Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK66260, Marilyn Mordetsky, Juvenile Court Referee.
Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minor.
DOI TODD, J.
Appellant Elaine V. (Mother) appeals from the denial of her petition brought pursuant to Welfare and Institutions Code section 388 seeking to modify a suitable placement order to enable the child A.V. to live with her in a mother-child prison program. We affirm. The juvenile court properly exercised its discretion to determine that A.V.’s best interests would not be served by a change of placement.
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Jurisdiction and Disposition on Original and Subsequent Petitions.
Mother was arrested several times throughout 2007 and was ultimately placed on formal probation for three years in October 2007. She was receiving reunification services from the Department of Children and Family Services (Department) for her two older children when A.V. was born in January 2008. In February 2008, Mother and M.N. (Father) agreed to a voluntary family maintenance (VFM) plan for A.V. Although Mother initially partially complied with the VFM plan, by January 2009 the whereabouts of Mother, Father and A.V. were unknown.
Father was not the parent of A.V.’s two older siblings.
In January 2009, the Department filed a section 300 petition as to A.V. only. The petition alleged under section 300, subdivision (b) that Mother’s history of substance abuse and failure to comply with court orders regarding A.V.’s siblings placed A.V. at risk, and under subdivision (g) that A.V.’s Father had failed to provide adequate support. Neither Mother, Father nor A.V. appeared at the January 29, 2009 detention hearing. The juvenile court ordered A.V.’s detention; it issued a protective custody warrant for him and arrest warrants for Mother and Father.
Father, in custody, appeared in court at a February 13, 2009 hearing. The juvenile court recalled the arrest warrant and ordered that reunification services be provided to him. Father indicated that he had some Native America heritage, and the juvenile court directed the Department to provide the appropriate notices under the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. (ICWA). Several months later, after receiving responses to the notices, the juvenile court determined that the ICWA did not apply.
The Department was unsuccessful in locating Mother and A.V. before the February 27, 2009 date set for the jurisdiction/disposition hearing. At one point, the social worker spoke to someone at a contact number who implied that Mother was there, but Mother declined to take the call. Further, after Mother attempted to visit A.V.’s siblings, their adoptive parent reported that A.V. was with Mother and that she had declined to allow Mother to visit until she contacted the Department.
In a Department interview before the next hearing, Father reported that he had lived with Mother and A.V. during the six to seven months after A.V. was born. During that time, he and Mother lived with A.V.’s maternal grandmother and smoked marijuana approximately three times per week. As of March 2009, Father did not have a stable residence.
In Mother’s and A.V’s continued absence, the juvenile court adjudicated the petition, finding that A.V. was a person described in section 300, subdivision (b) and sustaining paragraph (b)(1) and dismissing paragraphs (b)(2) and (g), the latter of which resulted in Father’s dismissal. Notwithstanding the dismissal, Father agreed to randomly drug test.
Mother first appeared in court on June 4, 2009. She testified that the last time she saw A.V. was on May 29, 2009 before she was incarcerated. She could not testify with any certainty as to A.V.’s current whereabouts, indicating he was either with a friend or with Father. Mother further stated that the only reason she had taken A.V. without reporting to the Department was because she had been smoking marijuana and feared the Department would take A.V. from her. She expressed willingness to cooperate with the Department. The juvenile court recalled Mother’s arrest warrant but left A.V.’s outstanding warrant intact. Later that same day, the juvenile court recalled the matter to indicate that the Department could not locate either Mother’s friend or Father on the basis of the information Mother had provided.
The Department located A.V. five days later and placed him in foster care. Although Father initiated contact with the Department about A.V.’s whereabouts during that five-day period, he was later uncooperative in helping the Department locate A.V. The juvenile court recalled A.V.’s protective custody warrant.
On June 26, 2009, the Department filed a subsequent petition pursuant to section 342, which alleged that Mother’s disappearance with A.V. and Father’s withholding information about A.V.’s whereabouts had placed A.V. at risk, and that Father’s history of drug use and refusal to drug test continued to place A.V. at risk (§ 300, subd. (b)).
