Opinion
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County, David S. Milton, Judge. Los Angeles County Super. Ct. No. CK39671
Donna Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant.
M. Elizabeth Handy, under appointment by the Court of Appeal, for J. T.
Raymond G. Fortner, Jr., County Counsel, and Liana Serobian, Deputy County Counsel, for Plaintiff and Respondent.
PERLUSS, P. J.
V.T. and her son, J.T., appeal from the juvenile court’s orders denying V.T.’s petition for modification pursuant to Welfare and Institutions Code section 388 and terminating her parental rights (§ 366.26). We reverse and remand the matter for a new section 388 hearing.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. J.T’s Detention and the Dependency Petition
J.T. was detained following his birth in June 2006 after a hospital social worker reported V.T. had admitted using crack cocaine during her first month of pregnancy but before she knew she was pregnant. The Los Angeles County Department of Children and Family Services (Department) filed a petition to declare J.T. a dependent of the juvenile court under section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling), alleging V.T. had an eight-year history of drug abuse; had used drugs while pregnant with J.T.; and had failed to reunify with her three other children, A.M., C.M. and M.T., who had previously been declared dependent children of the court as a result of V.T.’s chronic use of cocaine. (C.M. and M.T. were born with positive toxicology screens for cocaine.) M.T. was adopted after V.T.’s parental rights were terminated, and A.M. and C.M were placed in a legal guardianship with their paternal grandmother.
The detention report and attached laboratory results indicate V.T. had tested positive for phenothiazine metabolites the day before J.T.’s birth, which hospital staff explained was due to medication administered to V.T. on that day. Nevertheless, citing to its jurisdiction and disposition report dated July 25, 2006, the Department argues V.T. tested positive for cocaine the day before J.T.’s birth. The jurisdiction/disposition report, however, does not support the Department’s assertion; it also states “mother tested positive for Phenothiazine Metabolites” the day before J.T’s. birth. Additionally, a report from the hospital states the toxicology screens for V.T. and J.T. were negative.
At the detention hearing on June 26, 2006 V.T. denied admitting she had used cocaine during her first month of pregnancy. The juvenile court ordered J.T. detained in shelter care and granted V.T. monitored visitation.
J.T.’s alleged father, whose whereabouts were unknown, did not appear at any of the dependency hearings.
2. The Juvenile Court’s Denial of Reunification Services for V.T. and J.T.
In its jurisdiction and disposition report dated July 25, 2006 the Department stated that, according to V.T., she had begun a 90-day course to become a loan broker and was in the process of purchasing a home and that J.T.’s foster mother had reported V.T. was visiting J.T. for two hours twice a week. Notwithstanding the Department’s observation “Mother appears motivated to seek treatment and reunify with her child,” the Department recommended no reunification services be provided because of J.T.’s age and V.T.’s history, including her failure to reunify with her other children or to complete drug treatment ordered in connection with those dependency proceedings.
At the August 16, 2006 contested jurisdiction and disposition hearing, V.T. testified she had last used illegal drugs two years earlier, after she had completed a jail term relating to a 2004 arrest for possession of cocaine; was completing a drug diversion program in connection with that incident; had voluntarily enrolled in an outpatient drug treatment program, including drug testing, and a parenting class; was preapproved to purchase a home; had begun a new job as a real estate agent; and was in the process of completing the course to become a loan broker. V.T. frequently talked to her children, A.M. and C.M., and was very involved in their lives. Counsel for J.T., who was also appointed his guardian ad litem, joined with V.T. in requesting reunification services, stating, “[V.T.] has been visiting consistently. She is willing now to participate in a drug treatment program, and this seems to be a big change in regards to her history when she did lose the siblings to a permanent plan.”
