Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. CK65284, Marilyn Martinez, Juvenile Court Referee.
John C. Cahill, under appointment by the Court of Appeal, for Defendant and Appellant.
James M. Owens, Assistant County Counsel, and Frank J. DaVanzo, Principal Deputy County Counsel, for Plaintiff and Respondent.
WOODS, J.
T.V. the mother of A.V. appeals the juvenile dependency court’s order denying her Welfare and Institutions Code section 388 petition seeking return of the minor to her custody, or liberalized visitation or conjoint counseling. For the reasons stated herein, we conclude the juvenile dependency court did not abuse its discretion in ruling on the petition. The court granted the request for conjoint counseling and properly denied the other relief because T.V. failed to show a change of circumstances or the proposed changes would benefit A.V. Accordingly we affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
Prior Dependency Proceedings.
A.V. (born in June 1998) originally came to the attention of the San Bernardino County Department of Children Services (SBDCS) in 2004. The SBDCS filed a section 300 petition and took A.V. into protective custody based on allegations of a history of substance abuse by A.V.’s father and T.V. and an allegation that A.V. had been sexually molested by her paternal grandfather and that her parents had failed to protect her. The petition was sustained. The family received reunification services, and family maintenance services. By order of the court A.V. was returned to her mother’s home after T.V. completed a drug treatment program. The San Bernardino County dependency case was closed in April 2006.
A.V.’s father, B.G., though a party to the dependency proceedings at issue here, is not a party to this appeal.
According to T.V.’s landlord and family friend Mr. P., who was interviewed in connection with the current proceedings, T.V. was able to reunify with her daughter during the San Bernardino County proceedings because T.V. had falsified her urine analysis drug tests.
Current Proceedings.
A.V. came to the attention of the Los Angeles County Department of Children and Family Services (the “Department”) based on an anonymous telephone tip indicating that T.V. had left the child with an adult male friend so that T.V. could go to a party and take methamphetamine. The caller also informed the court about the prior proceeding, stating that although A.V. had been returned to her mother’s care, based on the mother’s completion of her drug program, T.V. had continued to leave her daughter alone with adult males.
When the Department contacted T.V. she denied the allegation of drug use, though did admit that she had recently taken a “hit” from a marijuana cigarette. The social worker required T.V. to submit to a drug test. The drug test revealed positive results for methamphetamine, marijuana and amphetamine.
A.V. confirmed to the social worker that T.V. had left her at home alone, while T.V. went to the beach. The social worker interviewed the maternal grandmother who stated that the maternal great grandmother had been taking A.V. to school each morning so that she could get there on time. A male friend also sometimes bought A.V. breakfast and took the child to school. The grandmother further indicated that T.V.’s landlord picked A.V. up after school, took the child home, that A.V. did her homework and ate dinner at the landlord’s home. A.V. confirmed these arrangements.
The social worker discussed possible placements of A.V. The grandmother did not want the child placed with her because T.V. had been “really mean and forceful” when the child had been placed with the maternal relatives during the San Bernardino County dependency proceedings and the grandmother was afraid of T.V. and did not want to be harassed by T.V.
After a team decision making meeting was held in early October 2006, at which T.V. did not appear, the Department decided to take the minor into protective custody. On October 11, 2006, the Department filed a petition under section 300, subdivision (b) on behalf of A.V., alleging that T.V. and B.G. had a history of substance abuse, that T.V. was a current user of amphetamines, methamphetamines and marijuana and that T.V. had left the minor without adult supervision.
At the detention hearing the court found a prima facie case that the minor was a person described under section 300, subdivision (b), ordered the minor detained, reunification services for both parents and monitored visits for T.V.
