Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. JD223696, JD223697, JD228509.
RAYE, J.
The juvenile court summarily denied the petitions of Sabrina M. (the mother) seeking modification of the dispositional order that denied reunification services to her in these three matters. (Welf. & Inst. Code, §§ 361.5, subds. (b)(13) & (c), 388.) She appeals, contending this was a violation of her right to due process. (§ 395.) She also argues the referee erred in failing to immediately schedule a hearing on a motion to withdraw filed but later abandoned by her retained counsel. We shall affirm the orders.
As the given names of the minors and their parents are among the 1,000 most popular birth names during the last nine years, we will not designate them by initials, in order to reduce confusion and improve readability. (In re Branden O. (2009) 174 Cal.App.4th 637, 639, fn. 2; In re Edward S. (2009) 173 Cal.App.4th 387, 392, fn. 1; Cal. Rules of Court, rule 8.400(b)(2).)
All further statutory references are to the Welfare and Institutions Code.
BACKGROUND
A
In January 2006 the Sacramento County Department of Health and Human Services (DHHS) filed petitions alleging the failure of mother and Francis C. (the father) to protect minors Elijah C. (born in 2004; case No. JD223696) and Emiliano C. (born in 1997; case No. JD223697) and sibling abuse (§ 300, subds. (b) & (j)), based on the following facts. The police had conducted a traffic stop of mother and father’s car, in which the minors were passengers. The police found various controlled substances in the car and on the mother’s person, as well as indicia of sales. The police arrested both parents, though the mother was later released from custody.
The parents admitted in the social study that they used marijuana regularly, and that the father had been selling drugs because their family needed the money. Both proclaimed their willingness to change their lifestyle and give up any involvement with drugs.
The parents admitted the allegations. The court assumed jurisdiction over the minors and placed them in the home of the father’s sister and her husband. It ordered reunification services, with a focus on treatment for substance abuse, and visitation with the minors. The court subsequently granted the mother’s motion to transfer the placement of the minors back to the parents. At the six-month review hearing (§ 366.21, subd. (e)), the court continued jurisdiction and the provision of services, noting the parents had been cooperative and making progress but were still in the early stages of recovery and were anticipating the birth of another child. In December 2006 DHHS petitioned the court to terminate jurisdiction over the minors. The petition alleged that the parents had successfully completed services and had not tested positive for illegal substances for months. The court granted the petition in January 2007 and dismissed the cases.
B
In October 2008 DHHS filed new petitions in case numbers JD223696 and JD223697, and in case number JD228509 sought to establish the court’s jurisdiction over Elias C., who was born in 2006. The petitions once again asserted a failure to protect, as well as a failure to provide for support during the parents’ incarceration. (§ 300, subds. (b) & (g).) The petition alleged that during a search of the parents’ home, a narcotics team had found five ounces of marijuana and a pipe; furthermore, the parents admitted smoking marijuana (the father on an “almost daily” basis). It asserted that the parents had failed to rehabilitate their problems with substance abuse dating back to at least 2006, and both parents were presently in jail. The court again detained the minors in the home of the paternal aunt and uncle. (§ 315.)
The social study for the jurisdiction/disposition hearing (§§ 355, subd. (b), 358, subd. (b)) reported that confidential informants had repeatedly purchased controlled substances from the father from April 2008 through October 2008 at locations near the home. Narcotics agents ultimately arrested the father and searched the home. In addition to marijuana, agents found $500 in cash and a scale. In their post arrest statements, the mother admitted smoking marijuana when the children were not around. She disclaimed knowledge of marijuana found in a cookie jar on the kitchen counter. The father admitted that he was selling marijuana, as he was unemployed and had been without a full-time job for over three years.
Emiliano was aware that his father’s drug sales were the cause of the search; four-year-old Elijah knew only that the police had come searching for money. Emiliano continued to visit his parents in jail weekly with his aunt, but the younger children at present did not want to go.