The juvenile court found V.T. had used cocaine during the initial stage of her pregnancy, although perhaps not knowing she was pregnant, and sustained the dependency petition. The court ordered no reunification services pursuant to section 361.5, subdivisions (b)(10) (no reasonable effort to treat problems that led to removal of siblings with whom parent failed to reunify) and (b)(13) (chronic use of drugs or alcohol and resistance to court-ordered treatment) and set the matter for a permanency planning hearing pursuant to section 366.26 on January 16, 2007. Despite its denial of reunification services, the court directed the Department to provide V.T. with referrals for drug counseling and ordered her to submit to random weekly drug testing. The court also encouraged V.T. to file a section 388 petition for modification: “The court sustains the allegations and believes pursuant to the law, although I would desire to provide family reunification services for the mother, that the law dictates this court shall not under these circumstances. However, I want to encourage this mother to participate in those programs during the next six months and file a 388 at the appropriate time. And I want a well-written 388 that outlines what you’ve done between now and then, including your employment, your certifications, and so forth, and the court may grant that 388.”
The court, of course, did have the discretion to order reunification services for V.T. if it had found, by clear and convincing evidence, reunification services were in the best interest of J.T. (§ 361.5, subd. (c), 2d par.)
3. The Court’s Implied Denial of V.T.’s Section 388 Petition and Termination of Her Parental Rights
In its section 366.26 report the Department recommended V.T.’s parental rights be terminated and J.T. be adopted by his foster caregivers. At the initial section 366.26 hearing on January 16, 2007, after V.T.’s counsel stated he would be filing a section 388 petition based on V.T.’s progress, which he characterized as “one of the most dramatic turnarounds . . . that I ever witnessed amongst my parent clients,” the court set the matter for a hearing on the section 388 petition as well as for a contested hearing pursuant to section 366.26.
J.T. was placed with the prospective adoptive foster caregivers on July 31, 2006, after he had fallen from a shopping cart while in the care of a previous foster caregiver.
On January 17, 2007 V.T. filed a section 388 petition seeking six months of reunification services and increased visitation with J.T. The petition averred V.T. had successfully completed an intensive outpatient drug rehabilitation program; was in an after-care program; had tested negative for drugs; was gainfully employed; and was regularly visiting J.T. for one hour per week. V.T. asserted she was “dedicated to providing a stable loving home environment for her child who will benefit from being able to know his extended family as well.” Attached to the petition was a letter from A.M. and C.M.’s paternal grandmother, dated August 11, 2006, which stated V.T. was an attentive mother and A.M and C.M’s “success in school and positive personalities is [sic] because they’re loved and have the support of the entire family which includes their mom.” Counsel and guardian ad litem for J.T. supported granting the petition, contending J.T. would benefit from being returned to his natural mother and knowing his extended natural family (that is, his siblings who were placed with their paternal grandmother); however, the Department continued to recommend termination of parental rights.
V.T. tested negative for drugs in random tests from July 10, 2006 through January 10, 2007 except on October 17, 2006 when she tested positive for opiates and hydrocodone after receiving vicodin and amoxicillin from her dentist in connection with the removal of three wisdom teeth. V.T. failed to test on December 18, 2006 because she had forgotten to telephone the testing hotline and on January 16, 2007 because she was at court for the entire day.
Although V.T. had been visiting with J.T. for two hours two times a week, after J.T. was placed with the new foster caregivers on July 31, 2006, V.T.’s visitation was limited to one hour per week.
Initial counsel and guardian ad litem for J.T. was replaced at the January 16, 2007 hearing.
At the February 14, 2007 hearing the juvenile court was “quite impressed with [V.T.’s] change of circumstances,” noting “[t]he more difficult prong is the benefit to the child.” However, an issue arose concerning a possible outstanding arrest warrant for V.T.: An unidentified person had telephoned the Department, stating V.T. was an unfit mother, was still using drugs and had an outstanding arrest warrant for possession and sale of drugs in Santa Clarita. The records available to the court indicated V.T. had last been arrested on February 24, 2006 in Norwalk for possession of dangerous drugs and there was an outstanding warrant relating to that incident. V.T. asserted she had no knowledge of an outstanding warrant in Norwalk, explaining she had been arrested in Banning on the relevant date for driving without a license, but was transferred to Los Angeles County and released.
The court asked its bailiff to investigate the status of the warrant, stating, “This court would not be comfortable ruling on the best interest without finding the status of that warrant.” The bailiff reported there was a felony warrant outstanding in Santa Clarita. At that point, without ruling on V.T.’s section 388 petition, the court proceeded to the section 366.26 hearing and terminated V.T.’s parental rights, finding the section 366.26 subdivision (c)(1)(A) exception to termination was inapplicable because there was no existing parent-child bond between J.T. and V.T. Although the court made no express findings at the hearing on the section 388 petition, the minute order prepared by the clerk indicates the petition was denied because the best interest of J.T. would not be promoted by the proposed change of order.