The November 2006 jurisdiction/disposition report disclosed that prior to the 2004 proceedings in San Bernardino County there had been six prior referrals to the SBDCS concerning allegations that T.V. had been neglecting A.V. Five of the six referrals had been inconclusive and one was determined to be unfounded. The report further disclosed the minors’ statements that her mother had left her unsupervised overnight on at least one occasion and had often left her alone with several different adult males, so that T.V. could attend parties. The report also indicated that when T.V. was interviewed by the social worker, T.V. acted erratically and appeared to be under the influence of drugs. Mr. P. was also interviewed by the social worker. He confirmed T.V.’s drug use and the fact that T.V. would leave her daughter unsupervised for long periods of time. T.V.’s mother reported that T.V. had used drugs off and on since she was 12 years old. The grandmother also confirmed that T.V. would leave A.V. and not return for days, and that the grandmother would take the child to school and feed her.
During this initial period of detention it was also reported that T.V. had discovered the location of A.V.’s foster care placement and that T.V. had attempted to contact the minor by leaving her a note. When questioned about this, it appeared that A.V. had provided the information to her mother and believed that she had to tell her mother if she asked. The social worker counseled both A.V. and T.V. about the matter. The social worker also opined that it appeared that the child would “do anything for her [mother] as long as she returns home.”
On November 8, 2006, the court sustained the allegations in the petition against T.V. and B.G. concerning their current and past drug abuse. The court ordered family reunification services for both parents. The court ordered T.V. to participate in a drug rehabilitation program with random drug testing, parenting classes and individual counseling. The court ordered the child to remain placed in foster care and for the maternal grandmother to be evaluated for possible placement.
In January 2007, it was reported that although T.V. claimed that she was participating in counseling, parenting and drug treatment, she had only submitted to one drug test, attended one parenting class and had not formally enrolled in drug treatment. When questioned about this, T.V. apparently stated that she was trying to “buy time” to get her daughter back. A.V. was moved to several different foster care placements during late 2006 and early 2007 because she having behavioral problems in the homes, including difficulty in following rules, helping with chores, listening to the foster parents and getting along with the other children in the home. The six-month review report indicated that T.V had not fully participated in court- ordered services, that she had moved out of the county and then back again, but had continued to have weekly monitored visits with A.V., which had purportedly gone well.
The report prepared for the six-month review hearing also indicated that T.V. was still not participating in court ordered services or submitting to drug testing, but was visiting the child. It further indicated that A.V. continued to have behavioral problems and some difficulties in her foster care home; the child had been in therapy and had been diagnosed with Attention Deficit Hyperactivity Disorder and was taking medication. At the hearing, the court ordered six more months of services for T.V.
In the report prepared for the twelve-month review hearing, the Department indicated that T.V. had not yet participated in court ordered drug programs, drug testing or consistent parenting classes. The minor was unhappy in her placement and wanted to return to her mother. According to her therapist, the child repeatedly stated her belief that she would be returned to her mother after the next court hearing. In her diary, the child also expressed the desire to kill herself if she could not go back to her mother. T.V. continued to visit the child but was often late. At the section 366.21, subdivision (f) hearing in December 2007, the court ordered six more months of reunification services.
In the 18-month report, the Department indicated that T.V. had inconsistently begun attending drug treatment, that she had taken two drug tests which were negative, but had not submitted to any of the Department’s random drug tests. The report stated that T.V. claimed to have completed a parenting class. Through her therapist it was reported that A.V. was excited to reunify with her mother and that T.V. had been telling the child that they would soon be reunified. Apparently, T.V. had told her daughter that she would take the child to Texas after the next court hearing “no matter what the judge says.” It was reported that after court hearings when the child did not go back to her mother, A.V. became depressed and upset. The Department recommended the termination of reunification services.
On April 25, 2008, T.V. withdrew her request for a contested hearing on the issue of termination of services. The court terminated reunification services and set the matter for a section 366.26 hearing, observing that T.V. was only in partial compliance with the court’s orders relating to drug treatment and testing, and that while she visited the child regularly she was frequently late.
The section 366.26 report disclosed A.V’s emotional and psychological difficulties--that A.V. was depressed, unhappy, impulsive, disruptive, aggressive and preoccupied with the prospect of returning to her mother’s care. A.V. also had problems at school developing relationships and with behavioral problems and acting out which affected her school performance. In August 2008, A.V.’s counsel asked and the court granted a request to find a new foster care placement for the child because of incidents in the foster home.
