Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. CK25290, Terry T. Truong, Juvenile Court Referee.
Grace E. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the Los Angeles County Counsel, James M. Owens, Assistant County Counsel and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
MANELLA, J.
Appellant D.H. (Mother) appeals the denial of a Welfare and Institutions Code section 388 petition for modification, filed on the eve of the termination of parental rights over her daughter, Desiree F. We affirm.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. Detention
Desiree, born in October 2007, came to the attention of DCFS on June 4, 2008, when detectives observed Mother and Mother’s father, Henry H., stealing mail out of residential mailboxes. Mother and Henry were arrested for burglary. As Mother was then on probation for theft, officers went to her residence to conduct a search. In the garage of the rented home she shared with her father, the officers found chemicals and other materials indicating an intent to manufacture methamphetamine. They also found a plastic bag containing a white crystalline substance that appeared to be methamphetamine. The caseworker arrived to assess the situation. Desiree had been left with Henry’s girlfriend. The girlfriend had a handgun and additional methamphetamine in her purse.
As the detention report discussed, the chemicals used to manufacture methamphetamine found in the home “could have caused an explosive reaction” and due to their presence, the home was “uninhabitable.”
The maternal grandmother reported that Mother had a long history of methamphetamine abuse. She had called law enforcement personnel and the landlord in the past because she was concerned about Desiree’s safety and possible drug use in Mother’s home. The grandmother further stated that due to Mother’s probationary status, she was likely to be incarcerated for six or more years.
The landlord was interviewed and reported that she was in the process of evicting Mother because of reports of heavy foot traffic, noise from loud parties, and the smell of smoke and narcotics emanating from the home, and also because Mother had not received permission to move her father into the home.
A review of DCFS records revealed that in 1996, Mother had had two older children removed from her custody as the result of drug abuse and failure to care for them. Mother, at that time a minor herself, failed to reunify with the children, who were adopted by their paternal grandmother. Law enforcement records showed that Mother had a lengthy criminal history, including 2001 and 2004 convictions for possession of a controlled substance, a 2004 conviction for receipt of stolen property and a 2005 conviction for theft of access cards.
Desiree was detained and placed with her maternal grandmother. A few days after the detention, the grandmother reported that she was unable to care for the child. Desiree was placed in a foster home.
Desiree was examined at a nearby hospital and found to be in good health, suffering no ill effects from her apparent exposure to dangerous chemicals.
2. Jurisdiction/Disposition
Interviewed prior to the jurisdictional hearing, Mother admitted abusing methamphetamine from the age of twelve. She said she had not used “in a while,” then stated she had been clean for four or five years, since her prior incarceration and entry into a four-month substance abuse program. Asked about the gun and the manufacturing materials found in her home, Mother said that she did not know about the gun and that the materials belonged to her father. Asked if her father was manufacturing methamphetamine, she said she “d[id]n’t think so,” but “suspect[ed]” he was “using.” She also said that her father “does a lot of construction and needed [the materials] for work.”
At the time of the jurisdictional hearing, Mother was incarcerated and it did not appear that she would be released for at least four years. Because of the expected length of her incarceration and because she had not successfully reunited with Desiree’s half-siblings in the prior dependency proceeding, DCFS recommended that she receive no reunification services, citing section 361.5, subdivisions (b)(10) and (b)(11).
Section 361.5, subdivision (b)(10) provides that reunification services need not be provided a parent if the court finds by clear and convincing evidence that “the court ordered termination of reunification services for any siblings or half siblings of the child because the parent... failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent... and that, according to the findings of the court, this parent... has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent....” Section 361.5, subdivision (b)(11) provides that reunification services need not be provided a parent if the court finds by clear and convincing evidence that “the parental rights of a parent over any sibling or half sibling of the child had been permanently severed,... and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from the parent.”
At the July 25, 2008 jurisdictional hearing, the court found the following allegations true: (1)“[Mother] has an eleven year history of illicit drug use including methamphetamine which periodically renders [Mother] incapable of providing the child with regular care and supervision. Further, the child’s siblings... received permanent placement services due to [Mother’s] substance abuse. Further, [Mother’s] substance abuse endangers the child[,] placing the child at risk of harm”; (2) “[Mother] created a detrimental and endangering home environment for the child in that [Mother’s] home possessed toxic, explosive, flammable, hazardous chemicals use[d] in the manufacture of methamphetamine... within access of the child. Methamphetamine was found in the child’s home. A handgun was found in the child’s home. The child was exposed to the toxic hazardous chemicals in the child’s home. On June 4, 2008, [Mother] was arrested for receiving stolen property. Such a detrimental and endangering home environment established for the child by [Mother] endangers the child’s health, safety and well being and places the child at risk of harm.”