The mother disputed that the marijuana was anywhere that the minors could have found it. She denied leaving the children without supervision, because she had directed that they be taken to the paternal relatives. Regarding her history of substance abuse, she began drinking alcohol at the age of 14 (she was almost 27 at the time of the interview) but now restricted her use to special occasions. She had also briefly used methamphetamine from ages 13 to 14. She started smoking marijuana at 12, and presently smoked it on the advice of her doctor to stimulate her appetite to help with a thyroid problem. She believed she could stop smoking marijuana if necessary. She conceded that the father might have a problem with substance abuse but denied being aware that he was selling drugs. She denied any criminal culpability for the marijuana or the sales. The father stated that they both used marijuana only to relax from the stress of parenthood (admitting he smoked it on a daily basis) and did not think he or the mother had a problem with substance abuse, nor did he think their marijuana use put the minors at risk.
In its assessment, the social study stated that the parents had previously received services for substance abuse. As they were back before the juvenile court under the same circumstances of drug use and sales around the minors, there were no further services that DHHS could provide that it had not previously provided, and it was not in the interests of the minors to be reunified with the parents. The children were bonded with the parents, however, and Emiliano did not want to be adopted. Therefore, the report recommended denial of reunification services and a guardianship with the paternal relatives, with whom the minors enjoyed staying. This accorded with the wishes of the mother if the juvenile court did not return the children to her.
The parties submitted the matter on the social study, and the juvenile court sustained the jurisdictional allegations. In anticipation of the contested dispositional hearing, the mother continued to seek an order for reunification services (taking classes on her own volition for parenting and substance abuse while in jail). Counsel for the minors, however, opposed an order for services because they had not been effective in the past.
In a footnote, the mother disputes the sufficiency of the evidence to sustain the allegation of abandonment. (§ 300, subd. (g).) This challenge not only comes too late, as she did not seek review of the dispositional order (In re Elizabeth G. (1988) 205 Cal.App.3d 1327, 1333), but is raised in an improper “lurking” fashion without separate heading, which also forfeits our consideration of it (Imagistics Internat., Inc. v. Department of General Services (2007) 150 Cal.App.4th 581, 593, fn. 10).
In a supplemental study, DHHS discussed the status of the pending criminal cases against the parents. The prosecutor stated that both had rejected plea offers and intended to go to trial. The father was facing a lengthy prison term, and the mother was likely to receive either some time in prison or an extended jail term, in either event exceeding six months. DHHS also asked the court to take judicial notice of the previous criminal convictions of the parents.
At the January 2009 disposition hearing, the court granted the request for judicial notice. As earlier noted, it denied reunification services, finding the parents’ abuse of controlled substances was chronic and resistant to treatment. It also found that reunification (in light of the parents’ incarceration and their lack of progress in addressing the causes necessitating placement) would be detrimental to the minors, and there was not a substantial probability that they could be returned to the parents’ care within the next six months. It set the matter for a May 2009 permanency planning hearing. (§ 361.5, subd. (f).)
Although the mother suggests that the court erred in making this finding because her circumstances do not come within the purposes of the “bypass” provisions, this tangential challenge again is not cognizable in the present appeal and does not require our response. (Fn. 3, ante.) The same is true of the suggestion that the termination of jurisdiction in 2007 was erroneous.
C
This brings us to the subject of the present appeal. In April 2009 the mother filed her petitions to modify the order denying services. She asserted that after her release from custody in February 2009, she had been visiting the children daily, had been “actively engaged in services on her own in order to reunite,” and believed it was in the best interests of the minors because they were bonded with the mother, wished to remain in a sibling group, and Emiliano was adamant about not being adopted. She appended four negative drug tests for the month of March, proof of her attendance at addiction group meetings in March and April, and proof of her completion of parenting classes over the previous several months. The court denied the petitions without a hearing two days later, noting the absence of new evidence or a showing that a modification would be in the best interests of the minors. As the court wrote on one of the petitions, “the mother was bypassed for services due to an extensive substance abuse history. A few clean drug tests is insufficient.”
The mother had told a social worker that she was released from jail and was not facing charges because it was the father who committed any crime.
She was staying with the paternal grandfather, who provided day care while the proposed guardians were at work.
