Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Sherri Sobel, Referee. Los Angeles County Super. Ct. No. CK68127
Lori A. Fields, for Defendant and Appellant.
James M. Owens, Assistant County Counsel, William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
KLEIN, P. J.
A.A. (mother) appeals from an order denying her petition for modification under Welfare and Institutions Code section 388 and terminating her parental rights with respect to three-year-old S.P. and two-year-old R.A.
Subsequent unspecified statutory references are to the Welfare and Institutions Code.
Mother contends the juvenile court made factual findings that were not supported by the record and improperly assessed the best interests of the children. Mother further asserts a recent amendment to section 361.5 suggests mother’s family reunification services should be extended to accommodate her residential drug treatment program. On review, we find no abuse of the juvenile court’s discretion in the denial of mother’s writ petition or the termination of parental rights and affirm the order.
FACTS AND PROCEDURAL BACKGROUND
1. Detention of the children.
On April 12, 2007, Sheriff’s deputies conducted a probation search of the home where mother resided with her children and maternal grandmother. Mother was on diversion due to a drug-related arrest in 2004 and maternal grandmother was on probation for welfare fraud. Maternal grandmother’s probation officer indicated the raid was prompted by several complaints regarding the home, which “has long been known... as a ‘hot spot’ for criminal and gang activity, drug sales and was frequented by several known criminals and gang members.” As a result of the raid, mother was arrested for possession of three baggies of methamphetamine and two glass pipes. Upon her release on April 20, 2007, the children were considered to be at risk of neglect.
The Department of Children and Family Services (DCFS) established a safety plan for the children which permitted the children to remain in mother’s care while the criminal investigation continued. Pursuant to this plan, mother agreed to enroll in a drug treatment program with random testing. DCFS made unannounced visits to mother’s home on May 3 and 8, 2007. After the second visit, mother enrolled in an outpatient drug program but she failed to appear for a drug test.
A team decision meeting (TDM) held on May 10, 2007, was attended by mother, maternal grandmother, maternal grandmother’s probation officer, two children’s social workers (CSW) and a TDM facilitator. The probation officer indicated mother’s siblings are notorious gang members and mother’s drug diversion program related to her 2004 arrest required an outpatient drug program. Mother denied she has ever had a drug problem and indicated she had not participated in the program because of financial considerations. However, probation records indicated mother was arrested for being under the influence of a controlled substance in 1996, 1997, 1998, 1999, 2001 and 2004, and was arrested for possession of a controlled substance in 2004, 2006 and 2007. Additionally, as a child, mother was taken into protective custody in the early 1980s based on allegations of physical abuse and neglect. DCFS concluded the children were at “a very high risk” for future neglect and took the children into protective custody.
2. Mother submits to the jurisdiction of the juvenile court.
On August 9, 2007, mother submitted to the jurisdiction of the juvenile court. On August 29, 2007, the children were placed in the home of R.A.’s paternal cousin, M.J., who had expressed a willingness to adopt the children.
As sustained, the dependency petition alleged mother created a detrimental and endangering home environment in that methamphetamine and drug paraphernalia were found in the home within access of the children. The petition further alleged mother exposed the children to gang members and gang activity and mother has a history of substance abuse which limits mother’s ability to provide regular care for the children.
Mother completed 13 weeks of a 26-week substance abuse program. However, by the time of an interim review report on November 15, 2007, mother had been terminated from her substance abuse program after she refused to drug test and admitted use of methamphetamine.
A report submitted January 15, 2008, indicated mother was arrested for possession of a controlled substance in June of 2007. However, the charge was dismissed when mother entered drug diversion. Mother completed a parenting class and an anger management program and recently had enrolled in a substance abuse program. Mother visited the children only two or three times per month and she failed to appear for a drug test on January 2, 2008. The report concluded mother was minimally compliant with the case plan and inconsistent with her twice weekly visits. S.P. was found to be eligible for Early Intervention Services through the Regional Center; R.A. was found not to be in need of services.
On January 17, 2008, mother tested positive for amphetamines through the probation department.
On January 29, 2008, the juvenile court terminated family reunification services and set a permanency planning hearing for May 27, 2008.
3. Permanency planning; mother’s section 388 petition.
Before the date set for the permanency planning hearing, DCFS reported M.J. had decided not to adopt the children. However, S.P.’s paternal aunt and uncle in Bakersfield, Mr. and Mrs. P., were interested in adopting both children. The CSW reported mother had visited the children only once since mid-April of 2008.
