Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. Nos. J39481, J39482.
RUVOLO, P. J.
Introduction
Petitioner Desiree C. (mother), the mother of A.S. and A.C. (collectively minors), seeks extraordinary writ review (Cal. Rules of Court, rule 8.452) of a juvenile court order terminating family reunification services and setting the matter for a Welfare and Institutions Code section 366.26 hearing on August 2, 2011, to consider termination of parental rights. Mother contends that the trial court erred in granting a petition under section 388, terminating reunification services prior to the 24-month review hearing, and setting a section 366.26 hearing. We disagree, and deny the requested relief.
All rule references are to the California Rules of Court. All statutory references are to the Welfare and Institutions Code. The minors have unusual first names, so in order to protect their privacy, we refer to them by initials only.
FACTS AND PROCEDURAL BACKGROUND
The minors involved in this dependency proceeding are A.S., born in early 2004, and A.C., born in the fall of 2008. Minors have different fathers, neither of whom is a party to this writ proceeding.
On June 3, 2009, mother was arrested for child endangerment after leaving A.C., then an infant, with a four-year-old child (not A.S.), unattended in a car while she went to a supermarket. Mother’s grandmother (grandmother) told a social worker from the Solano County Department of Child Welfare Services (the Department) that she had told mother in the past not to leave children unattended in the car because it was unsafe and illegal. Mother was apparently released, but was arrested again on the evening of June 4, 2009. On June 5, 2009, grandmother called the Department and told a social worker that she was overwhelmed, and tired of having mother leave minors with her. In response, the Department took minors into protective custody, and placed them in a foster home, where they have remained for the duration of the dependency proceedings.
On June 9, 2009, the Department filed a petition alleging that minors came within the provisions of section 300, subdivisions (b) and (g). The petition alleged that mother was incarcerated, had a history of drug abuse resulting in repeated incarceration, and had endangered minors’ safety by leaving them without a caregiver. In a detention report filed on the same date, the Department requested that minors be detained in an out-of-home placement. On June 10, 2009, the dependency court ordered minors detained.
Between early June and mid-November 2009, the matter was continued repeatedly, and the parties attempted to reach a settlement. Ultimately, on November 19, 2009, a combined contested jurisdiction and disposition hearing was set for December 3, 2009.
At the hearing on December 3, 2009, the allegations of the petition were amended by agreement of the parties, and mother submitted on the amended allegations. The court sustained the amended allegations, which were that mother had ongoing criminal issues that made her incapable of providing safe and adequate care for minors; had repeatedly been incarcerated and left minors with a relative (grandmother) who was unwilling to care for them, and had a history of drug abuse and criminal arrests and convictions. As recommended by the Department, the dependency court ordered that mother stay drug-free; submit to drug testing and undergo a substance abuse assessment if she tested positive; complete a parenting education program; obtain safe, stable housing upon her release from incarceration; and avoid being arrested and incarcerated in the future.
Between December 2009 and May 2010, mother complied only in part with her reunification plan. She was released from prison in mid-February 2010, but was scheduled to remain on parole until February 13, 2013. After her release, mother moved into an apartment with a friend in Vallejo; this housing situation was safe and secure, but was located outside of Napa County, where her parole conditions required her to reside. She missed two drug tests, tested positive on one occasion, and failed to complete a substance abuse assessment. She attended one parenting class, but missed the next session due to her late arrival, and failed to show up for three appointments with the instructor.
The matter was initially set for a six-month review hearing on June 3, 2010, but ultimately, due to a series of continuances, a combined six- and twelve-month review hearing was held on September 22, 2010. In the interim, in May 2010, mother was incarcerated again.
At the hearing on September 22, 2010, mother submitted a package of certificates evidencing her completion of various parenting, substance abuse, and computer skills programs. The parties agreed, and the court ordered, that due to extraordinary circumstances, reunification services should be extended for an additional six months. The court set an 18-month review hearing for December 2, 2010.
The Department’s report for the 18-month review hearing reported that mother remained incarcerated. She was participating in substance abuse services and parenting education at the facility where she was in custody. Due to her incarceration, however, she had not been able to comply with the requirement that she find suitable housing. The Department recommended that reunification services be terminated, and that the dependency court set a section 366.26 hearing. Mother contested the recommendation, and a hearing was set for January 20, 2011. Prior to the hearing, mother was released from her incarceration.
