Opinion
C088507
12-05-2019
In re G.H., a Person Coming Under the Juvenile Court Law. SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. K.H., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. STKJVDP20170000294)
K.H., mother of the minor G.H. (minor), appeals from the juvenile court's order terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395.) She claims the court erred in terminating her reunification services and setting the matter for a section 366.26 hearing, and that her failure to file a petition for extraordinary writ raising this claim should be excused because the juvenile court failed to properly serve her with a writ advisement. She also claims the court erred in denying her section 388 petition without affording her a hearing. We will affirm the juvenile court's orders.
Undesignated statutory references are to the Welfare and Institutions Code. --------
FACTUAL AND PROCEDURAL BACKGROUND
The new-born minor first came to the attention of the San Joaquin County Human Services Agency (Agency) following a report that mother tested positive for marijuana after giving birth to the minor. Mother reportedly used marijuana while pregnant with the minor despite being aware her marijuana use placed the minor at risk of neurological damage during gestation, at birth, and thereafter. Mother refused to follow her doctor's recommendation that she not breastfeed the minor to avoid passing THC to the minor. She also interfered with the nursing staff's ability to take the minor's vital signs. The minor was initially sleeping much of the time, but soon required a feeding tube due to vomiting and failure to gain weight.
Mother reportedly had a history of being involved with partners who perpetuated domestic violence. She also had a history of mental health problems including depression and anxiety. Mother was homeless and had moved frequently, having recently lived in Texas, Tennessee, and Washington state. She informed social worker Christopher Holden that she lived with the maternal grandmother, but her belongings and the minor's belongings were at the Stockton Family Shelter.
On June 16, 2017, the Agency filed a dependency petition pursuant to section 300, subdivisions (b) and (g), on behalf of the minor. The petition alleged mother used marijuana while pregnant, her substance abuse severely impaired her ability to care for the minor, she was discharged by her obstetrician due to her refusal to stop using marijuana and failure to follow through on lab work, her refusal to stop breastfeeding the minor, and her refusal to cooperate with medical staff at the hospital. It was further alleged mother had previously participated in a drug rehabilitation program but had left because she did not feel she was an addict. She had a history of mental health issues and did not have stable, secure housing for herself or the minor. She had recently lived in several different states and was living at a shelter at the time of the minor's birth. The petition alleged the whereabouts of the minor's father were unknown.
Social worker Holden spoke with the maternal grandmother about mother's claim she and the minor were going to live with the maternal grandmother. Holden noted mother had no belongings or baby supplies at the maternal grandmother's home. The maternal grandmother and her significant other, J.B., stated they were willing to have the minor in their home but they did not want the mother living there.
On June 19, 2017, the juvenile court ordered the minor detained and mother assessed and referred to residential substance abuse treatment at Family Ties. Mother completed the Dependency Drug Court (Drug Court) assessment and was referred to Family Ties to begin her substance abuse treatment program on June 23, 2017. The minor was subsequently placed in mother's care at Family Ties along with the minor's three-year-old sibling, T.J. On July 10, 2017, mother was retained on a behavioral contract for aggressiveness with other clients.
At a July 20, 2017 hearing, the juvenile court approved stipulated amendments to the petition recited by counsel for the Agency. Mother and her counsel agreed to submit the matter without trial, conditioned on the amendments as stated by the juvenile court from the bench. The juvenile court sustained the amended petition at the uncontested jurisdictional hearing that day. On July 21, 2017, the Agency formally filed the stipulated amended petition, pursuant to section 300, subdivisions (b) and (g), modifying some of the previous allegations, including that mother did not have stable, secure housing and she had a criminal history for substance abuse.
At the August 24, 2017 disposition hearing, the court ordered that mother retain custody of the minor.
Mother was discharged from Family Ties on September 1, 2017 following a verbal altercation with another client. The court ordered the minor redetained.
On September 5, 2017, the Agency filed a supplemental petition pursuant to section 387 alleging, among other things, that mother was retained on a behavioral contract at Family Ties and warned by the court regarding her poor behavior and noncompliance, mother was terminated from the Family Ties program, and the minor was removed from mother's care as a result. The court ordered the minor detained and further ordered a psychological evaluation for mother.
On September 19, 2017, mother submitted to the juvenile court's jurisdiction and the court sustained the allegations in the supplemental petition.