DISCUSSION
1. Standard of Review
Section 388 provides for modification of prior juvenile court orders when the moving party presents new evidence or a change of circumstances and demonstrates modification of the previous order is in the child’s best interest. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Jasmon O. (1994) 8 Cal.4th 398, 415; Cal. Rules of Court, rule 5.570(e).) The modification procedure is an “‘escape mechanism’ when parents complete a reformation in the short, final period after the termination of reunifications services but before the actual termination of parental rights,” which is “vital to the constitutionality of our dependency scheme as a whole, and the termination statute, section 366.26, in particular.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528; In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
Ordinarily, we review the juvenile court’s decision concerning a section 388 petition for abuse of discretion. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) We do not inquire whether substantial evidence would have supported a different order, nor do we reweigh the evidence and substitute our judgment for that of the juvenile court. (Ibid.) At the outset, however, we must determine whether the juvenile court applied the correct legal standard to the issue in exercising its discretion, which is a question of law for this court. “The scope of discretion always resides in the particular law being applied; action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an abuse of discretion.” (Choice-In-Education League v. Los Angeles Unified School Dist. (1993) 17 Cal.App.4th 415, 422.)
2. The Juvenile Court Failed To Apply the Correct Legal Standard in Denying the Section 388 Petition
Determining whether granting a section 388 petition and modifying a prior order are in a child’s best interest “calls for a case-by-case analysis, not a mechanical rule.” (In re Justice P. (2004) 123 Cal.App.4th 181, 191; In re Kimberly F., supra, 56 Cal.App.4th at p. 530 [“best interests is a complex idea” that requires consideration of a number of factors].) Although the focus in a dependency proceeding after termination of reunification services shifts from the parent’s custodial interest to the child’s need for permanency and stability (In re Stephanie M., supra, 7 Cal.4th at p. 317; In re Marilyn H., supra, 5 Cal.4th at p. 309), permanence and stability cannot be the sole factors considered in ruling on a parent’s section 388 petition because denial of the petition would always further those critical goals. In addition, the child’s bond with the foster parents as compared to the party seeking modification, the child’s emotional state, the presumption favoring natural parents and the benefit to the child of establishing or maintaining a relationship with siblings must also be evaluated. (See In re Stephanie M., at p. 325 [juvenile court properly weighed factors to determine child’s best interest; “essence of the juvenile court’s ruling was that the child was fragile, that she had a strong healthy bond with the foster mother, and essentially no bond with the grandmother despite the opportunities that had been available to the grandmother to create such a bond”]; In re Justice P., at p. 192 [in determining whether evidentiary hearing was warranted on section 388 petition, juvenile court considered presumption favoring natural parents and interest in continuing relationship among siblings]; cf. In re Kimberly F., at pp. 529-530 [simple comparison between socioeconomic status of natural parents and caretakers “ignores all familial attachments and bonds between father, mother, sister and brother, and totally devalues any interest of the child in preserving an existing family unit, no matter how, in modern parlance, ‘dysfunctional’”].) Also relevant, although overlapping somewhat with whether changed circumstances have been demonstrated, are the “seriousness of the problem which led to the dependency, and the reason for any continuation of that problem” and “the degree to which the problem may be easily removed or ameliorated, and the degree to which it has been.” (In re Kimberly F., at p. 532.)
Given the juvenile court’s conclusion that V.T. had demonstrated sufficient changed circumstances to warrant relief, a view apparently shared by all the parties, we focus only on whether the court abused its discretion in impliedly finding that denying the petition was in J.T.’s best interest.