All further references to dates are to the year 2011 unless otherwise noted.
At the contested hearing on January 20, the Department presented the testimony of two social workers: Sonia Saini, who was assigned to the case in December 2009, and Isabel Ott, who took over the case in December 2010. Saini testified that at the time she recommended termination of reunification services, mother did not have a release date, housing, or any record of being able to refrain from substance abuse while not incarcerated. Saini acknowledged that mother made efforts to comply with her reunification plan while in custody, including completing a parenting class and a substance abuse program that also addressed parenting skills, community transition plans, and developing healthy relationships. During her incarceration, mother had visits from the minors once a week, as permitted by the facility, and wrote to them as well. Saini had interviewed A.S. in August 2010, and reported that A.S. liked visiting with mother, was attached to her, and had an overall positive relationship with her. A.S. was also very bonded to her little brother, A.C.
Ott testified that the Department had decided to adhere to its recommendation that services be terminated, despite mother’s release from custody and entry into a residential treatment program, because mother left the program on January 7, and did not return until a drug court worker located her several days later and persuaded her to contact the program. Mother left because she disagreed with the program staff’s decision to permit A.C. to move into program housing with her, while leaving A.S. in her foster placement, in order to allow mother to bond with A.C., and avoid disrupting A.S.’s home environment and schooling. Even though mother later returned to the program, and her behavior improved, Ott was concerned that mother had left it after seven weeks, was argumentative and manipulative with program staff, and could not account for all of the time she spent outside the program facility.
Ott acknowledged that A.S. had a strong bond with mother and evidently wanted to live with her, and that minors were bonded to one another. Minors were visiting mother weekly at the program facility, and were also in contact with her by telephone. Mother had expressed concern about A.S.’s progress in therapy, and was very engaged with A.S. during her visits. Mother was obtaining additional parenting education at the program. A clinician told Ott that A.C.’s bond with A.S., and his resiliency, would partially alleviate any issues he might experience as a result of a change in placement. Despite these positive factors, Ott and the program staff were concerned about the effect on the children if they were returned to mother’s custody but then had to be taken away again.
Although mother had tested negative for drugs, the program was concerned about her honesty. In addition, mother had been in custody during much of the pendency of the case, did not have a record of being able to stay off drugs while at liberty in the community, and in any event, was still at risk of being incarcerated again in connection with a pending criminal case in Marin County, though this was not a certainty.
On January 25, the dependency court rejected the Department’s recommendation, and ordered that family reunification services be extended until the 24-month review hearing on June 2. The court warned mother, however, that “it’s very important you understand that this is the last time that I can do this.... [I]f you lose anymore [sic] time in the [substance abuse] program, that is going to have a big impact on the 24-month review. [¶] You have to be successful here on out without fail in terms of the program requirements.” The Department’s counsel indicated that if mother left her recovery program in the interim, the Department would file a petition under section 388 to modify the court’s order, and seek to terminate reunification services immediately. The court reiterated that “[i]f there is [sic] any further issues with the program, it’s going to have a big impact on what happens at the next hearing.”
A petition under section 388 is commonly referred to as a JV-180, after the title of the applicable Judicial Council form. (See rule 5.570(b).) We will follow this usage, as the parties have done so in their filings with this court.
Despite these warnings, mother left the program again three weeks later. The Department filed a JV-180 on February 28. On April 13, the dependency court held a hearing on the JV-180. Ott testified that mother left the program on the night of February 14, and the program would not take her back because this was the third time she had left. By leaving the program, mother violated the conditions of two separate parole or probation orders. She was incarcerated on a parole violation from February 16 to February 22. After mother was released, she voluntarily entered a different substance abuse program on March 3, but was arrested on March 7 for violating the terms of her criminal probation by leaving the original program.
As of the hearing date, mother had been out of custody for about a week, and was staying with grandmother, who could not care for the children, but was willing to have the children join mother at her four-bedroom house. Mother had registered for classes at a community college and expected to start taking classes in June. She explained that she left her first program because she “didn’t really care for it, ” even though she knew she would be violating her probation and parole by doing so. She had not entered a treatment program since her most recent release from custody, but was willing to do so, and had been off drugs for nearly a year. Ott confirmed that mother had not tested positive for drugs during the past six months. She had been drug tested by the program she entered on March 3, but Ott had not been given the results of that test.