The Department reports indicated that T.V. continued to have visits with her daughter, and that they discussed A.V. returning home which caused the child emotional difficulty. Nonetheless, the report described mother and daughter as having an incredible bond. It was also reported that the social worker discovered that A.V. had been giving T.V. her school uniform pants so that T.V. could sell them for money. On August 18, 2008, the court continued the section 366.26 proceedings and ordered T.V. not to discuss the case and the prospect of reunification with A.V.
Although the Department had initially identified adoption by relatives, including an out of state relative as the permanent plan for the child, neither of the home studies for the prospective placements was approved.
On August 30, 2008, T.V. filed a section 388 petition seeking the return of the child to her custody. She claimed that she was now participating in court ordered programs and services, had maintained visitation with her daughter and she and A.V. had a strong bond. The court set the matter for a hearing in September 2008.
After considering the arguments and evidence presented by T.V. and the Department in opposition, the court denied the petition. The court found that although T.V. and her daughter had a strong bond, T.V. had not made sufficient progress in individual counseling. The court also noted that even though she had shown evidence of some attendance in the drug treatment program, she had also missed a number of drug tests and thus demonstrable progress in treatment was not shown.
The current planning assessment in the fall of 2008, indicated that A.V. continued to have problems functioning and interacting with others. It was further reported that T.V. had told the child that she did not have to follow instructions from anyone other than T.V.
On December 9, 2008, T.V. filed a second 388 petition, in which she again requested return of the child. She attached to her petition letters from her drug counselor attesting to her participation in group counseling for several weeks and recent negative drug tests. She also presented evidence of completion of parenting classes. The court summarily denied the petition finding that she had not presented sufficient evidence of a change of circumstances. The court noted a four month gap in T.V.’s drug testing, though the court also recognized T.V. was participating in the drug rehabilitation program. The court also ordered A.V. referred to a “D” rated home evaluation, and continued the section 366.26 hearing for March 9, 2009.
On March 6, 2009, T.V. filed a third section 388 petition. The written petition requested only that A.V. be returned to T.V.’s home. T.V. attached to her petition letters indicating her completion, on February 24, 2009, of her substance abuse and individual counseling program.
The Department report prepared for the March 9, 2009, section 366.26 hearing indicated that the recent effort to find an adoptive placement with a paternal relative out of state had proved unsuccessful. The report further indicated that the minor had been referred to more intensive counseling to deal with issues of bulimia and past sexual abuse and that she had just begun treatment with a new therapist. The report further reflected that T.V. continued to have monitored visits with the child twice a week for two hours, but that T.V. was often 15-30 minutes late. It was reported that when T.V. was late or did not show up the child would act in a self-destructive manner. The report stated that relationship between T.V. and A.V. was strong, but it was also described as “sisterly” – that they would play computer games and comb each other’s hair. It was further observed that T.V. was unable to set appropriate boundaries or discipline the child and that the child acted defiantly towards T.V and others after the visits. Apparently, A.V. stated that she planned to “sabotage” her placement in the hope that she would be returned to her mother. It was further reported that T.V. had to be counseled concerning the visitation rules, which she often disregarded. The social worker opined that it did not appear that “mother has gained any real skills and techniques to help her mitigate the issues which led this matter to the attention of the [Department].”
At the March 9, 2009, section 366.26 hearing the court first addressed the section 388 petition. The court indicated that its tentative ruling would be to deny the section 388 petition seeking A.V.’s returned to T.V. The court observed that T.V. had still not made sufficient progress in addressing her issues. The court stated that although T.V. had made progress in court ordered programs, it wanted to see more progress by both T.V. and the child and more stability from them. The court noted that T.V. was still late for the visits and that A.V. had expressed a desire to sabotage all of her placements. Father’s counsel urged that if the court was not willing to order return of the child to T.V., the court should reinstate family reunification services “so that we can place them in conjoint therapy and mother can work with her daughter in a therapeutic setting of some type.” T.V.’s counsel joined in the request for “conjoint counseling to address the issues that is [sic] brought before the court” “or” “liberalized visits.”