At the juvenile court’s direction, the Department interviewed Mother on August 4, 2009. She stated that A.V. had been living with her until she was arrested and incarcerated. Contrary to her earlier statements, Mother said she had not been using drugs while avoiding the Department; she had run away because she had violated her probation, not her VFM plan. She intended to do everything she could to reunify with A.V. when released from custody in January 2010.
On August 11, 2009, the juvenile court adjudicated the section 342 petition, finding it true with the exception of there being an outstanding warrant for Father. The juvenile court immediately proceeded to disposition on both the section 300 and the section 342 petitions. It found by clear and convincing evidence that there were no reasonable means to protect A.V. absent removal from Mother’s and Father’s custody. It ordered that Mother and Father receive reunification services. They were ordered to attend a parenting education program and individual counseling to address substance abuse, and to drug test randomly. They also received monitored visitation with A.V. During the same hearing, the juvenile court also terminated Mother’s parental rights as to A.V.’s two older siblings, and they remained placed with their paternal grandparents as prospective adoptive parents.
Review Hearings.
In its six-month review report, dated February 9, 2010, the Department reported that A.V. had been placed with his older siblings and was thriving. In August 2009, Mother was under house arrest, living with her mother. In September 2009, A.V.’s caregiver took A.V. for a visit during that period, but he did not know Mother and ran crying from her. The social worker met once with Mother in September 2009 to inform her she was not in full compliance with her case plan. That was the last communication the Department had with Mother before she was arrested in October 2009 for felony burglary and thereafter sentenced to four years in prison. Father had visited with A.V. once during the previous six months and had not followed through on his case plan. The Department recommended that reunification services be terminated for both Mother and Father, and Mother’s counsel asked for a contested hearing on the recommendation.
Mother was not present at the May 3, 2010 contested hearing. Since March 2010, the social worker had telephoned and once written Mother’s counselor in prison; she had also received a voicemail from Mother to which she responded by mail. The juvenile court continued the hearing as to Mother and directed the Department to prepare a supplemental report regarding the services available to Mother while incarcerated. It conducted the hearing as to Father, receiving evidence in the form of the Department’s prior reports and service logs and thereafter ordering that his reunification services be terminated.
For the June 15, 2010 hearing, the social worker reported that she had written to Mother and her counselor to inquire about available programs. Although she reported that neither had responded to provide her with the requested information, Mother wrote her a letter identifying several different programs that were available to her. After again continuing the matter for one week, the juvenile court held a contested 12-month hearing pursuant to section 366.21, subdivision (f) instead of a six-month hearing pursuant to section 366.21, subdivision (e). Mother and the social worker testified. That testimony established that the social worker had done little more than to write Mother two or three letters during Mother’s incarceration. Mother produced evidence that she had completed a parenting class. She also described a mother-infant program which would be available to her in July 2010; within 10 days of enrollment, she would be eligible to have A.V. placed with her while she participated in other programs. After outlining the services that must be provided to an incarcerated parent as outlined in section 361.5, subdivision (e)(1), the juvenile court found by clear and convincing evidence that Mother was not provided with reasonable services. As a remedy, the juvenile court ordered that Mother receive six additional months of reunification services. The court noted that “the fact that the mother may not be released from incarceration any time soon still does not relieve the social worker’s duty to look at her place of incarceration to see if that child could be placed with her.”
Pursuant to the juvenile court’s order, on July 22, 2010 the Department reported on the status of the Community Prison Mother Program (Program) about which Mother had previously testified. The Program coordinator identified several criteria for admission to the Program, and the Department’s report highlighted the criteria that it believed rendered Mother ineligible. Those criteria included that Mother must have legal custody of the child, must receive permission from the juvenile court where the child is a dependent of the court, must have been the primary caregiver prior to incarceration, cannot have the placement challenged by the Department, and cannot be declared an unfit parent by the court.
At the hearing, Mother’s counsel stated that he had spoken with the Program coordinator directly, who indicated that Mother would be eligible for the Program and stated that many mothers in the Program had open dependency cases. The juvenile court found that the Department’s progress report in no way established that it was providing reasonable services to Mother. It ordered the social worker to be present at the next hearing.