The court reiterated this conclusion at the permanency planning hearing in May 2009, noting that her incarceration was not the only reason it had denied services.
On the same day the court denied the mother’s modification petition, her retained attorney filed a motion to withdraw, to be heard on the same date as the permanency planning hearing. Counsel asserted only that she had “a legal conflict and can no longer represent Sabrina [M.]” Counsel requested that the court reappoint previously appointed counsel.
At the May 2009 hearing, counsel declared that after doing some research, “I’m going to withdraw the motion because I don’t feel that the conflict I have is going to rise to the level of being satisfactory to the Court. [¶] So I don’t want to say anything that’s going to prejudice my client, and so I’m going to withdraw that motion at this time.” The court accepted the withdrawal. The mother did not object to the withdrawal of the motion, or otherwise express any dissatisfaction with counsel. The mother’s attorney submitted additional documentation of the mother’s progress with addiction and parenting classes, and simply asserted that the mother wanted the minors returned to her because “she has done services” and “feels as though she is not being charged with anything criminally in this case.” The juvenile court then selected guardianship as the permanent plan, allowing visitation with the parents and retaining jurisdiction.
At the hearing, the mother’s attorney apparently provided the juvenile court with a copy of her office’s written policy for motions to withdraw as counsel, which gave four examples of actual legal conflicts: where clients question her good faith; where clients insist on pursuing frivolous claims for purposes of harassment; where clients intend to commit perjury; and where she has another client with conflicting interests.
In her notice of appeal, the mother specified the denial of her modification petitions without a hearing. She did not make any reference to the guardianship hearing or order.
DISCUSSION
I
A parent is entitled to a hearing on a petition to modify a prior order only where the facts alleged, if credited, establish a colorable basis for the requested relief. (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.) This requires the parent to allege facts sufficient to establish a change of circumstances or new evidence, and to establish that the proposed modification would be in the minor’s best interests. (Ibid.) We review the court’s ruling for an abuse of discretion on the facts as alleged. (Ibid.)
The mother suggests that we should instead independently review the facts alleged in her petitions to determine if she has established a colorable claim for relief. Neither case she cites supports this proposition. In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799 involved a juvenile court that applied too high a level of proof in denying a petition without a hearing (which necessarily establishes an abuse of discretion). In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1414, 1416 is similar, further noting that the discretion accorded a juvenile court to deny a hearing must be exercised within the narrow standards for a prima facie case, as a matter of due process. This is the mechanism for protecting the mother’s right to due process, rather than (as she asserts in a second argument) an independent review on appeal. Finally, her sketchy attempt to analogize to the standard of review for a ruling on a motion for summary judgment fails; the procedures are too inapposite. We thus adhere to a review for abuse of discretion.
On the merits, she contends a changed circumstance was her release from jail and the (alleged) dismissal of the criminal charges, which allowed her to have daily visitations with the minors. She also argues that in the context of the impending guardianship with paternal relatives, continuing her reunification services would not have deprived the minors of permanency because she would in any event be having frequent contact with them (“it appear[ing] she will eventually be reuniting with her children”), and they had a positive bond with her. Finally, she emphasizes the evidence that she was abstaining from the use of drugs.
Her release from jail and possible avoidance of criminal consequences is not a material new circumstance. The juvenile court expressly stated her incarceration was not the sole basis for its previous denial of services. Rather, the court was more concerned with her relapse despite her previous successful completion of services.
At the time the juvenile court initially refused to order reunification services to the mother, it had concluded that the mother’s success in making use of the services in the earlier dependency obviously did not have any long-term impact on her behavior, because the minors were once again in an environment in which drug use and drug sales were prevalent. Therefore, as the court concluded in denying her petition without a hearing, proof that she was having success in refraining from the use of drugs in the brief time since her release from jail was not new evidence of changed circumstances such that it should order reunification services, as the court had been down this route with the mother before. With a history of addiction issues, even a seven-month period of abstention is insufficient evidence to establish the changed circumstance of successfully turning over a new leaf. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 423-424; In re Casey D. (1999) 70 Cal.App.4th 38, 47-49 (Casey D.); see In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9 [must be much longer than 120 days “to show real reform”].)
