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In re Jasmine M.

California Court of Appeals, Second District, Fourth Division
Feb 1, 2011
No. B225292 (Cal. Ct. App. Feb. 1, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. CK75825. Marilyn Martinez, Commissioner.

William Hook, under appointment by the Court of Appeal, for Defendant and Appellant.

Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County County, Sarah Vesecky, Deputy County Counsel for Plaintiff and Respondent.


MANELLA, J.

Appellant C.O. (Mother) appeals the juvenile court’s summary denial of her petition under Welfare and Institutions Code section 388 in which she sought modification of the court’s dispositional order denying reunification services. We affirm the court’s order.

Statutory references are to the Welfare and Institutions Code.

FACTUAL AND PROCEDURAL BACKGROUND

Jasmine M. was born in June 2009. The family had first come to the attention of the Department of Children and Family Services (DCFS) six months earlier, in December 2008, when Mother and Ignacio M. (Father) were living a transient lifestyle with their daughter Melissa M. Father admitted using methamphetamines and marijuana. The court found jurisdiction appropriate and Mother and Father received reunification services, including referrals to substance abuse programs and random drug testing, from February 2009 to August 2009. Services were terminated due to parental noncompliance, and Melissa was placed with her paternal grandmother. Mother and Father were permitted monitored visitation only.

Mother said she would likely test positive for marijuana, but only because she had been in the presence of Father. Father is not a party to this appeal.

Mother and Father missed all the drug tests scheduled between January and July 2009.

In June 2009, DCFS received a report that Melissa was being neglected by her caretaker (the paternal grandmother). When the caseworker arrived at the grandmother’s residence to investigate, she found Mother and Father attempting to hide. With them was newborn Jasmine. Father denied using drugs, but was very belligerent. Mother was behaving oddly, moving “like a zombie” and refusing to communicate at all. The caseworker detained both Melissa and Jasmine.

The caseworker expressed concern that Mother had mental health issues, but there were no subsequent findings or evidence to substantiate that theory.

The girls were subsequently returned to their paternal grandmother.

At the July 2009 detention hearing, the court ordered DCFS to provide Mother and Father referrals for low-cost or no-cost services. In the August jurisdiction/disposition report, the caseworker reported that she had provided referral resources for drug counseling, drug testing, parenting classes, mental health services and individual counseling. Mother and Father reported that they had made intake appointments at drug treatment facilities.

Between the detention and jurisdictional hearings, Mother and Father drug tested once. Mother’s was negative; Father’s was positive for cannabinoids.

Father enrolled in a program on July 20.

At the August 4 jurisdictional hearing, the court found that Mother had used illicit drugs during her pregnancy with Jasmine, had a history of substance abuse, and was a current user of marijuana. It further found that a sibling of Jasmine’s (Melissa) had been found to be a dependent of the Juvenile Court due to Mother’s illicit drug use, and that Mother had failed to participate in a court-ordered substance abuse rehabilitation programs and drug testing. DCFS recommended no reunification services for either parent. The court put the matter over for a contested dispositional hearing.

Mother was not present at the hearing. She had reported to her counsel that she was having transportation problems and asked that the hearing be continued. The court denied the request.

With respect to Father, the court similarly found that he had a history of illicit drug use and was a current user of illicit drugs, including marijuana, and that he had previously failed to participate in a court-ordered substance abuse rehabilitation program and drug testing.

DCFS filed a separate disposition report which stated that Mother had made no effort to reunify with Jasmine and had not contacted DCFS from July to October 2009. At the October 2009 hearing, the court ordered no reunification services for Mother pursuant to section 361.5, subdivision (b)(10). Reunification services were ordered for Father.

Section 361.5 permits -- and sometimes requires -- the court to deny parents reunification services under certain circumstances. Subdivision (b)(10) applies where, in a prior proceeding, reunification services were terminated with respect to a sibling or half-sibling of the child because the parent failed to reunify with the sibling or half-sibling, and the court finds the 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....”

In the April 2010 status report, the caseworker stated that Mother had enrolled in a drug abuse treatment program in January. The caseworker contacted Mother’s counselor, who said Mother was making good progress and that she was also enrolled in parenting education and counseling to address anger management, domestic violence and self-esteem issues. Mother was testing regularly and all tests had been negative. The caseworker further reported that Mother had begun regular visits with Jasmine, but that Jasmine did not appear to know who she was, and that the girl was bonded to her caregiver, the paternal grandmother.

At that time, the only issue on calendar was whether to terminate or continue Father’s reunification services. Father had not completed the program because he had been incarcerated in February. The hearing to resolve whether Father would receive continued services was continued to April 26. The parties appeared in court on that date, but the hearing was continued again because DCFS had failed to file a timely removal order.

On April 23, 2010, Mother filed a petition for modification, requesting that the court grant reunification services. Mother presented letters from her counselor at the drug treatment facility, stating that Mother had been attending the program regularly since January 20, 2010, was in phase two of the program, and had been appointed “Resident Council” in recognition of becoming a role model for her peers. In addition, she was in counseling to address the issues that led her to abuse drugs and make other poor choices, and she had attended eight out of 12 required parenting classes. Mother also had undergone regular drug testing since entering the facility and all her tests had been negative. The court summarily denied the request. In so doing, the court referred to Mother’s “long history of substance abuse” and stated: “Mother is at [the] beginning of compliance with [the] program. Circumstances are changing -- not changed....” Mother appeals, contending that the court abused its discretion.

