and affirm the order.
Undesignated statutory references are to the Welfare and Institutions Code unless otherwise noted.
I
FACTUAL AND PROCEDURAL BACKGROUND
On October 6, 2016, the child abuse hotline received a referral alleging general neglect to newborn T.W. It was alleged that T.W. and his mother tested positive for opiates and amphetamines at birth. The mother told hospital staff she used heroin the day before T.W.'s birth.
On October 7, 2016, a San Diego County Health and Human Services Agency (the "Agency") social worker visited the hospital. T.W.'s father S.W. told the social worker he had been using heroin daily since October 2015.
On October 17, 2016, the Agency filed a petition on behalf of T.W. alleging he was born testing positive for amphetamines and opiates and suffered symptoms of drug withdrawal. (§ 300, subd. (b).) The petition identified T.W.'s father as S.W.
"A child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [¶] . . . [¶] (b)(1) The child has suffered, or there is substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, . . . or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse." (§ 300, subd. (b)(1).)
At the detention hearing on October 18, 2016, the court found that a prima facie showing had been made that T.W. was a person described by section 300, subdivision (b), and that T.W. should be removed from his parents' care. The court ordered supervised visitation between the parents and T.W. and reunification services be offered to the mother and father.
The Agency's jurisdiction report dated November 8, 2016, informed the court T.W. had been discharged from the hospital on November 1 and was detained with a maternal aunt.
On December 7, 2016, the court sustained the petition. S.W. signed a case plan that detailed activities he must complete within six months in order to have T.W. returned home to his care. The plan objectives included frequent visits to T.W. and successful completion of substance abuse treatment and a parenting education program.
Prior to the six-month review hearing, S.W. did not attend parenting classes. In March and April 2017, S.W. completed a four-day detoxification at one treatment facility and started a 15-day residence at another facility but was terminated for not following rules. S.W. did not receive any other substantial substance abuse treatment leading up to the six-month review hearing. S.W. did not attend any 12-step classes, nor did he comply with drug testing. Of the five requested drug tests within his case plan, he missed three and twice tested positive for amphetamines and opiates.
At the six-month review hearing on July 12, 2017, the court terminated S.W.'s reunification services. It found S.W. had not made substantive progress in the case plan and there was not substantial probability that T.W. would be returned to either parent.
On November 7, 2017, the Agency recommended adoption as the best permanent plan for T.W. T.W. had been in the custody of his maternal aunt since November 2016, and she was committed to adopting him. The Agency also identified 89 local families interested in adopting a child like T.W.
On the morning of the selection and implementation hearing on January 11, 2018, S.W. filed a section 388 petition requesting the court set aside its order terminating his family reunification services. (§ 366.26.) As changed circumstances, S.W. alleged he had participated in a parenting course and a substance abuse treatment program. The court denied S.W.'s petition because he did not make a prima facie showing of changed circumstances or the best interests of T.W. The court then terminated parental rights.
On February 27, 2018, S.W. filed a timely notice of appeal.
The mother has not appealed the trial court's decision terminating her parental rights.
II
DISCUSSION
A. Legal Principles
Under section 388, a parent may petition to change or set aside a prior order "upon grounds of change of circumstance or new evidence." (§ 388, subd. (a)(1); see also Cal. Rules of Court, rule 5.570(a).) The juvenile court shall order a hearing where "it appears that the best interests of the child . . . may be promoted" by the new order. (§ 388, subd. (e).) The burden of proving the requested modification is on the party requesting it. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Thus, the parent must establish by a preponderance of the evidence both a change in circumstances or new evidence and the promotion of the child's best interests. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
All further rule references are to the California Rules of Court. --------
A prima facie case is made if the allegations demonstrate that these two elements are supported by probable cause. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 432.) The juvenile court is not required to hold a hearing on the 388 petition if the allegations, even if found true, would fail to sustain a favorable decision at a hearing. (Rule 5.570(d)(1); In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) While the petition must be liberally construed in favor of its sufficiency (In re Zachary G., supra, 77 Cal.App.4th at p. 806), the allegations must nonetheless describe specifically how the petition will advance the child's best interests. (Anthony W., supra, at p. 250.)
This court reviews a juvenile court's decision to deny a section 388 petition without a hearing for abuse of discretion. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451.) A reviewing court will not disturb a discretionary decision unless the lower court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (In re Stephanie M., supra, 7 Cal.4th at p. 318.) With these legal standards and principles in mind, we turn to the merits of S.W.'s claim that the juvenile court abused its discretion in denying his section 388 petition without a hearing.
B. Analysis
S.W. argues his section 388 petition sufficiently alleged changed circumstances and that reunification services were in T.W.'s best interests. Accordingly, he claims the juvenile court abused its discretion in denying his section 388 petition without a hearing.
As changed circumstances or new evidence, S.W. alleged he completed a 30-day residential recovery program and a parenting class. S.W. did not utilize reunification services to meet any of his case plan objectives by the time of the six-month review hearing. (Renee J. v. Superior Court (2001) 26 Cal.4th 735, 745 [noting the Legislature's provision of six months of reunification services when the child is under age three at the time of removal from the physical custody of the parent].) Despite the termination of reunification services in July 2017, S.W. completed a 28-day drug program in October 2017, and he claims to have learned to identify his triggers, relapse warning signs, and high risk environments.
While we commend S.W. for completing the drug treatment program, he is in the early stages of recovery for a serious drug addiction. (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223 [mother's "recent sobriety reflects 'changing,' not changed, circumstances"]; In re Clifton B. (2000) 81 Cal.App.4th 415, 423-424 [200 days of sobriety not enough to reassure the juvenile court that most recent relapse would be the last].) S.W. has not demonstrated an ability to stay clean outside a drug treatment program while exposed to relapse triggers and the stresses of everyday life. Thus, the juvenile court did not abuse its discretion in finding that S.W. did not make a prima facie showing of changed circumstances.
Even if the positive steps S.W. has recently taken were found to be true at a hearing, they do not establish S.W.'s right to additional reunification services. (In re Zachary G., supra, 77 Cal.App.4th at p. 806.) While commendable, S.W.'s changing circumstances are not enough for the juvenile court to make the necessary findings that services were in T.W.'s best interests. (Ibid.) After termination of reunification services, the focus shifts from reunification to a child's need for permanency and stability. (In re J.C. (2014) 226 Cal.App.4th 503, 527.) Maximizing a child's opportunity to develop into a stable, well-adjusted adult promotes his or her best interest. (Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1124.)
S.W. claims that services should be reinstated given that ending his bond with T.W. would not be in T.W.'s best interest. The record belies this assertion. S.W. only visited T.W. three times between September 2017 and January 2018, and T.W. had no difficulty separating from S.W. at the end of visits.
In this case, the juvenile court did not abuse its discretion in determining it would not be in T.W.'s best interest to reinstate reunification services for the father, who failed to maintain consistent contact with his son and had just begun his recovery process. Since S.W. did not make a prima facie showing that the requested order was in T.W.'s best interests, the juvenile court did not err in summarily denying his section 388 petition.
DISPOSITION
The juvenile court's order is affirmed.
HUFFMAN, J. WE CONCUR: MCCONNELL, P. J. AARON, J.