Furthermore, at this point the focus in evaluating the best interests of the minors was permanency and stability. (In re Amber M. (2002) 103 Cal.App.4th 681, 685-686.) A petition establishing only evolving circumstances, resulting in the delay of the selection of a permanent home while awaiting the parent’s demonstration of an ability “to reunify at some future point, does not promote stability for the child or the child’s best interests.” (Casey D., supra, 70 Cal.App.4th at p. 47.) As a result, it was not an abuse of discretion for the juvenile court to conclude the mother’s present success was not any guarantee that she could continue to provide a drug-free environment for the minors (especially given the lack of insight she expressed about the effects of her drug use on them), and thus it would not be in their best interests to subject them to the risk of instability should she fail once again to avoid the use of drugs. The mother is consequently incorrect that ordering the resumption of reunification services would not interfere with a permanent and stable environment at the home of the guardians, with whom the minors are bonded. Nor does the record support her belief in the apparent inevitability of regaining custody of the minors if she had the benefit of services, merely because that is the hope of the guardians.
While she adverts to DHHS’s allowing her to live in the home of the relatives providing day care while the guardians work, this is not of any significance. It is these other relatives who have control over the minors’ environment and can keep it free of the consequences of drug use and sales.
As we find that the mother did not adequately allege a colorable entitlement to relief, we do not need to consider her argument that she was deprived of her right to due process or her claim that the failure of DHHS to respond to this argument concedes its merit. We also do not need to consider her analysis of prejudice, or her reference to a decade-old expression of pique on the part of this court regarding a “trend” among Sacramento County juvenile court referees of denying hearings on modification petitions. (In re Daijah T. (2000) 83 Cal.App.4th 666, 675-676.)
II
The mother asserts that the juvenile court erred in failing immediately to set a hearing on her attorney’s motion to withdraw, rather than allowing the attorney to set the date for the permanency planning hearing. The mother argues, ipse dixit: “Clearly, this duty was mandatory for the [juvenile] court, since [counsel] declared she could no longer represent [the mother] because of a ‘legal conflict’....” She contends that her interests went unrepresented during the interval before counsel withdrew the motion to withdraw. While she acknowledges that counsel cannot unilaterally abandon a client without court approval (In re Ronald R. (1995) 37 Cal.App.4th 1186, 1193-1194; § 317, subd. (d)), she speculates that counsel did not do anything to help her affirmatively during this time, such as file yet another petition pursuant to section 388 updating her progress in seeking services on her own volition. In attempting to avoid the principle of forfeiture because she acquiesced in the withdrawal of her retained counsel’s motion to be relieved and did not otherwise voice a complaint about her representation or seek a replacement attorney, she abjures any suggestion that her trial attorney was ineffective (for failing either to file a renewed petition or otherwise) and focuses on the purported duty of the juvenile court to hold a hearing.
For this reason, we need not respond to DHHS’s remarks as to whether ineffective assistance of counsel can be an issue in dependency cases.
The mother does not at any point explain how these later events are cognizable in an appeal from the earlier denial of her petitions to modify. Even giving the most liberal construction to her notice of appeal, we cannot find the remotest indication of an intent to appeal the May 2009 order establishing guardianship as the permanent plan.
Even if the issue were properly before us, the mother does not explain why we should not apply the principle of forfeiture, regardless of whether her appellate focus is on the speculative failings of her trial attorney or the juvenile court’s failure to order a hearing pursuant to an inchoate duty (for which the mother does not present any authority). Nor, for that matter, could the mother possibly establish prejudice from any possible procedural misstep. The mother does not identify anything that new counsel could have done for her at this point, other than file a subsequent petition to modify. However, there was nothing new to bring before the court other than her continued progress in self-enrolled services for an additional month. For the same reasons explained previously, this was a manifestly inadequate showing of changed circumstances or of any benefit to the minors in awaiting their mother’s rehabilitation.
DISPOSITION
The orders denying the petition to modify are affirmed.
We concur: BLEASE, Acting P. J. BUTZ, J.