Respondent contends Mother forfeited her right to challenge the court’s order because on April 26, 2010, at the continued hearing called to consider termination of Father’s reunification services, the court stated it was “not inclined” to grant the petition and Mother’s counsel “did not object, did not request to be heard regarding the juvenile court’s tentative ruling, and did not request an evidentiary hearing.” The filing of a section 388 petition signifies to the court that a hearing is requested. (See § 388, subd. (a).) The petition is summarily denied when the court checks the appropriate box or boxes on the pre-printed form, which state, among other things, that the request “does not state new evidence or a change of circumstances” or “[t]he proposed change of order... does not promote the best interest of the child.” (See In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413.) In the instant case, the court checked the appropriate boxes necessary to summarily deny the petition and, as a courtesy, informed the parties of its decision at a hearing called for another purpose. This did not represent an opportunity for Mother’s counsel to argue the petition, and no issue connected to the petition was forfeited by his failure to do so.

DISCUSSION

Section 388 permits ‘[a]ny parent or other person having an interest in a child who is a dependent child of the juvenile court’ to petition ‘for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court’ on grounds of ‘change of circumstance or new evidence.’ (§ 388, subd. (a).) ‘If it appears that the best interests of the child may be promoted by the proposed change of order, ... the court shall order that a hearing be held and shall give prior notice....’ (Id., subd. (c).) Section 388 thus gives the court two choices: (1) summarily deny the petition or (2) hold a hearing. [Citations.]” (In re Lesly G. (2008) 162 Cal.App.4th 904, 912.) “‘[I]f the petition fails to state a change of circumstances or new evidence that might require a change of order, the court may deny the application ex parte. [Citation.]’” (Ibid., quoting In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450.)

“A petition for modification must be liberally construed in favor of its sufficiency.” (Cal. Rules of Court, rule 5.570(a).) “In order to avoid summary denial, the petitioner must make a ‘prima facie’ showing of ‘facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited.’” (In re Lesly G., supra, 162 Cal.App.4th at p. 912, quoting In re Edward H. (1996) 43 Cal.App.4th 584, 593.) “‘There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and... (2) [that] revoking the previous order would be in the best interests of the [child]. [Citation.] If the liberally construed allegations of the petition do not show changed circumstances such that the child’s best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. [Citation.]’” (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079, quoting In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)

“The requirement of petitioning the court for a hearing pursuant to section 388 to show changed circumstances must be viewed in the context of the dependency proceedings as a whole.” (In re Marilyn H. (1993) 5 Cal.4th 295, 307.) “Although a parent’s interest in the care, custody and companionship of a child is a liberty interest that may not be interfered with in the absence of a compelling state interest, the welfare of a child is a compelling state interest that a state has not only a right, but a duty, to protect.... The state’s interest requires the court to concentrate its efforts, once reunification services have been terminated, on the child’s placement and well-being, rather than on a parent’s challenge to a custody order.” (Ibid.) After termination, the focus shifts from the rights of the parents to “the needs of the child for permanency and stability....” (Id. at p. 309.)

In order to obtain modification after reunification services have been terminated or the court has issued a no-services order, “[i]t is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child. [Citation.]” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529, italics omitted.) The fact that the parent “makes relatively last-minute (albeit genuine) changes” does not automatically tip the scale in the parent’s favor. (Id. at p. 530.) Instead, “a number of factors should be examined.” (Ibid.) First, the juvenile courts should consider “the seriousness of the reason for the dependency in the first place, ” as “[n]ot all reasons for initial dependency jurisdiction are equal from the point of view of a child’s interests.” (Ibid.) “A second important factor which is inherent in the statutes is the strength of the existing bond between the parent and child....” (Id. at p. 531.) 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....” (Ibid.) An appellate court reviews the juvenile court’s summary denial of a section 388 petition for abuse of discretion. (In re C.J.W., supra, 157 Cal.App.4th at p. 1079.)

Here, the court found that Mother had a serious substance abuse problem which rendered her incapable of providing care for her children. Where a child is as young as Jasmine, the Legislature expects significant progress within six months. (§ 366.21, subd. (e) [court may terminate reunification process in six months where children are under three years old].) Although the court did not formally grant reunification to Mother, it ordered DCFS to provide referrals for programs to Mother at the July 2009 detention hearing, and it appears that Mother contacted one of the recommended substance abuse programs. However, Mother did not enroll in that program and did nothing to begin to correct her substance abuse problem until almost six months after Jasmine’s detention -- more than a year after she lost custody of Melissa due to the same issues. Mother gave no explanation for the lengthy delay. By that time, Jasmine had bonded with her paternal grandmother, who was in the process of adopting Melissa. Due to the girl’s young age and Mother’s initial failure to visit, Jasmine had formed no significant bond with Mother. Under these circumstances, the court did not abuse its discretion by refusing to extend the reunification period to permit Mother an opportunity to prove her ability to correct the issues that had caused her children to be detained.

DISPOSITION

The order is affirmed.

We concur: EPSTEIN, P. J., WILLHITE, J.


Summaries of

In re Jasmine M.

California Court of Appeals, Second District, Fourth Division
Feb 1, 2011
No. B225292 (Cal. Ct. App. Feb. 1, 2011)
Case details for

In re Jasmine M.

Case Details

Full title:In re JASMINE M., A Person Coming Under the Juvenile Court Law. LOS…

Court:California Court of Appeals, Second District, Fourth Division

Date published: Feb 1, 2011

Citations

No. B225292 (Cal. Ct. App. Feb. 1, 2011)