Opinion
A153512
03-20-2018
V.H., Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, et al., Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J17-00345)
Petitioner V.H., the mother of M.U. (Mother), seeks an extraordinary writ ordering the juvenile court to vacate its order setting a hearing under Welfare and Institutions Code section 366.26. She maintains the court erred in denying her section 388 petition, which she claims affected the juvenile court's decision to set the section 366.26 hearing. We deny the petition.
All further statutory references are to the Welfare and Institutions Code.
BACKGROUND
After both M.U. and Mother tested positive for methamphetamine at M.U.'s birth, the Contra Costa County Children and Family Services Bureau (Bureau) removed M.U. from Mother's custody. Mother also tested positive for marijuana. She had obtained no prenatal care, but had visited the emergency room during her pregnancy and tested positive for methamphetamine there. M.U. was placed in the neonatal intensive care unit because Mother was unable to care for him in the hospital.
Mother told the social worker she and M.U.'s father (Father), a long-time heroin user, had been living on the streets for the past five years. Mother was homeless. She had five prior criminal convictions, including grand theft in 2012 and petty theft in 2015.
We set forth only limited facts regarding Father because he is not a party to this petition.
Mother had failed to reunify with another child, a daughter, who was a non-minor dependent. Mother reported she had not talked to her daughter "in a while."
At the time of the detention hearing, Father was in custody after being arrested for assaulting Mother. The court indicated in its detention order that Father assaulted Mother when they left the Bureau office, and that Mother had a "huge black and swollen eye." M.U. was detained, and the court ordered supervised visitation for each parent.
At the contested jurisdiction hearing, the court sustained the allegations that Mother had a substance abuse problem that impaired her ability to care for M.U., and that she had failed to reunify with another child.
In its dispositional report, the Bureau noted M.U. was placed with a foster family. Mother had initially resisted drug treatment, but then entered a program in May. Since 2008, Mother had been unable to maintain her sobriety for more than three months at a time. Mother had been diagnosed with bi-polar disorder, depression, post-traumatic stress disorder, and borderline personality disorder. Her daughter reported Mother sent her vulgar and threatening texts that month. One such text read: " 'Talk all that shit fuck it consider me dead. . . [.] Fuck you [] you lil bitch . . . I smack the shit out your ass.' " When a social worker confronted Mother about the texts, she stated " 'You guys don't even consider her my child anymore so . . . that should have nothing to do with my case with my son.' "
Following the dispositional hearing in July 2017, the court ordered reunification services for Father. It denied reunification services to Mother under section 361.5, subdivisions (b)(10) and (b)(13). The court also reduced Mother's supervised visitation to monthly rather than weekly.
Section 361.5, subdivision (b) provides in part: "Reunification services need not be provided to a parent . . . when the court finds, by clear and convincing evidence . . . [¶] . . . [¶] [t]hat the court ordered termination of reunification services for any siblings or half siblings of the child because the parent . . . failed to reunify with the sibling or half sibling . . .[and], this parent . . . has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling. . . . [¶] . . . [¶] That the parent or guardian of the child has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition. . . ." (§ 361.5, subds. (b)(10), (13).)
Three months later, Mother filed a section 388 petition seeking increased visitation and ordering reunification services, asserting she was receiving substance abuse treatment. The court summarily denied the petition.
Mother filed another section 388 petition in January 2018, again seeking increased visitation and reunification services. She indicated she had completed an outpatient drug treatment program and was seeing a psychiatrist. The court again summarily denied the petition, checking the boxes on the pre-printed form indicating the request did not state new evidence or a change of circumstances, and the proposed change did not promote the best interests of the child.
A contested review hearing was held on January 24, 2018. The Bureau's status review report indicated Father and his fiancé had obtained a temporary restraining order in August 2017 against Mother after she "verbally threatened" Father and "struck him from behind and punched him in the ear." Father reported the incident to police. The Bureau also reported "[i]n a separate incident . . . [Mother] was verbalizing a plan to obtain a gun and shoot the father and his fiancé in the head." Mother had, however, visited M.U. five times between August 2017 and December 2017, and according to the Bureau, "the visits have gone well. The mother's attention is focused on the baby and she attends to the baby's needs."
The court terminated reunification services to Father. The court asked Mother's counsel if she had any additional information she wished to offer in support of the section 388 petition. Counsel responded Mother had "signed up to take a parenting class" which was to start in February. Mother was also "on a waiting list for therapy through the county mental health." The court again denied Mother's section 388 petition, stating Mother had not made a sufficient showing "even to warrant a further hearing on the matter . . . [¶] . . . [¶] . . . [e]specially in light of [M]other's significant longstanding history of substance abuse and engagement in domestic violence and dysfunction." The court set the matter for a section 366.26 hearing.