Ott acknowledged that mother had sought out the second treatment program on her own, had made efforts to communicate with the minors while in custody, and had requested visitation. She also acknowledged that A.S. had a strong bond with mother, and that A.S.’s therapist believed A.S. wanted to be with mother even though A.S. was aware of mother’s periodic incarceration and her substance abuse issues. Nonetheless, Ott opined that mother would not be able to reunify with minors before the 24-month review date of June 2, which was only about six weeks away. Mother was not in a program, still had some pending criminal charges against her, and was not in compliance with the conditions of a dependency drug court program. Ott noted that mother had a pattern of engaging in reunification services only when involved with the criminal justice system, despite multiple opportunities to engage in substance abuse treatment. She opined that moving minors to a permanent plan, to provide them with stability, would be in their best interest.
At the conclusion of the hearing, the dependency court granted the JV-180, terminated mother’s reunification services, vacated the 24-month review date, and set a section 366.26 hearing for August 2. On April 15, mother filed a timely notice of intent to file a writ petition. Her petition was duly filed on May 24. On May 25, this court issued an order to show cause. The Department’s opposition was duly filed on June 13. Neither party requested oral argument.
DISCUSSION
A JV-180 is brought under section 388, which provides that a dependency court may modify a previous order upon a showing that there has been a change of circumstance, and that the requested modification would be in the best interests of the dependent child. The party seeking the modification bears the burden to prove both of those requirements by a preponderance of the evidence. (Rule 5.570(h)(1); see also In re B.D. (2008) 159 Cal.App.4th 1218, 1228; In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) We review a dependency court’s order granting or denying a JV-180 for abuse of discretion. (In re A.S. (2009) 180 Cal.App.4th 351, 358; In re Michael B., supra, 8 Cal.App.4th at p. 1704.) We may not substitute our own judgment for that of the dependency court; reversal is warranted only when the dependency court “exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. [Citation.]” (In re A.S., supra, 180 Cal.App.4th at p. 358.)
Mother acknowledges in her writ petition that the Department showed a change of circumstances in this case, but argues that “the best interest consideration with respect to the minors had not changed sufficiently to justify terminating reunification services....” She stresses that the evidence still showed a strong bond between herself and A.S., which was the primary reason given by the dependency court for extending services at the time of the 18-month review. She also notes that although she was not in treatment at the time of the hearing on the JV-180, she was in appropriate housing with grandmother, and the Department did not introduce any evidence of current substance abuse.
The arguments mother advances are not sufficient to convince us that the dependency court abused its discretion in terminating services and setting a section 366.26 hearing. In January, when the dependency court extended reunification services for the last time, it warned mother that her failure to comply with her substance abuse treatment program would “have a big impact” on the dependency proceedings. The Department also warned mother that it would seek to terminate reunification services if she did not stay in treatment. Despite these warnings, mother left the program—thereby violating the conditions of her probation and parole—because she “didn’t care for” it.
“Childhood does not wait for the parent to become adequate. [Citation.]” (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) By the time the hearing on the JV-180 was held in mid-April, minors had been in foster care for nearly two years, during which time mother had been given multiple opportunities to establish her ability to stay off drugs and out of the criminal justice system. Instead, by leaving her treatment program in mid-February, mother demonstrated that her own preferences were more important to her than her obligations to stay in treatment and out of criminal custody. Under the circumstances, the dependency court did not abuse its discretion in concluding that it would be in minors’ best interests to proceed to the permanency planning stage of the proceedings at the earliest possible date.
DISPOSITION
The petition is DENIED on the merits. (Rule 8.452(h)(1); see § 366.26, subd. (l).) Mother requested a stay of the section 366.26 hearing, in the event this matter could not be decided before the August 2 hearing date. The request for stay is DENIED as moot. Our decision is final as to this court immediately upon filing. (Rules 8.452(i), 8.490(b)(3).)
We concur: REARDON, J., RIVERA, J.