The court allowed the parties to argue the request for reinstated services. The Department opposed unmonitored visits and family counseling. The court then ruled as follows: “As to the 388 petition the mother just completed a three-month drug rehabilitation program. Given the totality of the case, the length of her substance abuse, I find that there’s not sufficient information to find there’s new evidence or sufficient changed circumstances to grant this 388. Mother’s circumstances are changing. They’re not sufficiently changed. And therefore it is not in the child’s best interests to be returned to the custody of her mother.”
The court then proceeded to the section 366.26 hearing, ruling that it was not likely the child will be adopted and that there was no one willing to take guardianship. The court therefore ordered A.V. into a “planned permanent living arrangement” (i.e., long-term foster care). The court noted that the Department could continue to look for an adoptive placement and to look for relatives to adopt the child. The court ordered a review of the permanent plan in August 2009.
The court ordered A.V. and T.V. to participate in family counseling, remarking that conjoint counseling is “perhaps the appropriate venue for [mother and daughter] to understand that at this time [A.V.] is not going home; to not interrupt the relationship that they do have, but to try to help them have a better understanding of what is going on in their lives.” The court ordered visits to remain monitored.
At the August 10, 2009, review hearing, the court ordered unmonitored day visits for A.V. and T.V. “in a public setting beginning with approximately 4 hours with [the Department] discretion to further liberalize.”
T.V. filed this appeal.
DISCUSSION
Before this court T.V. contends the juvenile court abused its discretion in denying her section 388 petition.
Preliminarily we note that our review is guided by what is and is not at issue in this appeal. Below, in the written 388 petition, T.V. sought return of the child to her custody. However at the hearing on the section 388 petition, T.V. also asked the court to consider reinstating reunification services, specifically “liberalized visits” or “conjoint counseling” “to address the issues that is [sic] brought before the court.” Before this court T.V. does not complain that the juvenile dependency court erred in failing to conduct a full evidentiary hearing on her section 388 petition. Likewise she is not claiming that the court erred in denying her petition insofar as it sought a return of the child to her custody. In addition, T.V. is not challenging the court’s actions with respect to the section 366.26 proceeding in which the court ordered her into a long-term foster care arrangement. Instead, T.V. in this court claims she demonstrated a change of circumstances which she describes as her completing a drug treatment program, a parenting class, drug testing and individualized counseling and the court’s failure to come up with a permanent plan for the child. In view of these circumstances, T.V. contends that the lower court erred in failing to reinstate reunification services. As we shall explain, we find no error.
Section 388 provides, in pertinent part, that any parent or other person having an interest in a dependent child of the juvenile court, “may upon grounds of change of circumstance or new evidence, petition the court... for a hearing to change, modify, or set aside any order of the court previously made....” (Welf. & Inst. Code, § 388.) It provides a means for the court to address a legitimate change in circumstances--one last opportunity to reinstate reunification services or to make a different order with respect to the children and their care prior to final resolution of custody status. (In re Marilyn H. (1993) 5 Cal.4th 295, 309; In re Kimberly F. (1997) 56 Cal.App.4th 519, 528 [Section 388 provides “an ‘escape mechanism’ when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights”].)
After the court terminates reunification services, the focus shifts to the needs of the child for stability and permanent placement; there is a rebuttable presumption that continued foster care is in the best interests of the child. Indeed, the best interests of the child are of paramount consideration when a petition for modification is brought after termination of reunification services. (In re Stephanie M. (1994) 7 Cal.4th 295, 316-317.) A section 388 motion requires a two-step determination. First, the moving party must show a genuine, significant and substantial change of circumstances or new evidence. (In re Kimberly F., supra, 56 Cal.App.4th at p. 529; In re Heraclio A. (1996) 42 Cal.App.4th 569, 577.) Second, the petitioner must prove the undoing of the prior order would be in the best interests of the child. (In re Kimberly F., supra, 56 Cal.App.4th at p. 529.)