In a September 15, 2010 review report, the social worker indicated that she had misunderstood the eligibility criteria for the Program. Per additional clarification from the Program coordinator, the Department explained that the Program required two different forms of eligibility—one through the Department of Corrections and one through the Program itself. While Mother satisfied the Department of Corrections requirements, the criteria previously identified related to the Program’s eligibility requirements. According to the Department, those criteria remained relevant to its determination whether to object to A.V.’s placement in the Program. As indicated in a letter from the Program to the Department regarding Mother’s eligibility, “[p]art of the approval process mandates that this institution contact the social services agency in the inmate’s county of last legal residence to determine if that agency has any objection to the inmate mother’s participation in this program.” The Department had five days from the date of the letter to challenge the appropriateness of Mother’s entry into the Program.
In its report, the Department expressed its concerns with Mother’s entry into the Program, including that Mother failed to reunify with A.V.’s siblings; she absconded with A.V. when the case first opened; she had only limited contact with A.V. during the past year; A.V. would be deprived of sibling contact if placed in the Program; and the case would need to be transferred to a different county, as both Mother and A.V. would reside in Madera County where Mother was incarcerated. Accordingly, the Department wrote to the Program, stating its intent to challenge Mother’s participation in the Program on all bases except the necessity of transferring the case.
Mother’s Section 388 Petition.
At the September 15, 2010 hearing, counsel for Mother indicated that he intended to file a section 388 petition seeking an order placing A.V. with Mother through the Program. In her section 388 petition, filed two days later, Mother sought a change in the suitable placement order and requested that A.V. be placed with her in the Program. Mother had been accepted into the Program through the Department of Corrections, but her application was on hold because of the Department’s objection. With respect to the changed circumstanced that warranted the change in order, the petition provided: “Without services provided by CSW, mother completed parenting at her site of incarceration and regularly attends NA classes. She voluntarily applied for and has been approved for the Community Prisoners Mother Program where she will be provided with intensive services including drug rehab with random testing, individual counseling, interactive parenting and so on.” As to why the proposed change would be better for A.V., the petition stated: “It is in the best interest of the child to be returned to his mother who has been making great efforts on her own to reunify with her child. The child is two years old and can be placed with the mother in the [Program] where he will have structure and stability in the care of his mother.”
In response to the petition, the Department maintained its objection to Mother’s and A.V.’s participation in the Program. In connection with Mother’s changed circumstances, the Department was unable to verify the parenting education program for which Mother submitted a certificate of completion. It later submitted attendance logs showing that Mother had attended a total of 11 Narcotics Anonymous meetings between April and October 2010. The Department asserted that it did not believe the proposed change in order was in A.V.’s best interests because he had been in his current placement for over one year; he had bonded with his caregivers and siblings; he was safe and thriving in his current environment; and he had no relationship with Mother.
At the November 1, 2010 hearing on the section 388 petition, A.V.’s counsel joined with the Department in arguing that the proposed change of order would not be in A.V.’s best interests. Following argument, the juvenile court took the matter under submission and issued its ruling at a November 16, 2010 hearing. The juvenile court ruled that Mother had established changed circumstances with her acceptance into the Program, demonstrating that placement of A.V. with her was a possibility. But, it found that Mother had not established it would be in A.V.’s best interests to place him with Mother while incarcerated, given that he had not lived with Mother for a substantial period of time, and was bonded with his caretakers and thriving in his current placement. The juvenile court concluded that putting him in an unfamiliar environment would not serve his best interests, expressly distinguishing the situation from one where a child had only been detained for a short period of time. Accordingly, the juvenile court denied the petition.
This appeal followed.
DISCUSSION
Appellant contends that the juvenile court abused its discretion by denying her section 388 petition. Her argument focuses on the timing of her petition. She contends that because she filed her section 388 petition before reunification services had been terminated, the juvenile court abused its discretion by emphasizing the stability of A.V.’s current placement in connection with its best interests’ determination and, instead, should have focused on A.V.’s reunification with Mother. We disagree. The juvenile court properly exercised its discretion and considered the totality of the circumstances in concluding that A.V.’s best interests were served by remaining in his current placement.