Father indicated he "needed more help than he expected," and in December reported he was homeless and had relapsed. --------
DISCUSSION
Mother maintains the court erred in denying her second section 388 petition without holding a full evidentiary hearing. The court denied the petition on the ground the petition did not show new evidence or a change in circumstances, and the proposed change would not promote the best interests of the child. Mother claims the denial of that petition "affected the court's decision on setting a 366.26 hearing date."
"Section 388 permits '[a]ny parent or other person having an interest in a child who is a dependent child of the juvenile court' to petition 'for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court' on grounds of 'change of circumstance or new evidence.' (§ 388, subd. (a).) '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. . . .' [Citation.] Section 388 thus gives the court two choices: (1) summarily deny the petition or (2) hold a hearing. [Citations.] In order 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.' " (In re Lesly G. (2008) 162 Cal.App.4th 904, 912.) The prima facie showing must be made as to both required elements: change of circumstance and promotion of the best interests of the child. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
"A prima facie case is . . . not made, however, if the allegations would fail to sustain a favorable decision even if they were found to be true at a hearing. [Citations.] While the petition must be liberally construed in favor of its sufficiency [citations], the allegations must nonetheless describe specifically how the petition will advance the child's best interests." (In re G.B. (2014) 227 Cal.App.4th 1147, 1157.)
"We review a summary denial of a hearing on a modification petition for abuse of discretion. [Citation.] Under this standard of review, we will not disturb the decision of the trial court unless the trial court exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination." (In re A.S. (2009) 180 Cal.App.4th 351, 358.)
Mother's second section 388 petition, filed in January 2018, alleged the following changes in circumstances: she "sought residential treatment through [C]ontra Costa behavioral and was denied. Mother was referred to [outpatient] treatment and has completed 'Chance for Freedom.' Mother has also been fully engaged in individual counseling." Her petition attached as exhibits a July 2017 letter from Contra Costa Behavioral Health denying her request for residential treatment and a letter from the "Chance for Freedom" program indicating she had completed that program on January 4, 2018, which included completing clean drug tests. Also attached was a November 9, 2017 letter from Mother's psychiatrist, which stated "I have been meeting with [Mother] regularly as her psychiatrist since July of this year. She has been keeping her appointments and [is] adherent to her treatment plan. She is making the necessary improvement[s] to better her life."
What Mother has described as changed circumstances are actually the ongoing changes she has been attempting to make since July 2017. Mother had then been attending an outpatient drug treatment program and engaged in therapy. In January 2018, Mother completed the outpatient program—but that is not a changed circumstance under section 388. Her attorney's assertions that Mother was "signed up to take a parenting class" and "on a waiting list for therapy through the county mental health" at best demonstrate changing, rather than changed, circumstances. (See In re Casey D. (1999) 70 Cal.App.4th 38, 47 ["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. [Citation] ' "[C]hildhood does not wait for the parent to become adequate." ' "].)
But, even if Mother had made a prima facie showing of changed circumstances, her section 388 petition did not demonstrate that altering the prior order was in her son's best interests. Mother's only assertion in the petition in that regard was that "Family Reunification is the goal for the Dependency System. Mother has demonstrated her ability to participate in some of the services necessary for that purpose, but needs the assistance of CFS to complete that goal." However, "simple completion of . . . classes taken . . . does not, in and of itself, show prima facie that either the requested modification or a hearing would be in the minor's best interests." (In re Angel B. (2002) 97 Cal.App.4th 454, 463.)
In her writ petition, Mother asserts the fact her visits with M.U. went well, and that she reportedly "attend[ed] to the baby's needs" "clearly showed [that the proposed change] was in the best interests of the child." The fact that five monthly supervised visits went well, while laudable, is not enough to demonstrate the proposed change in the prior order was in M.U.'s best interests.
In sum, Mother has not shown that the juvenile court abused its discretion by summarily denying Mother's section 388 petition. (See In re G.B., supra, 227 Cal.App.4th at p. 1157 ["A prima facie case is made if the allegations demonstrate that these two elements are supported by probable cause. [Citations.] It is not made, however, if the allegations would fail to sustain a favorable decision even if they were found to be true at a hearing. [Citations.] While the petition must be liberally construed in favor of its sufficiency [citations], the allegations must nonetheless describe specifically how the petition will advance the child's best interests."].)
DISPOSITION
The petition for an extraordinary writ is denied on the merits. (See Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888, 894; Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1024.) The decision is final in this court immediately. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Margulies, J.