“In evaluating whether the petitioner has met his or her burden to show changed circumstances, the trial court should consider: ‘(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.’ (In re Kimberly F., supra, 56 Cal.App.4th at p. 532 [‘While this list is not meant to be exhaustive, it does provide a reasoned and principled basis on which to evaluate a section 388 motion.’].)” (In re B.D. (2008) 159 Cal.App.4th 1218, 1228, 1229.) Likewise, “a petition which merely alleges changing circumstances and would mean delaying the selection of a permanent home for a child... does not promote stability for the child or the child’s best interest.” (In re Kimberly F., supra, 56 Cal.App.4th at p. 529.) “[S]pecific allegations describing the evidence constituting the proffered changed circumstances or new evidence is required. [Citation.]” (In re Anthony W. (2001) 87 Cal.App.4th 246, 250; In re Angel B. (2002) 97 Cal.App.4th 454, 460.) The court may take into account the entire record, not just the allegations of the petition and supporting attachments. (Cf. In re Angel B., supra, 97 Cal.App.4th at p. 463.)
Substance abuse is generally considered a more serious problem and, therefore, is less likely to be satisfactorily ameliorated in the brief time between termination of services and the section 366.26 hearing. (In re Kimberly F., supra, 56 Cal.App.4th at p. 531, fn. 9.) In In re Amber M. (2002) 103 Cal.App.4th 681, one of the factors leading the appellate court to conclude that the juvenile court had not abused its discretion in denying mother's section 388 petition was that mother had a 17-year history of drug abuse, had relapsed twice previously, and had been clean for only 372 days. (Id. at p. 686.) Likewise, in In re C.J.W., the court concluded that three months of sobriety was insufficient to show changed circumstances when evaluated with the parents' extensive history of drug abuse and failure to reunify with other children. (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081.)
In In re Angel B., supra, 97 Cal.App.4th 454, the appellate court affirmed a summary denial of a mother’s 388 petition where the mother had a 20-year history of substance abuse from which she had tried but failed to rehabilitate herself on a number of occasions, had failed to reunify with an older child, and the child subject of the petition, Angel, was likely to be adopted by the same family that had adopted the older sibling. Although the mother had enrolled in a residential drug treatment program, tested clean for four months, completed various classes, obtained employment and consistently visited Angel, her 388 petition seeking either supervised custody of Angel or renewed reunification services was summarily denied and her parental rights were terminated. (Id. at p. 459.) The appellate court affirmed, reasoning the mother’s petition showed only that she was making progress, not that she was presently able to provide suitable care for Angel. “[S]imple completion of the kinds of classes taken by... Mother here 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. [Citations.]” (Id. at p. 463.)
This court reviews the denial of a section 388 petition for an abuse of discretion. (In re B.D., supra, 159 Cal.App.4th at p. 1228.) We will affirm unless the appellant demonstrates the lower court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. When two or more inferences can be reasonably deduced from the facts, the reviewing court has no authority to substitute its judgment for that of the juvenile court. (In re Stephanie M., supra, 7 Cal.4th at p. 318.)
Here in our view, the court did not abuse its discretion in denying the section 388 petition. T.V. did not show either a substantial change in circumstances or that the proposed change would benefit her daughter.
First, as to evidence of change of circumstances, while T.V. presented evidence that she had completed a drug treatment program, participated in some drug testing, counseling and completed a parenting class, these efforts were all too short in duration when weighed against T.V.’s history of drug abuse to warrant granting the relief T.V. sought in the petition. Here as the lower court observed, T.V. had a long history of drug abuse—according T.V.’s mother, T.V. had been using drugs since she was 12 years old. The evidence that she presented to the court indicated that she had completed the drug treatment and counseling program only two weeks before she filed the section 388 petition. Moreover she has a history of unsuccessful efforts at treating her drug dependency. The prior dependency proceedings in San Bernardino County also concerned T.V.’s drug use, and T.V.’s long time family friend stated that T.V. had falsified drug tests in that prior proceeding. Furthermore, for 18 months during these proceedings T.V.’s participation in court-ordered programs and court-ordered drug testing was half-hearted; it was not until after the court terminated reunification services that T.V. began to seriously address the matters which led to these proceedings.
