Opinion
2d Juv. No. B234189 Super. Ct. No. J-1286191
01-17-2012
In re Jose A.R., Jr., a Person Coming Under the Juvenile Court Law. CHILD WELFARE SERVICES, Plaintiff and Respondent, v. L.E., Defendant and Appellant.
Lee Guliver, under appointment by the Court of Appeal, for Appellant. Dennis A. Marshall, County Counsel, County of Santa Barbara and Saraha A. McElhinney, Deputy Counsel. for Petitioner and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.
(Santa Barbara County)
L.E., mother of 11-year-old Jose R., appeals from a May 23, 2011 order denying her petition to reinstate reunification services and increase visitation. (Welf. & Inst. Code, § 388.) We affirm. Substantial evidence supports the trial court's finding that there was no change of circumstances or that the proposed modification is in the child's best interests.
All statutory references are to the Welfare and Institutions Code.
Facts and Procedural History
In June 2009, Santa Barbara County Child Welfare Services (CWS), received a referral that Jose R. and his siblings had missed school and exhibited behavioral problems stemming from mother's neglect, lack of supervision, and alcohol abuse. Appellant was provided voluntary family services but refused to cooperate.
On August 4, 2009, CWS filed a dependency petition for failure to protect and provide for the children. (§ 300, subds. (b) & (g).) The petition stated that the whereabouts of Jose R.'s father was unknown, that appellant was taking Vicodin without a prescription and abusing alcohol, and that appellant refused to provide a drug/alcohol test. Appellant had an extensive criminal history that included vandalism, battery, disturbing the peace, giving false identification to a peace officer, inflicting corporal injury on a spouse, making terrorist threats, driving under the influence of alcohol/drugs, driving without a license, battery on a spouse, child cruelty, fighting in a public place, driving with a suspended license, and hit and run with property damage.
The trial court sustained the petition on September 28, 2009, placed the children in appellant's care, and ordered family maintenance services. Appellant was ordered to enroll in a parenting class, participate in individual therapy, take psychotropic medication as prescribed by her psychiatrist, submit to alcohol/drug testing and substance abuse treatment, cooperate with CWS, control her negative behaviors, and make sure the children attended school.
Section 387 Petition- Protective Custody
On February 7, 2010, CWS filed a supplemental petition to remove Jose R. from appellant's care. (§ 387.) The petition stated that he had missed significant amounts of school and that his older sisters (L.S. age 17; S.S. age 15) had run away. Appellant had no control of her daughters, was addicted to Vicodin, refused to participate in services, and tried to hide the children from CWS.
The trial court sustained the petition and removed Jose R. from appellant's care. Appellant was ordered to participate in a drug treatment program, submit to random alcohol/drug testing, complete a psychiatric assessment, attend parenting classes, and enroll in individual counseling and family therapy. The trial court ordered weekly supervised visitation and random drug/alcohol testing twice a week. The order provided that if appellant "produces a positive [drug] test, or if she fails to test, she must produce three negative tests before visitation will resume."
Visitation was sporadic from May through June, 2010. Appellant claimed that she could not visit because she had a staph infection but failed to provide adequate medical documentation.
In June 2010, Jose R.'s sister (S.S.) committed suicide. Appellant felt depressed and suicidal, and stopped visiting the children.
Six Month Review Hearing
At the June 25, 2010 six month review hearing, CWS reported that Jose R. had an excessive number of school absences and that appellant, unbeknownst to CWS, enrolled in a substance abuse treatment program (Aegis Methadone Clinic) for Vicodin, morphine and Percocet dependency. The report stated that appellant "is a hostile client who does not take her involvement with CWS seriously. She has had over four months to participate in her court ordered services but so far, she has not participated in any of them."
The trial court ordered appellant to follow the case plan and ordered additional services.
In August 2010, a psychologist reported that appellant was suffering from anxiety disorder and opiate dependency. The psychological evaluation recommended individual therapy, group therapy, and psycho-education to address appellant's "pattern of partner selection involving violent, criminally-oriented drug users, low self-esteem, grief, anxiety, depression and [l]ife skill building for day-to-day problems. . . ." The psychologist opined that appellant's prognosis for completing the case plan and resolving her substance abuse "is at best guarded. She is at a high risk of relapse and is facing significant financial, emotional, and occupational obstacles."
12 Month Review Hearing
At the 12 month review hearing, CWS reported that appellant was arrested for burglary on September 1, 2010, had an outstanding warrant, and dropped out of contact from September 2010 to February 1, 2011. Appellant could not document her attendance at parenting classes, was non-compliant with her psychological treatment, had tested positive for drugs and stopped attending an outpatient drug treatment program, and missed group sessions and drug tests.
On March 14, 2011, the trial court terminated reunification services, ordered monthly supervised visits, and set the matter for a section 366.26 permanent placement hearing. Appellant filed a Notice of Intent to File Writ Petition which was dismissed as abandoned on May 11, 2011. (B231977.)