The juvenile court in this case failed to consider several of these significant factors in determining whether granting V.T.’s section 388 petition would be in J.T.’s best interest. Of even greater concern, the court embraced two fundamental misconceptions about V.T. that undoubtedly influenced its decision to deny the petition for modification. First, the court articulated at the section 388 hearing its mistaken belief (promoted by the Department’s misstatement of the record and uncorrected by V.T.’s trial counsel) that J.T had been born with a positive toxicology screen for cocaine. Indeed, the court expressed the same view at the section 366.26 hearing, along with some suggestion the end result (termination of parental rights) was preordained: In questioning V.T.’s request for a contested 366.26 hearing, the court stated, “But looking at this report, I’m not sure I understand the issues that would be raised in this contest. Just going back to page 8, it says that [J.T’s] siblings are former dependents due to the mother’s drug abuse. And the children’s mother failed to comply with the court ordered treatment programs. Parental rights were terminated. One sibling is now adopted. [V.T.] failed to unify with the siblings of [J.T.], and she used during the pregnancy of [J.T.]. She dropped the junk on her unborn children. Same old fact pattern.”
At the hearing on the section 388 petition, in addition to the Department’s statements, “this child was born into the system with a positive tox screen” and “[V.T.] had no idea how she and the baby tested positive,” the court observed, “[S]he came into this court and testified that she hadn’t used in two years and has no idea how the child could be born under the influence. That’s the court’s recollection.”
Second, the court appears to have prematurely -- and unfairly -- concluded the incomplete information concerning the possible outstanding warrant demonstrated V.T.’s unsuitability for reunification with J.T. The criminal history report listed two arrests in February 2006 (before V.T. began the actions found to demonstrate changed circumstances), one on February 20 in Riverside for possession of narcotics and one on February 24 for possession of drugs in Norwalk. Regarding the Norwalk warrant, the report cautioned, “WANTED - CONFIRM THAT WANT IS STILL OUTSTANDING.” V.T. stated she had been arrested in Riverside County for driving without a license on February 24, 2006 but was never brought before the court. Adding more uncertainty to the existence and current status of any outstanding warrant, the bailiff’s efforts to verify the warrant produced information that it had been issued from a third locality, Santa Clarita. While the possible arrest and detention of V.T. in connection with an outstanding felony warrant would certainly undermine the court’s earlier conclusion regarding change of circumstances and impact any evaluation whether reunification services would be in J.T.’s best interest, the court failed to determine whether a valid warrant was in fact outstanding or whether, even if it was, any issue surrounding the warrant could be quickly and easily resolved without V.T.’s incarceration.
Starting with a misconception about the nature of V.T.’s drug usage during her pregnancy and then having become distracted by the possible existence of the warrant, the only factor the court gave any serious consideration to was the fact J.T. had not established a bond with V.T. -- a practical impossibility given J.T.’s age and the limited visitation V.T. was provided -- and had been well taken care of by his foster caregivers for six months. The court did not consider the benefit to J.T. of being raised by his natural mother or having a relationship with his siblings and extended family or whether a transition to being raised by V.T. might be less disruptive given his young age and a lack of any adverse experiences with her.
In light of all these deficiencies in the trial court’s consideration of V.T.’s section 388 petition, the order denying the petition is reversed; and the matter remanded for the juvenile court to conduct an “updated” section 388 hearing to consider whether granting the petition, which would provide V.T. with six months to demonstrate her continued commitment to sobriety and efforts to improve her parenting, is in J.T.’s best interest. We recognize circumstances may have arisen during the pendency of this appeal that could affect the juvenile court’s evaluation of the various factors properly considered in deciding whether to grant V.T.’s petition and to order six months of reunification services. On remand the juvenile court should consider not only the current status of any criminal charges pending against V.T. (whether related to the felony warrant identified at the prior hearing or otherwise) but also V.T.’s continued sobriety, as well as J.T.’s current situation in the home of his prospective adoptive parents. (See In re Jayson T. (2002) 97 Cal.App.4th 75, 91, disapproved on another ground in In re Zeth S. (2003) 31 Cal.4th 396, 414 [reversing judgment terminating parental rights and remanding for “updated review hearing”].)
Because we reverse the order denying V.T.’s section 388 petition, the order terminating parental rights must also be reversed. (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1508.)
DISPOSITION
The orders denying V.T.’s petition for modification and terminating her parental rights are reversed, and the matter is remanded to the juvenile court with instructions to conduct a new section 388 hearing in a manner not inconsistent with this opinion.
We concur: WOODS, J., ZELON, J.