The children were placed with Mr. and Mrs. P. on July 18, 2008. Thereafter, the juvenile court continued the permanency planning hearing several times for completion of the P.’s home study. During this period, DCFS reported Mr. and Mrs. P. were providing a stable home and they desired to adopt both children. Mother has visited the children twice a month since they were placed with Mr. and Mrs. P. Mr. P. monitored mother’s first visit and observed “the children have no bond with [mother] and the children are fine when the mother leaves the visit.” During subsequent visits, Mrs. P. noticed mother rarely interacted with R.A. and focuses on S.P. Also, mother inappropriately discussed the dependency case with the children.
On November 24, 2008, mother filed a petition under section 388 which alleged she has participated in a residential drug rehabilitation program since July 1, 2008, she has consistently tested negative for drugs and she received a certificate for 90 days of sobriety. Mother asserted she was resolving her drug issues and it was in the best interests of the children to be placed with her. A letter from mother’s drug rehabilitation program indicated mother’s program required a minimum of nine months to one year of participation and mother had participated for 137 days.
The juvenile court granted a hearing on mother’s section 388 petition and continued the permanency planning hearing to December 15, 2008.
A report prepared for that hearing indicated mother continued to favor S.P. during visits and mother initiates little contact with R.A. The report noted the children call Mr. and Mrs. P. “mom” and “dad.” With respect to mother’s section 388 petition, DCFS reported mother entered her current residential drug treatment program only after the judge in her criminal case gave her the option of going to jail or enrolling in a program. Mother’s counselor indicated that, after mother completes the one-year inpatient drug treatment program in July of 2009, she will be transferred to a sober living home where mother will reside for approximately two years. During that time, the children could reside with mother, sharing a room with mother and two adult females.
On December 10, 2008, Mrs. P. indicated mother visited the children twice in November. However, R.A. “does not know mother at all” and S.P. refers to mother by her first name. Mrs. P. indicated mother does not assume parental duties during the visits such as cleaning the children’s noses. Also, mother curses in front of the children. Mrs. P. is eager to proceed with the adoption and believes reunification with mother would cause a setback in the children’s progress. Mrs. P. indicated she believes it would be detrimental for the children to be moved to another placement as they are now part of the P.’s family.
On December 15, 2008, the juvenile court noted mother was doing well but both children had been out of her care for a significant period of time. The juvenile court continued the hearing for 30 days and ordered DCFS to conduct a TDM attended by all interested parties to address the placement of the children. The juvenile court also ordered the CSW personally to monitor one of mother’s visits.
A report prepared for January 15, 2009, noted the children had made tremendous progress in the care of Mr. and Mrs. P. The case notes indicate that when the children were placed with Mr. and Mrs. P., M.J. reported both children rocked back and forth when they went to sleep. Also, R.A. chewed his food for 30 minutes before swallowing and ate feces from his diaper. Two months later, the CSW observed the children before a supervised visit with mother. They were well dressed and appeared to be bonded to Mrs. P., who reported R.A. continued to hold food in his mouth and rock himself to sleep but his speech was improving. S.P. rocked herself less, she was adjusting well in pre-school and was reported to be very smart for her age.
The CSW reported mother played with both children during the monitored visit. However, when Mr. and Mrs. P. left the visit, S.P. asked where “mommy and daddy were going?” R.A. points at Mr. and Mrs. P. when asked who his parents are. The CSW observed mother was more affectionate with S.P. than with R.A.
The report indicated mother’s counselor had opined at the TDM that mother should be given another opportunity to regain custody of the children. However, DCFS noted mother did not immediately comply with the case plan and the children, who were removed from mother’s care at the ages of 18 and four months, respectively, have now lived apart from mother for 18 months. Further, mother does not appear to have a very strong bond with either child, but especially R.A.
On January 23, 2009, the juvenile court conducted a combined permanency planning hearing and a contested hearing on mother’s section 388 petition. At the start of the hearing, mother withdrew her contest on the permanency planning issue. Mother’s counsel also indicated that, because the children had been out of mother’s care for approximately 20 months, mother was in no position to request additional family reunification services.