Section 388 Petition
On April 29, 2011, appellant filed a section 388 petition to reinstate reunification services and increase visitation. The petition alleged that appellant was enrolled in a random drug testing program, had two jobs, and seeing a therapist. CWS opposed the petition on the ground that there was no change of circumstances. The trial court conducted an evidentiary hearing and denied the petition.
The petition stated that appellant was "participating regularly in individual therapy" but the therapist reported that appellant had missed her last two appointments. With respect to random drug testing, CWS contacted the drug testing service and determined that appellant tested seven times between February 17, 2011 and March 11, 2011. Appellant tested positive for opiates when she visited Jose R. on March 11, 2011, missed a test on March 31, 2011, and did not submit to drug testing after reunification services were terminated. Appellant also claimed that she had obtained new employment but produced pay stubs which were dated before services were terminated.
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Change of Circumstances
We review for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) Appellant has the burden of showing a change of circumstance or new evidence demonstrating that the proposed modification is in Jose R.'s best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415.) "It is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child. [Citation.]" (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.)
Appellant acknowledges that her substance abuse affects her ability to parent Jose R. and claims that she is now committed to seek treatment. That is not a change of circumstances or good cause to reinstate services. Appellant was provided a year of services but refused to cooperate.
Appellant argues that, except for one drug test, she has been drug free since December 2010. Appellant, however, admitted taking Tramadol and tested positive for opiates on March 11, 2011, the same day she visited Jose R. Appellant's lack of commitment to services was the reason for Jose R.'s detention, foster home placement, and the termination of services.
Appellant's desire to enroll in a drug treatment program at this late a date, though commendable, is not a change in circumstances warranting the reinstatement of services. (See In re Clifton B. (2000) 81 Cal.App.4th 415, 423 [parent's brief period of sobriety while commendable, was nothing new].) "It is the nature of addiction that one must be 'clean' for a much longer period than 120 days to show real reform." (In re Kimberly F., supra, 56 Cal.App.4th at p. 531, fn. 9.) After reunification services are terminated, the focus shifts from appellant's interest as a parent to Jose R.'s need for permanency and stability, and it is presumed that continued foster care is in the child's best interests. (See In re Aaliyah (2006) 136 Cal.App.4th 437, 448.) Here the trial court "properly looked to [Jose R.'s] need for permanency and stability in denying mother's petition for modification of its prior orders." (Ibid.)
Increased Visitation
Appellant's assertion that the trial court abused its discretion in not increasing visitation is without merit. "A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.]" (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)
Jose R.'s therapist reported that Jose R. "needs to be in a stable, permanent home as soon as possible while he still has the ability to form a bond." Jose R. felt "punished without having done anything wrong." The therapist opined "that every month that passes before [Jose R.] is securely placed in a permanent home increases the chances of a bad outcome."
Evidence was received that weekly visits would be difficult to facilitate because Jose R. was moving to an out of county permanent placement. The case worker reported that he "needs to be with a permanent family where he can feel a sense of belonging, form a bond, and move forward to his future."
Appellant argues that Jose R.'s emotional needs and bond with appellant supports increased visitation. Jose R., however, was traumatized by appellant's refusal to follow the case plan. Appellant sabotaged visitation by creating an adversarial relationship with CSW and not maintaining contact. The case worker reported that appellant visited Jose R. only once in six months and tested positive for opiates the day of the visit. "The last visit was traumatic to the child as it got his hopes up. . . . [W]hen [appellant] failed to come to court, where the child expected to see her, he was emotionally crushed."
Appellant asserts that the case worker made an "inexplicably cruel decision" not to allow Jose R. to talk to appellant about his sister's (S.S.) death. Appellant told a case worker that S.S. committed suicide because she missed Jose R. and "I hope you're fucking happy!" CWS was concerned that appellant's negative statements would cause Jose R. to suffer additional guilt and consulted his therapist. Jose R. was informed of his sister's death in therapy and "wept in the arms of his foster parents and did not say a word, nor . . . ask for his mother."
The trial court reasonably concluded that increased visitation was not in Jose R.'s best interests. Reinstating services and weekly visitation would deprive Jose R. of a permanent, stable home in exchange for an uncertain future. (In re C.J.W. (2007) 157 Cal.App.4th at 1075, 1081.) "The reality is that childhood is brief; it does not wait until a parent rehabilitates himself or herself. The nurturing required must be given by someone, at the time the child needs it, not when the parent is ready to give it." (In re Debra M. (1987) 189 Cal.App.3d 1032, 1038.)
The judgment (order denying section 388 petition) is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J. We concur:
GILBERT, P.J.
PERREN, J.
Arthur J. Garcia, Judge
Superior Court County of Santa Barbara
Lee Guliver, under appointment by the Court of Appeal, for Appellant.
Dennis A. Marshall, County Counsel, County of Santa Barbara and Saraha A. McElhinney, Deputy Counsel. for Petitioner and Respondent.