I. Applicable Law and Standard of Review.
Section 388, subdivision (a) allows a parent to petition the court to change, modify or set aside a previous court order. The parent has the burden of showing, by a preponderance of the evidence, both that there is a change of circumstances or new evidence and that the proposed modification is in the child’s best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Aaliyah R. (2006) 136 Cal.App.4th 437, 447; see also Cal. Rules of Court, rule 5.570(f).) In evaluating whether a parent has satisfied his or her burden, the court in In re D.R. (2011) 193 Cal.App.4th 1494, 1512 explained: “The fact that the parent ‘makes relatively last-minute (albeit genuine) changes’ does not automatically tip the scale in the parent’s favor. [Citation.] Instead, ‘a number of factors should be examined.’ [Citation.] First, the juvenile court should consider ‘the seriousness of the reason for the dependency....’ [Citation.] ‘A second important factor... is the strength of the existing bond between the parent and child....’ [Citation.] Finally, as ‘the essence of a section 388 motion is that there has been a change of circumstances, ’ the court should consider ‘the nature of the change, the ease by which the change could be brought about, and the reason the change was not made before....’ [Citation.]” Moreover, the petition must be considered in the context of the entire dependency proceeding as a whole. (In re Marilyn H. (1993) 5 Cal.4th 295, 307.)
“‘Whether a previously made order should be modified rests within the dependency court’s discretion, and its determination will not be disturbed on appeal unless an abuse of discretion is clearly established.’” (In re Amber M. (2002) 103 Cal.App.4th 681, 685.) “‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’” (In re Stephanie M., supra, 7 Cal.4th at pp. 318–319.) Thus, we will not reverse a juvenile court’s denial of a section 388 petition “‘“unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].”’” (Id. at p. 318.) “The denial of a section 388 motion rarely merits reversal as an abuse of discretion. [Citation.]” (In re Amber M., supra, at pp. 685–686.)
II. The Juvenile Court Properly Exercised Its Discretion to Deny Mother’s Section 388 Petition.
Following the hearing on Mother’s section 388 petition, the juvenile court held a subsequent hearing to pronounce its ruling. At that point, the juvenile court addressed both prongs of the petition. It concluded that Mother had exhibited a change of circumstances in that the Department of Corrections had determined she qualified for the Program. Notably, the juvenile court did not consider Mother’s other evidence of changed circumstances, including a certificate of completion from a parenting program which the Department could not verify and an attendance log showing that Mother attended 11 Narcotics Anonymous meetings over the span of seven months. Acknowledging it was faced with a difficult decision, the juvenile court premised its ruling on its finding that, in light of all the circumstances, it would not be in A.V.’s best interests to be placed with Mother at her place of incarceration.
The juvenile court reasoned: “[A.V.] is two years old. He’s been in his current placement since September of 2009, over a year ago. Half of his life has been while placed in that placement. And from what I could read, being that he’s not been with the mother for a substantial period of time and he’s been with the caretakers, he seems to have more of a bond with the caretakers. He’s living with his siblings. If the court were to consider placing the minor with the mother in her place of incarceration, it would put him in an environment he is totally unfamiliar with. I would put him in an environment with a mother that he’s not as familiar with as he was previously in his life. This is really not a situation where had we placed the child with the mother shortly after the child had been detained from her, it clearly would have been in the best interest of the child. But given the circumstances that the court is currently presented with and the law which the court must proceed with in the 388 standard, I did not find that it would be in the best interest of the child, given the current circumstances, to place him with the mother in her place of incarceration at this time.”