At the contested dispositional hearing, held September 3, 2008, Mother testified that she recognized it was a bad decision to get involved with her father and admitted he had brought drugs into their home, which led her to “get involved with the drugs again.” Since her incarceration, she had participated in a parenting program, a family program and a 12-step program. Because the 12-step program was not made available to prisoners more than once a week, she was also reading about it in a book and attempting to follow the steps on her own. Through self-study, she believed she had progressed to the fourth step. In addition, she had obtained a sponsor, a fellow inmate. She had been told she would be eligible for a prison infant/mother program that addressed drug abuse if the court granted reunification services. She did not know when her release date would be.
The court ruled that reunification services would not be provided Mother pursuant to section 361.5, subdivision (b)(11). In issuing its ruling, the court recognized that “[Mother] is currently... trying to do what she needs in order to overcome her drug addition,” but noted that “she hasn’t been tested by being on the outside” and that “[w]hen she was out, [Mother], apparently, did complete a drug program, and that program did not get anywhere.” Additionally, there was “no indication of when [Mother] would be released,” or that given the limited reunification period allowed for the parents of infants, that she would be released in time to regain custody.
The court did not set a section 366.26 hearing or make a final disposition order until January 21, 2009, because Mother had indicated she had possible Indian ancestry and the notices required by the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) had not yet gone out. The section 366.26 hearing was originally scheduled to take place on May 21, 2009.
3. Section 366.26 Hearing and Section 388 Petition
In the May 2009 section 366.26 report, the caseworker stated that Desiree’s foster parents were committed to providing a permanent home by adopting the child. Desiree had begun to refer to the foster parents as “mama” and “dada” and had a warm and affectionate relationship with them. Since the June 2008 detention, there had been no visits with Mother, who remained incarcerated. Mother’s release date was unknown. DCFS recommended termination of parental rights and adoption by the foster parents as the permanent plan.
On May 21, 2009, the date the section 366.26 hearing was originally scheduled to take place, an alleged paternal aunt filed a section 388 petition, seeking custody of Desiree. The court ordered a June 11 hearing on the petition and continued the section 366.26 hearing to that date. The caseworker attempted to contact the aunt to inquire why she had not come forward earlier and to determine whether she had a suitable home, but the aunt did not return calls. The caseworker concluded that because Desiree had bonded with her current caregivers, the aunt’s petition should be denied in any event. The court denied the petition.
The alleged father never sought or obtained presumed father status.
At that same hearing, the court granted the foster parents de facto parent status.
The section 366.26 hearing, also scheduled for June 11, did not take place on that date because Mother filed a section 388 petition of her own. The petition stated that she had been transferred to a prison offering a program under which incarcerated mothers could live with their young children. Mother asked that Desiree be placed with her immediately or that the court grant six months of reunification services. The court set the matter for a hearing and gave DCFS an opportunity to respond to the petition.
In the report submitted in response to the petition, the caseworker pointed out that Mother had not been offered reunification services with respect to Desiree pursuant to section 361.5, subdivision (b)(11) and had not, to the caseworker’s knowledge, completed any classes or programs on her own. The caseworker contacted the Central California Women’s Facility and received a pamphlet describing the Community Prisoner Mother Program, the program described by Mother in her petition. The information provided said that eligible mothers must have five years or fewer to serve. The caseworker had been informed that Mother was serving six years. The pamphlet also stated that the mother “must not have been found by the court to be an unfit parent.” The caseworker noted that Mother had been found to be unfit with respect to her older children and that the court had implicitly found her unfit when it denied reunification services with respect to Desiree. The report concluded: “It remains in the child’s best interest to move forward with termination of parental rights and adoptive placement.”
At the July 16, 2009 hearing on the section 388 petition and on termination of parental rights, Mother testified about her understanding of the Community Prisoner Mother Program. She stated that she had been informed by a counselor that she would be assigned to the program if Desiree were released to her and that the program would be “helpful to [her] in addressing [her] substance abuse problem.” She testified that she felt a bond with Desiree because of the eight months she spent caring for the child prior to being arrested and incarcerated and that she had attempted to maintain contact with the child by sending poems and drawings. She testified that her anticipated release date was May 2013.
Denying Mother’s section 388 petition, the court ruled that “Mother has [not] shown that there has been a changed circumstance or that it would be in Desiree’s best interest for this court to order Desiree placed with [Mother]... [G]iven that [Mother] has not even been accepted into the program yet, there’s no indication that she has done anything to rectify her drug use or her drug history, which would warrant this court giving her... family reunification services.” Turning to termination of parental rights under section 366.26, the court found “by clear and convincing evidence that the child is adoptable and that it would be detrimental to Desiree to be returned to her parents” and that “no exception to adoption appl[ies] in this case.... The court cannot find that there has been sufficient regular visitation and contact with the child that the child would benefit from continuing in [the parental] relationship.” The court terminated parental rights and ordered adoption as the permanent plan.