The Agency's status review report dated February 20, 2018, stated mother was residing with a family member in north Stockton. The minor was placed with a foster family. Mother's psychological evaluation revealed she needed to address her symptoms of trauma, anxiety, and substance abuse in order to effectively attend to her children's needs. After being terminated from Family Ties residential drug treatment program, mother was ordered into residential treatment at New Directions, which did not allow residents to have their children with them. Mother struggled with the fact she could not have her children with her during the six-month program and failed to attend the program at all. She was terminated from Drug Court as a result. She participated in individual counseling, completed the court-ordered psychological evaluation, and continued to learn better communication skills.
The April 10, 2018 status review report stated mother had one positive drug test after being terminated from the Family Ties drug treatment program. While she told her social worker she was willing to go to 12-step meetings in the hopes of getting back into Drug Court, she informed her Drug Court case manager that she simply did not have time to go to meetings. As of the date of the report, mother had not presented any proof of attendance to her case manager. Mother continually told her social worker that she did not believe the use of marijuana should be an issue. She began individual counseling sessions but stopped attending after three sessions and was retained on hold due to failure to attend and lack of communication. Mother was also referred for a medication evaluation but failed to attend that as well.
The report also stated mother and the minor's sibling were living in Wilsonville, Oregon, noting mother was employed there and considered remaining there on a more permanent basis. The report reflected mother's address as being on Fairmont Avenue in Stockton. Notice of the April 10, 2018 review hearing was sent to mother at an address in Wilsonville, Oregon, and to the Fairmont Avenue address in Stockton, California.
Six-month Review Hearing
Mother was not present at the May 2, 2018 uncontested review hearing. Mother's counsel advised the court mother had moved to Oregon and requested that the case be transferred to Oregon. The Agency recommended termination of reunification services due to mother's failure to progress in her case plan, noting mother was terminated from Family Ties, failed to follow through with individual counseling, ignored the recommendation she refrain from smoking marijuana so as not to interfere with her ability to follow through with services, did not visit the minor for over two months, did not appear for court hearings, and voluntarily moved to Oregon and abandoned the minor in California.
The court terminated mother's services and suspended her visits with the minor. The court set the matter for a section 366.26 hearing and directed the clerk to send the writ advisement notice to mother's last known address.
On May 3, 2018, the court clerk mailed the writ advisement packet to mother at the Fairmont Avenue address in Stockton.
At an uncontested visitation hearing on June 29, 2018, the court was informed mother tested positive for cannabinoids. The court found mother's address was the Fairmont Avenue address in Stockton and ordered her to be present for the section 366.26 hearing.
After mother moved back to Stockton, California, she tested negative. On August 14, 2018, the court ordered that she be allowed weekly supervised visits with the minor.
The August 29, 2018 section 366.26 report stated the minor had no relationship with mother due, in large part, to the fact mother stopped visiting the minor in February 2018 after moving to Oregon and did not visit the minor for approximately six months. The Agency recommended that the court terminate parental rights and place the minor for adoption.
Mother's Section 388 Petition
On October 9, 2018, mother filed a petition pursuant to section 388 to change the court's order terminating her reunification services. Mother argued she was mistakenly told she could have her case transferred to Oregon, so she accepted a job and moved to Oregon without realizing she would be away from the minor for three months while she worked. Once mother realized the error, she returned to California to work on her case plan. She became drug-free, was enrolled in parenting class, worked full-time, attended individual counseling, and checked in with behavioral health services. She visited the minor consistently and she and the minor's sibling continued to bond with the minor. Mother requested that the court return the minor to her care in order to maintain the bond between mother, the minor, and the minor's sibling. She argued the requested change would be in the minor's best interest because the minor was bonded to mother and the minor's sibling, mother maintained her bond with the minor by visiting, mother cooperated by giving her medical history to the social worker, mother's extended family supported return of the minor to mother, and the minor needed to remain with her family for cultural and medical reasons. Mother further argued the minor's sibling would miss his sister, and mother's "grief and loss issues" would not be resolved, if the minor were not returned to her.
The Agency opposed mother's section 388 petition, arguing mother provided no evidence to support her claims that she was drug free, was attending Alcoholics Anonymous (AA) or Narcotics Anonymous (NA) meetings, or was in treatment for her mental health issues, or that she made significant progress in addressing her past trauma. The Agency further argued mother's housing and personal life remained unstable, as evidenced by the fact mother was living in a hotel but refused to allow the social worker to inspect her living space, and mother was apparently in a romantic relationship with an individual who refused to be assessed by the social worker.