We find no abuse of discretion. In summarizing the factors which come into play in a best interests evaluation, the court in In re D.R., supra, 193 Cal.App.4th at page 1512 relied on In re Kimberly F. (1997) 56 Cal.App.4th 519, 530–532, which began with the premise that a best interests analysis must involve more than a simple comparison between the parent’s and the caretaker’s households. Rather, courts must examine a number of factors along a continuum—one end being the notion that any positive change entitles a parent to the return of the child and the other being “the obvious attractiveness of insuring that the child remains with highly functional caretakers.” (In re Kimberly F., supra, at p. 530.)
An initial factor involves “the seriousness of the reason for the dependency in the first place.” (In re Kimberly F., supra, 56 Cal.App.4th at p. 530.) Here, Mother’s substance abuse, repeated criminal activity and absconding with A.V. for several months were serious and stand in sharp contrast to the filthy home allegation in In re Kimberly F. (See In Kimberly F., supra, , at p. 531, fn. 9 [contrasting a dirty house case from one involving a parent who loses a child because of substance abuse problems].) Mother admitted and Father confirmed that she smoked marijuana while she had custody of A.V. She testified that she hid A.V. from the Department because she was using drugs and knew if she had a “dirty drug test” the Department would remove him from her custody. Mother continued to engage in criminal activity throughout her reunification period, ceasing only once incarcerated. Moreover, Mother failed to reunify with A.V.’s two older siblings during the course of A.V.’s dependency case, further demonstrating the seriousness of Mother’s ongoing behavior.
The second factor involves evaluating the strength of the existing parent-child bond, together with a corresponding evaluation of “the strength of a child’s bond to his or her present caretakers, and the length of time a child has been in the dependency system in relationship to the parental bond....” (In re Kimberly F., supra, 56 Cal.App.4th at p. 531.) At the time of the hearing on the section 388 petition, there was no evidence that Mother and A.V. had any type of bond. (See In re Justice P. (2004) 123 Cal.App.4th 181, 192 [“The presumption favoring natural parents by itself does not satisfy the best interests prong of section 388”].) Although A.V. purportedly lived with Mother during his first one and one-half years, Mother did not know who was taking care of A.V. after she was arrested in May 2009. Once A.V. was placed in foster care, she visited sporadically until her arrest in October 2009. Although Mother stated that she wrote letters to all her children, A.V.’s caretaker could only recall one instance where A.V. was included in a group letter to all three children.
In contrast to A.V.’s relationship with Mother, A.V. was thriving with and bonded to his foster parents, who were his siblings’ paternal grandparents. He had lived with them for over one year, and they were the only parents he had ever known. “‘While the bond to the caretaker cannot be dispositive..., our Supreme Court made it very clear in [In re Jason O. (1994) 8 Cal.4th 398, 408, 414–422] that the disruption of an existing psychological bond between dependent children and their caretakers is an extremely important factor bearing on any section 388 motion.’ [Citation.]” (In re D.R., supra, 193 Cal.App.4th at p. 1512.) Thus, contrary to appellant’s position, the juvenile court was well within its discretion to consider the stability of A.V.’s current situation as a factor weighing against granting the section 388 petition. (E.g., In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081 [section 388 petition properly denied where “there was no showing whatsoever of how the best interests of these young children would be served by depriving them of a permanent, stable home in exchange for an uncertain future”]; In re Brittany K. (2005) 127 Cal.App.4th 1497, 1507 [best interests prong of section 388 petition not satisfied where there was no “independent evidence that it was in the minors’ best interests to be taken from the foster home where they were making substantial progress and from the foster parents with whom they were in the process of bonding, and thereby deprive them of the stability and permanence of their existing home”].)
As a third and final factor, courts assess the change of circumstances, and evaluate “the nature of the change, the ease by which the change could be brought about, and the reason the change was not made before bear on any such motion.” (In re Kimberly F., supra, 56 Cal.App.4th at p. 531.) The Department pointed out in its report in opposition to the section 388 petition that while Mother had shown she was eligible for the Program through the Department of Corrections, a number of factors weighed against finding her eligible through the Program itself. Among those factors were that Mother was not A.V.’s primary caretaker immediately prior to her incarceration, and before that time served as his primary caretaker only by consciously avoiding Department supervision. Mother’s parental rights had been terminated as to two other children after she failed to reunify. And it was unclear to what extent Mother had alleviated the problems which led to A.V.’s dependency, including her substance abuse.