With respect to the section 388 petition, mother’s counsel cross-examined CSW Rosalba Arroyo who conceded she did not believe placement with mother at a sober living home would be detrimental to the children. However, Arroyo also testified mother’s progress was insufficient to ensure she would not relapse and the interests of the children were best served by remaining in their permanent placement.
Counsel for DCFS and counsel for the children asked the juvenile court to deny mother’s petition.
Before ruling, the juvenile court noted mother currently was in compliance with the case plan and had been sober for approximately six months. However, unlike many parents who immediately comply with the case plan, “This mother did zip.” The juvenile court indicated the children had special needs when DCFS detained them, noting R.A. was eating his feces, the children were “unsocialized,” S.P. did not speak and she continues to rock herself to some extent. The juvenile court found mother entered a drug program only to avoid jail and mother “[n]ever did a thing... while [the children] were in the system. Never in any way tried to get these children back until she was forced into sobriety.”
The juvenile court credited mother for her late compliance and conceded mother’s circumstances had changed. However, the juvenile court found the children’s circumstances also had changed. “They have gone from being sad, ill, neglected children to being possibly healthy children down the road.” The juvenile court concluded it was not in the best interests of the children to be returned to mother. The juvenile court denied the section 388 petition and terminated parental rights.
CONTENTIONS
Mother contends the denial of her section 388 petition was an abuse of discretion in that the juvenile court made factual findings that were not supported by the record, improperly assessed the best interests of the children and failed to consider a recent amendment to section 361.5.
DISCUSSION
1. General principles.
A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that new or changed circumstances exist, and the proposed change would promote the best interest of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 316-317.) The petitioner bears the burden to show, by a preponderance of the evidence, both “a ‘legitimate change of circumstances’ ” and that undoing the prior order would be in the best interest of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.)
“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.) “ ‘ “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.” ’ [Citation.]” (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.) “The denial of a section 388 motion rarely merits reversal as an abuse of discretion.” (In re Amber M. (2002) 103 Cal.App.4th 681, 685-686.)
2. Changed circumstances.
Mother devotes much effort to persuading us she demonstrated changed circumstances. She argues the juvenile court improperly minimized her significant efforts to comply with the case plan and instead focused on the fact mother entered residential treatment to avoid jail time, which suggested mother’s recovery was not genuine. Mother disputes the juvenile court’s statement mother “never did a thing” until “she was forced into sobriety.” Mother notes she complied with the case plan before the detention hearing and participated in a substance abuse program for seven months before she relapsed in November of 2007. Mother enrolled in another program in January of 2008, and, although she did not participate in that program, mother enrolled in a residential program in July of 2008 and, according to her counselor, was likely to remain sober and should be given another opportunity to have custody of her children. Mother concludes this evidence showed a change of circumstances that warranted a change in the juvenile court’s order.
Although the juvenile court initially indicated mother had demonstrated only changing circumstances (see In re Mary G. (2007) 151 Cal.App.4th 184, 206; In re Casey D. (1999) 70 Cal.App.4th 38, 47), it eventually agreed mother had shown changed circumstances. Thus, the critical issue before the juvenile court, and this court on appeal, is whether a change of placement was in the children’s best interests. We therefore proceed directly to that point.
1. Best interests of the children.
Mother contends the juvenile court improperly engaged in a “simplistic comparison” of her household and the P.’s household. (In re Kimberly F., supra, 56 Cal.App.4th at p. 530.) Mother argues the juvenile court failed to consider the importance of familial attachments. Mother notes she visited regularly except between February 15, 2008, and May of 2008. Mother asserts the record contains no negative information about mother’s interaction with the children during visits except the notation mother failed to wipe the children’s noses and used profanity in their presence. Mother notes the children had been in the P.’s home for only six months but had lived with her until the ages of 18 and 4 months, respectively.
Mother also contends the juvenile court made several findings that are not supported by the record. Mother disputes the finding the children had “gone from being sad, ill, neglected children to possibly being healthy children down the road.” Mother asserts there was no evidence the children were sad, ill or neglected in her care. The children were reported to be “clean and well cared for” with “no immediate safety concerns” at the time of detention and S.P. was reported to be sad only when she was removed from mother and placed in foster care.
The juvenile court also found the children had “incredibly special needs,” R.A. had “mental health issues,” and DCFS “couldn’t even find a home that could deal with these children’s needs.” However, CSW Arroyo testified only that the children were being assessed through the Regional Center. Further, DCFS had no trouble placing the children with relatives.