The juvenile court denied mother's section 388 petition, finding mother's circumstances were in a state of change but mother had not yet made the necessary long-term changes needed. Section 366.26 Hearing
At the December 10, 2018 section 366.26 hearing, mother testified she was living with a family member and visited the minor twice a week. She further testified she and the minor were bonded, as were the minor and the minor's sibling. Mother stated her relationship with the minor remained the same as it was when she had the minor with her at Family Ties residential treatment program. She stated that when she moved out of state, she realized she was going to have to return to California to visit the minor, but that "it was going to be some time." She claimed she requested that the dependency case be transferred out of state and the social worker told mother she would make the transfer request. Mother testified she continued to communicate with the Agency and her own attorney when she was out of state. She believed she was stable enough to care for the minor, she was adequately bonded with the minor, and she was able to financially provide for the minor.
The court found mother was not stable, had inconsistent and limited visitation with the minor, and did not follow through with or complete drug treatment despite multiple opportunities to do so. The court further found none of the exceptions to adoption applied, terminated parental rights, and identified adoption as the appropriate permanent plan.
Mother filed a timely notice of appeal.
DISCUSSION
I
Termination of Reunification Services
Mother contends there was insufficient evidence to support the juvenile court's order terminating her reunification services at the six-month review hearing. Mother acknowledges her claim was required to have been raised in a petition for writ of review after the section 366.21, subdivision (e), hearing but, in a supplemental brief, mother argues she should be excused from the writ requirement because her failure to file a writ petition was the result of the juvenile court's failure to properly serve her with a writ advisement at her current address at the time of the six-month review hearing or to properly ascertain her permanent mailing address at any time.
The Agency argues mother was properly served with the writ advisement at her last known address and, in any event, there was substantial evidence to support the juvenile court's order terminating her reunification services.
For purposes of this appeal, we shall assume there was an error in the mailing of a writ advisement to mother and reach the merits. Addressing mother's claim on the merits, we conclude there was substantial evidence to support the court's order terminating mother's reunification services.
" '[T]he focus of reunification services is to remedy those problems which led to the removal of the children.' [Citation.] A reunification plan must be tailored to the particular individual and family, addressing the unique facts of that family. [Citation.] A social services agency is required to make a good faith effort to address the parent's problems through services, to maintain reasonable contact with the parent during the course of the plan, and to make reasonable efforts to assist the parent in areas where compliance proves difficult. [Citation.] However, in most cases more services might have been provided and the services provided are often imperfect. [Citation.] 'The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances.' [Citation.]" (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598-599.)
Here, the minor was initially removed due to mother's substance abuse, mental health problems, history of being involved with partners who perpetuated domestic violence, lack of stable housing, and failure and refusal to follow medical advice regarding the health and safety of the minor. Mother was ordered to participate in a residential substance abuse treatment program in June 2017. She entered Family Ties, where she was able to have the minor and the minor's sibling with her. However, within a month she was retained on a behavior contract for aggressiveness toward other clients, and was discharged two months later due to her problematic behaviors and defiant attitude, resulting in detention of the minor. When the court ordered mother to go to New Directions, a drug treatment facility where she was not allowed to have the minor with her, mother did not enroll and was terminated from Drug Court. Further, she elected not to attend 12-step meetings because she did not have "the time to go to meetings," and she maintained her use of marijuana should not be an issue. Mother requested a hearing to contest the recommendation of continued residential substance abuse treatment and then did not show up for the hearing. She had been referred to individual counseling in August 2017 and, after a delayed start, was on hold due to her no-shows and lack of communication. Finally, mother was referred for a medication evaluation on the recommendation of her therapist but did not follow through. Mother eventually moved to Oregon with the minor's sibling and ceased all participation in services and all visitation with the minor.
Mother did not attend the May 2, 2018 review hearing. The court was informed mother had moved to Oregon with the minor's sibling, she had not visited the minor in over two months, she did not follow through with her case plan, she ignored advice to abstain from using marijuana, and tested positive once after being terminated from Family Ties residential drug treatment program. Based on the evidence before it, the court terminated mother's reunification services.