T.V. simply does not have a sufficient track record of effectively addressing her drug abuse issues. At most T.V.’s recent sobriety shows that T.V. was attempting to address some of these issues and was in the process of changing. However, evidence of “changing” circumstances is insufficient to obtain relief under section 388. (In re Kimberly F., supra, 56 Cal.App.4th at p. 529.) Thus, the court acted well within its discretion in determining T.V.’s recent correction of the behaviors leading to the dependency action constituted “changing” rather than “changed” circumstances.
Also the fact that the court ordered A.V. into a long-term foster care plan does not amount to a “change of circumstances” to warrant relief under section 388. Typically “change of circumstance” as used in this context relates to the issues or problems which gave rise to the dependency action. In addition, in determining the change of circumstances, the focus is on changes occurring between the entry of the order sought to be modified and the filing of the 388 petition. Here the circumstance—the order of the minor into long term foster care plan is not an event that occurred between the termination of reunification services in April 2008 and the section 388 petition in March 2009. Instead it is a circumstance ordered by the court at the section 366.26 hearing, which was considered during the same proceeding as the 388 petition.
In addition, below, T.V. did not demonstrate that any of the proposed relief—return of the child, liberalized visits or conjoint counseling—was in the best interests of the child. It is clear that T.V. and her daughter share a strong bond and enjoyed regular monitored visits. However, the evidence presented to the dependency court also showed that their relationship was “sisterly” rather than of parent and child. T.V. had difficulty setting boundaries with A.V.; there was also some indication that T.V. discussed the dependency proceedings with her daughter even after T.V. had been told not to do so by the Department and the Court. T.V.’s actions filled A.V. with the false hope that she would soon be returned to her mother. Moreover, A.V. had expressed a desire to sabotage her placements. T.V. was also often late for the visits which proved traumatic for A.V. Given the seriousness of the problems which led to the dependency proceedings and the brief time since T.V. had addressed her drug problems we conclude the court did not abuse its discretion in denying the relief sought in the written petition or in ruling upon alternative relief requested for the first time during the oral argument on the petition.
The Department complains that T.V. never formally requested the additional relief--conjoint counseling and liberalized visitation--in a written petition as required by California Rules of Court, rule 5.570, and thus, the Department implicitly suggests that the juvenile dependency court need not have considered the amended oral request. It is true that section 388 petitions must be in writing under California Rules of Court, rule 5.570 and that the better practice is to submit amended petition and supporting evidence in writing, rather than by oral presentation. However, the dependency court is not precluded from considering an oral amendments or oral requests for alternative relief to that stated in the written section 388 petition, especially where, as here, the evidence necessary for consideration of the request is before the court and all parties have had a full and fair opportunity to address the matter. In any event, the Department has not demonstrated that it suffered any prejudice as a result of the court’s consideration of the amended request for relief.
In any event, T.V. has not shown she was prejudiced by any error in the court’s order. Before this court appellant complains that the lower court failed to reinstate reunification services. However, she has not identified any services other than counseling and liberalized visitation which should have been ordered by the dependency court. Indeed, her analysis focuses almost exclusively on the alleged failure to order conjoint counseling despite the fact that the court did in fact ordered such services. The minute order from the March 9, 2009, hearing indicates: “DCFS to assist minor and mother to participate in family counseling.” The court’s order did not limit the extent of the counseling or the types of topics that the counseling could address. At the hearing the court indicated that counsel should address certain matters—to help both mother and daughter understand that at this time A.V. was not going home and [that counseling should not] disrupt their relationship but to try to help them have a better understanding of what is going on in their lives. These comments reflect T.V.’s counsel request at the hearing, i.e., she sought conjoint counseling to work on the issues that brought them to the court. In view of her requests in the juvenile dependency court, we reject appellant’s complaint that the counseling order was inadequate or an abuse of the court’s discretion.
We note that at a subsequent status hearing in August 2009, the court granted unmonitored day visits for T.V. and A.V. and gave the Department discretion to liberalize those visits.
In view of all of the foregoing we find the court did not err in denying the section 388 petition.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P.J. JACKSON, J.