The juvenile court further found the children did not “even know” mother. However, the CSW reported mother was affectionate with the children, S.P. sat in her lap to eat a snack and R.A. sat next to her. Mother’s asserts this demonstrates a bond between mother and the children.
None of mother’s arguments persuades us the juvenile court abused its discretion in determining the best interests of the children. The juvenile court’s statement the children had special needs finds support in the fact both children had delays in speech and language, they displayed head rocking behavior and R.A. reportedly ate his feces. The juvenile court’s statement regarding the difficulty in finding a home for the children is sufficiently explained by M.J.’s decision not to adopt the children after she initially indicated a desire to do so. Although the children may not have been ill or sad when they were detained, it is clear they properly were removed from mother’s care and mother does not suggest otherwise.
Additionally, mother exaggerates the regularity of her visitation. In August of 2007, the juvenile court granted mother visits twice a week. Mother visited only two or three times a month while the children were with M.J. and visited even less while the children were with Mr. and Mrs. P. Although the children recognized mother and sat with her during monitored visits, they referred to Mr. and Mrs. P. as their parents.
Regarding the juvenile court’s alleged denigration of mother’s efforts at rehabilitation, mother did not enter the residential program until seven months after her family reunification services were terminated. Further, the juvenile court correctly noted the impetus for enrolling was not to reunify with her children but to avoid jail.
In sum, mother’s history of drug abuse and her previous failed attempts to resolve her drug issues provides a sufficient basis upon which the juvenile court reasonably could conclude six months of drug treatment was insufficient to show the best interests of the children would be served by depriving them of a permanent, stable home with Mr. and Mrs. P. in exchange for an uncertain future with mother. (In re Stephanie M., supra, 7 Cal.4th at pp. 317-318; In re Casey D., supra, 70 Cal.App.4th at p. 47.) Based on the record presented, we cannot say the juvenile court’s decision to deny mother’s request for modification was an abuse of discretion.
4. Additional family reunification services.
Mother also contends the juvenile court failed to consider the possibility of an additional period of family reunification services and failed to consider that a recent amendment to section 361.5 now permits up to 24 months of family reunification services. (§ 361.5, subd. (a)(4).) Additionally, section 361.5, subdivision (a)(3) directs the juvenile court to “consider the special circumstances of... parent or parents court-ordered to a residential substance abuse treatment program, including, but not limited to, barriers to the parent’s or guardian’s access to services and ability to maintain contact with his or her child” in determining whether services should be extended. (§ 361.5, subd. (a)(3).)
Mother notes her section 388 petition requested return of the children or additional family reunification services. However, mother’s counsel withdrew the request for additional family reunification services at the start of the hearing on mother’s petition. Mother asserts counsel apparently was under the erroneous impression additional family reunification services were not possible in this case. Mother argues this court nonetheless may factor the new law into the analysis of the best interests of the children. (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1459.) Mother argues these amendments reflect legislative recognition that rehabilitation from substance abuse issues may take longer than the 18 months previously afforded under the statute. Mother notes there was no evidence to suggest that an additional period of services would cause the children long-term serious emotional damage that would justify denial of the section 388 petition. (In re Jasmon O., supra, 8 Cal.4th at pp. 418-419.)
Mother concludes the remarkable turnaround in her life warranted additional family reunification services to explore the possibility of returning the children to mother’s care.
Mother’s argument on this issue is plainly without merit. In the reply brief, mother candidly concedes the amendment to section 361.5 does not apply to her case because her family reunification services were terminated well in advance of the hearing on her section 388 petition. Nonetheless, mother argues the purpose of the amendment is now part of the overall dependency scheme and should have been factored into the juvenile court’s discretionary analysis of whether it was in the best interests of the children to continue the hearing and offer mother additional revocation services.
Putting aside mother’s failure to request family reunification services in the juvenile court, it is apparent the juvenile court was not required to consider an inapplicable reunification statute when considering mother’s request to return the children to her care. Further, the record demonstrates the juvenile court considered mother’s participation in the residential drug treatment in making its determination of the children’s best interests.
Consequently, mother fails to demonstrate an abuse of discretion in the denial of her section 388 petition.
DISPOSITION
The order is affirmed.
We concur: CROSKEY, J., KITCHING, J.