Mother claims the Agency failed to refer her to a residential substance abuse treatment program that would allow her to keep custody of her children. She argues that, when the court ordered detention on September 6, 2017, she was moving between various programs and the Agency did not assist her in locating housing, referring her instead to New Directions drug treatment program where she was not allowed to keep or have overnight visits with her children. Mother cites no authority, and we are aware of none, that required the Agency to refer mother to a residential substance abuse treatment program that would allow mother to have her children with her. Indeed, mother was initially referred to Family Ties where her children could accompany her. However, she was terminated from that program due to her own aggressiveness toward, and physical altercation with, another client. Mother attempts to explain her behavior at Family Ties as a possible "lack of stabilization on her medication." However, as the juvenile court pointed out, there were continuing discussions over several months prior to mother's termination from Family Ties regarding mother's behaviors with staff and peers at the program, and mother had been counseled by two judges "in an attempt to get her to resolve that." As the court stated, the minor was placed with mother at Family Ties "on the condition that [mother] stay in the program" but "she's got herself terminated."
Mother further argues she was required to "voluntarily give up custody" of the minor's sibling and potentially permanently lose custody of both the minor's sibling and the minor "in order to enter residential treatment," thus rendering services unreasonable pursuant to In re Misako R. (1991) 2 Cal.App.4th 538 at page 547. Mother provides no citation to the record to support her claim she was required to give up custody of the minor's sibling. In any event, Misako R. makes no mention of referral to substance abuse treatment programs that either allow or do not allow children to accompany their parents and does not stand for the proposition mother asserts.
Next, mother argues her psychological evaluation demonstrated she was motivated to complete reunification services and was not suffering from marijuana dependence. The record demonstrates that, while mother may have been motivated at times, she did not abide by program rules and did not follow through with services. And while she may not have been suffering from marijuana dependence, she nonetheless refused to heed recommendations that she abstain from using marijuana and maintained that marijuana use should not be an issue.
Finally, mother argues the Agency did not provide reasonable services because i neither discussed nor considered transferring her services to Oregon. Relying on In re T.W. (2017) 9 Cal.App.5th 339, mother claims the Agency could have arranged to provide services, transportation, and video visitation to mother while she was in Oregon. We are not persuaded. In T.W., while the father was located out of state, the social service agency prepared a case plan that did not identify any service providers and instead required father to locate services. (Id. at p. 343.) Moreover, it took half of the review period to develop the father's case plan and the belated case plan did not address all the problems leading to removal of minors. (Id. at p. 346.) Here, in contrast, mother lived a transient lifestyle and moved from place to place throughout the proceedings, often not advising the Agency as to her whereabouts. She was provided with services early on and throughout the proceedings. She voluntarily left California and moved to Oregon in February 2018 without first obtaining prior permission from the court. In doing so, mother chose not to participate in the services provided to her in California, resulting in the termination of those services due to her failure and refusal to abide by program rules or participate at all. It was not until the May 2, 2018 review hearing mother's counsel advised the court of mother's move to Oregon and for the first time requested that the case be transferred to Oregon. At that point, mother had already demonstrated her unwillingness to participate in services in California. Under the circumstances and given mother's transient lifestyle and frequent change in location, the court concluded it was not in the minor's best interest to transfer the case to Oregon.
On this record, we conclude there is substantial evidence to support the court's termination of mother's reunification services.
II
Denial of the Section 388 Petition
Mother contends the juvenile court abused its discretion in denying her section 388 petition without a hearing. She claims there was sufficient evidence of changed circumstances and the requested change would be in the minor's best interests. The contention lacks merit.
"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 circumstances exist and (2) the proposed change would promote the best interests of the child. [Citation.] A parent need only make a prima facie showing of these elements to trigger the right to a hearing on a section 388 petition and the petition should be liberally construed in favor of granting a hearing to consider the parent's request. [Citation.]" (In re Zachary G. (1999) 77 Cal.App.4th 799, 806 (Zachary G.); see In re Daijah T. (2000) 83 Cal.App.4th 666, 672.)
The change of circumstances or new evidence "must be of such significant nature that it requires a setting aside or modification of the challenged prior order." (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485; see In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451.) When reunification services have been terminated and a section 366.26 hearing has already been set, a court assessing the child's best interests must recognize the focus of the case has shifted from the parents' interest in the care, custody, and companionship of the child to the needs of the child for permanency and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) The child's best interests "are not to further delay permanency and stability in favor of rewarding" the parent for his or her "hard work and efforts to reunify." (In re J.C. (2014) 26 Cal.App.4th 503, 527.) "A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child's best interests." (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The petitioner has the burden of proof by a preponderance of the evidence. (Cal. Rules of Court, rule 5.570(h)(1)(D).) In assessing the petition, the juvenile court may consider the entire history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189.)