DISCUSSION
Section 388 provides in pertinent part: “(a) Any parent... may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court... for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court... [¶]... [¶] (d) If it appears that the best interests of the child may be promoted by the proposed change of order... [or] termination of jurisdiction..., the court shall order that a hearing be held....” On appeal, Mother contends that there was “insufficient evidence” to deny her section 388 petition because the caseworker’s report was incomplete. Mother is incorrect. DCFS did not have the burden to provide a report proving that the petition should be denied. It was Mother’s burden to present evidence of changed circumstances, and she failed to meet that burden.
It is clear that a section 388 petition may be filed and heard at any time, up to and including the time of the section 366.26 hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) However, once reunification services are terminated, a presumption arises that “continued care [under the dependency system] is in the best interest of the child.” (Id. at p. 310.) At that point, the burden is on the parent to “rebut that presumption by showing that circumstances have changed that would warrant further consideration of reunification.” (Ibid.) These safeguards and procedures were put in place by the Legislature to preclude parents from “appearing at a section 366.26 hearing” and “assert[ing] a meritless claim of changed circumstances” in order to “delay permanency for [the minor].” (Id. at p. 310.) Whether to grant the petition “is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion.” (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
In order to revive the reunification issue and obtain additional reunification services through a last-minute section 388 petition, “[t]he parent must show that [] undoing [] the prior order would be in the best interests of the child. [Citation.]” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) The specific factors a court may consider in deciding whether to grant a petition for modification vary with each case; at a minimum, however, “each child’s best interests would necessarily involve eliminating the specific factors that required placement outside the parent’s home.” (In re Angel B. (2002) 97 Cal.App.4th 454, 463-464.) Among the factors the court may consider are “the seriousness of the reason for the dependency in the first place” (Kimberly F., supra, 56 Cal.App.4th at p. 530); “the strength of the existing bond between the parent and child” compared to “the strength of [the] child’s bond to his or her present caretakers, and the length of time a child has been in the dependency system in [relation] to the parental bond... ” (id. at p. 531); and “the nature of the change, the ease by which the change could be brought about, and the reason the change was not made before....” (ibid.).
Here, the reason for DCFS intervention was serious -- Mother’s long-term methamphetamine abuse. After more than a year in foster care, Desiree, an infant at the time of detention, had bonded strongly with her prospective adoptive parents and considered them her mother and father. During that period, she had no visitation with Mother, and there was no evidence she felt a bond with Mother. Mother did not demonstrate in her petition or in the evidence presented that she had overcome the drug problem that led to the detention of Desiree and the termination of parental rights over the two older children. Instead, she asked for the resumption of reunification services so that she could be allowed into a prisoner program where she could begin to deal with the problem. The court’s decision to deny her section 388 petition for modification, did not, therefore, represent an abuse of discretion.
Mother contends that the court should have demanded a more thorough report from the caseworker before resolving the modification issue, contending that “[t]he social services agency has a duty to apprise the court of all relevant facts and circumstances when issuing reports.” It is true that caseworker reports are the “cornerstone[s] of the evidentiary structure” upon which the court’s decisions are made” (In re Crystal J. (1993) 12 Cal.App.4th 407, 413) and that deficiencies in a required report “go to the weight of the evidence, and if sufficiently egregious may impair the basis of a court’s decision....” (Id. at p. 413.) The report at issue in Crystal J. was statutorily mandated and failed to discuss topics required by the Legislature to be addressed at a specific stage of the dependency proceeding. (See 12 Cal.App.4th at p. 411 [report mandated by section 366.21, subdivision (i) must address “six specific subjects, including... search efforts for absent parent, the minor’s current contact with parents, an evaluation of the minor’s medical and developmental status, whether the minor will be adopted, etc.”]; see also In re Valerie A. (2007) 152 Cal.App.4th 987, 1012-1013 [“As we have discussed, the social worker is required by statute to assess the sibling relationship, report to the court and make permanency plan recommendations.”].) Here, however, the report was not required by statute, but was requested by the court pursuant to its discretionary power. (See § 365 [“The court may require the social worker or any other agency to render any periodic reports concerning children committed to its care, custody, and control under the provisions of Section 362 that the court deems necessary or desirable.”].) Whether the report adequately dealt with the issues raised in the section 388 petition was a matter for the court’s determination. Moreover, the information Mother contends the caseworker omitted -- Mother’s release date, Mother’s eligibility for the program, the nature of the services offered by the program, and when Desiree could join Mother in the program -- were either provided at the hearing or would not have assisted the court in deciding the pertinent issue: whether Mother had presented evidence indicating that Desiree’s best interest lay in being taken from her prospective adoptive parents and returned to her biological mother.
Mother’s reliance on In re S.R. (2009) 173 Cal.App.4th 864 is misplaced. That case did not deal with an inadequate report, but with a juvenile court ruling vacating an order for a bonding study which all parties agreed was in the best interests of the minors, solely because of the difficulty of finding a Spanish-speaking psychologist qualified to perform the study.
DISPOSITION
The July 16, 2009 order denying the section 388 petition is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.