In light of these factors, the juvenile court exercised its discretion to determine that, on the continuum, A.V.’s best interests were served by maintaining stability. Mother’s key argument is that the juvenile court should have evaluated the relevant factors in a different light, given that her reunification services had not been terminated. She relies on In re Jacob P. (2007) 157 Cal.App.4th 819, 827, where the children were in a permanent plan of legal guardianship and the trial court granted the mother’s section 388 petition to provide her with additional reunification services. At that time, the juvenile court indicated it would consider the possibility of terminating the guardianship depending on the mother’s progress. At a subsequent review hearing, the juvenile court placed one of the children with the mother under a family maintenance plan, but determined it would not be in the other child’s best interests to change his placement. (In re Jacob P., supra, at p. 828.)
On appeal, the mother argued that because she had been provided with additional reunification services, the juvenile court should have applied “the prepermanent plan presumption of return set forth in sections 366.21 and 366.22 rather than the best interest standard of section 388.” (In re Jacob P., supra, 157 Cal.App.4th at p. 828.) The appellate court analogized the juvenile court’s custody determination following the granting of the initial section 388 petition to a review hearing under section 366.3, a provision incorporating a best interests test for certain postpermanent plan decisions. (In re Jacob P., supra, at p. 829.) On the basis of that characterization, the court applied the Legislature’s preference for using a child’s best interests to make custody determinations after the 18–month benchmark, rather than the presumption applicable at earlier review hearings that a child should be returned to a parent unless there is a substantial risk of detriment. (Ibid.) In other words, the court rejected the mother’s position “that even though this case is past the 18-month mark, she should have another chance even if it is not in Jacob’s best interest to give her one, i.e., her interests should prevail over those of her child.” (Ibid.)
While the In re Jacob P. court highlighted the different considerations that are present at each stage of a dependency matter, it did not hold that a party bringing a section 388 petition at an earlier stage of the proceedings has a lesser burden to establish that the child’s best interests would be served by the proposed change. (Cf. In re Manolito L. (2001) 90 Cal.App.4th 753, 760 [preponderance of evidence standard of proof applies to a section 388 petition regardless of the type of order that is sought to be changed].) Importantly, a section 388 petition is the vehicle that can be used when other dependency statutes do not necessarily provide a remedy. (In re Jackson W. (2010) 184 Cal.App.4th 247, 258.) Thus, when a parent or other party to a dependency proceeding seeks to change an order that would typically otherwise remain in effect, section 388 appropriately requires a showing that the proposed change is in the child’s best interest. (See In re Nicholas H. (2003) 112 Cal.App.4th 251, 268 [“a finding that the parent from whom custody was removed no longer poses a risk of detriment or that the parent whose custody has been subject to supervision no longer requires supervision is relevant to, but not necessarily determinative of, the best interests of the child”].)
In any event, even if we were to evaluate the evidence presented in connection with the section 388 petition under a different standard as urged by Mother, we would still find that the juvenile court acted within its discretion to deny the petition. (See In re Jacob P., supra, 157 Cal.App.4th at p. 829 [“‘The two standards [best interest and detriment] are basically two sides of the same coin. What is in the best interests of the child is essentially the same as that which is not detrimental to the child’”].) In short, the evidence demonstrating that a change of placement was not in A.V.’s best interests likewise demonstrated that a return to Mother would have been detrimental. The evidence showed that Mother had previously failed to reunify with her two older children; she initially absconded with A.V. when he was an infant; she did not have a relationship with A.V., having not visited with him for almost one year; she had made limited progress in addressing the issues that had led to A.V.’s dependency; A.V. was thriving in his current placement; and A.V. had a strong bond with his caretakers and siblings. Under these circumstances, we find no abuse of discretion in the denial of Mother’s section 388 petition.
DISPOSITION
The order denying Mother’s section 388 petition is affirmed.
We concur: BOREN, P. J., ASHMANN-GERST, J.