Section 388 gives the court discretion whether to provide a hearing on a petition alleging changed circumstances. (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413.) "[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." (In re Zachary G., supra, 77 Cal.App.4th at p. 806; see Cal. Rules of Court, rule 5.570(d)(1).)
We review the denial of a section 388 petition for abuse of discretion. (In re S.R. (2009) 173 Cal.App.4th 864, 870; In re J.T. (2014) 228 Cal.App.4th 953, 965.)
Mother's section 388 petition requested that the minor be returned to her care. She argued changed circumstances based on the fact she moved to Oregon while under the mistaken impression her case would be transferred to that state. But she realized her error and moved back to California, where she became drug-free, was enrolled in parenting class, worked full-time, attended individual counseling, checked in with behavioral health services, and consistently visited and bonded with the minor and the minor's sibling. She argued the requested change would be in the minor's best interest because the minor was bonded to mother and the minor's sibling, mother maintained her bond with the minor by visiting, mother cooperated by giving her medical history to the social worker, mother's extended family supported return of the minor to mother, the minor needed to remain with her family for cultural and medical reasons, return of the minor would result in detriment to the minor's sibling, who would miss his sister, and mother's "grief and loss issues" would not be resolved if the minor were not returned to her.
The Agency argues mother showed, at best, changing circumstances not changed circumstances, as mother's participation in her case plan was minimal at best, she did nothing further to progress in reunification during the six months she lived out-of-state, she maintained no contact with the minor while out-of-state, and she only began visiting the minor once weekly in August 2018. The Agency further argues the proposed change was not in the minor's best interests because the minor was in a stable placement where her needs continued to be met by her caretakers, with whom the minor had formed a bond. We agree with the Agency on both counts.
Mother provided no evidence, and there is none in the record, to support mother's claim she was drug free, was attending AA and NA, was in treatment for her mental health issues, or had made significant progress in addressing her past trauma. Instead, the record confirmed mother's participation in services was minimal while she was in California and nonexistent while she was in Oregon, she only began visiting the minor when she returned to California after voluntarily leaving the state and having no contact for a number of months, and she maintained marijuana was not an issue impacting her ability to follow through with her services and appropriately parent her children.
Mother argues her services were terminated "solely due to her move to Oregon." Not so. The record makes plain the social worker reported mother did not follow through with counseling, her psychological evaluation indicated her smoking marijuana interfered with her ability to follow through with services, she refused to cease smoking marijuana despite a recommendation to do so, she had not visited the minor in over two months prior to the hearing, she left the state voluntarily and abandoned the minor, and the case was continued several times to "get mother back to court in this state to no avail."
Mother also claims, as she did in her section 388 petition, she returned to California and resumed services by "participating in the CDCC program and testing drug free prior to the hearing, enrolling in parenting classes and working full time while attending counseling." However, as was the case with her section 388 petition, mother provided no evidence to support any of those claims. Even if she had, those claims show, at best, that mother's circumstances were changing, not changed.
We similarly reject mother's claim her section 388 request was in the minor's best interests because mother was bonded to the minor, the minor was bonded to the minor's sibling, mother was clean and sober when her petition was filed, the minor found comfort in mother's presence, and mother was an adequate caretaker. As previously discussed, while mother may have undergone some measure of change since returning from Oregon, there were still issues that caused concern regarding her ability to safely and properly care for the minor.
Finally, mother argues the court violated her right to due process by denying her section 388 petition without a hearing. The juvenile court summarily denied mother's section 388 petition, finding mother's circumstances were in a state of change but mother had not yet made the necessary long-term changes. As previously discussed, mother's petition did not show changed circumstances such that the minor's best interests would be promoted by mother's request for return of the minor to her care and custody. Thus, mother did not make the showing necessary to obtain an evidentiary hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 310.)
We conclude the juvenile court did not abuse its discretion in denying mother's section 388 petition.
DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
HOCH, J. We concur: /s/_________
RAYE, P. J. /s/_________
BUTZ, J.