Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK72972 Elizabeth Kim, Referee.
Andre F. F. Toscano, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
KLEIN, P.J.
Robin M. (mother) appeals an order denying a petition for modification of previous orders issued with respect to mother’s now six-year-old son, T.M. (Welf. & Inst. Code, § 388.) We affirm the juvenile court’s order denying mother’s petition.
Subsequent statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL SUMMARY
1. The initial assertion of dependency jurisdiction.
T.M. came to the attention of the Department of Children and Family Services (the Department) based on a May 2008 referral indicating T.M.’s sibling, two-month-old A.B., was a victim of neglect. Police officers received a report indicating there was drug activity in mother’s home and that A.B. cried incessantly. Officers went to the home, found A.B. in an unacceptable living environment and detained her.
The detention report included maternal grandmother’s statement that mother had used drugs since high school and her drug of choice was methamphetamine which she injected or smoked. Maternal aunt stated mother once broke into maternal aunt’s home, could not find anything to steal and assaulted maternal aunt.
The social worker met with T.M.’s father and father’s girlfriend, J.M., at the home where they lived with T.M. and J.M.’s three children. Father indicated he had custody of T.M. every other week pursuant to a family court order which provided father could not release T.M. to mother unless mother was drug-free and had a safe home. Father indicated mother told him one week earlier she was using drugs.
The Department released T.M. to father and placed A.B. in foster care.
The jurisdiction report indicated mother had a long history of drug abuse and a history of cohabiting with violent people who abused drugs. In an addendum report, mother admitted she had used drugs her entire life but claimed she no longer did.
On July 9, 2008, the juvenile court sustained the dependency petition which alleged father and mother have a history of violent physical altercations, including mother throwing a knife at father and forcibly entering his home without permission and, on one prior occasion, father was arrested and charged with domestic violence against mother. The petition also alleged mother had a history of substance abuse and was a current abuser of methamphetamine.
At disposition, the juvenile court declared T.M. and A.B. dependents and ordered mother to attend drug rehabilitation with random drug testing, parent education and individual counseling to address anger management issues. The juvenile court granted mother monitored visitation with each child.
2. Mother’s initial compliance with the case plan.
A social report filed October 8, 2008, indicated that on June 5, 2008, A.B. was placed in a preadoptive home. The Department reported T.M. was well cared for in father’s custody and that T.M. seemed attached to mother, who was attentive during visits.
Mother enrolled in outpatient substance abuse programs but tested positive for methamphetamine on July 14, 2008. Mother tested negative on July 29, 2008, but failed to appear for testing on August 4, 2008. Mother tested negative on three subsequent tests and enrolled in parenting class and counseling. However, her attendance at drug treatment counseling and individual therapy was inconsistent.
A social report filed January 7, 2009, indicated that on November 26, 2008, mother was caught attempting to use a device that provided the urine of another for a random drug test. When questioned, mother admitted she would test positive. The social worker suggested mother’s previous negative tests were now suspect. Mother continued to attend parenting class and individual counseling but struggled to comply with the case plan. Although mother stated she had been attending her programs, mother was referred to another facility due to inconsistent attendance, lack of motivation and failure to adhere to group rules. Mother indicated she was residing with maternal grandmother. However, father told the social worker mother was living with the same male companion with whom she resided when A.B. was detained. Mother missed numerous visits with T.M. and ended others early because T.M. misbehaved. The Department recommended termination of mother’s family reunification services. However, the juvenile court continued mother’s reunification services and set the matter for further review.
In a social report filed April 15, 2009, father admitted a warrant had been issued for his arrest for robbery. Father intended to turn himself in and asked the social worker to place T.M. with paternal grandmother while father was incarcerated.
On January 13, 2009, mother enrolled in a 90-day inpatient program at Acton Rehabilitation Center. The program did not permit visitation for the first 30 days. Mother was discharged from the facility on March 9, 2009, because she had an inconclusive drug test for benzodiazepine. Mother had no visitation with T.M. or A.B. while she was enrolled in Acton. When the test was later determined to be negative, mother was permitted to re-enroll. However, Acton staff advised the social worker that mother had not been permitted to re-enroll because she admitted she was using drugs. Mother stated she planned to enroll in an outpatient drug program that would also provide individual counseling. Mother also intended to resume visitation with both children.
3. T.M. is detained from father; supplemental petition filed.
On June 1, 2009, Baby Boy M., the child of father and his girlfriend, was found to be not breathing after sleeping in the same bed as his parents. After the child was pronounced dead at the hospital, father became violent and was arrested on the outstanding warrant. The Department filed a supplemental petition and placed T.M. in the care of paternal grandmother.
4. Mother’s failure to comply with the case plan results in termination of her family reunification services.
A social report prepared for July 7, 2009, indicated that in April of 2009, paternal grandmother agreed to monitor mother’s twice weekly visits with T.M. However, paternal grandmother’s work schedule permitted her to monitor only one visit per week. In May of 2009, paternal grandmother refused to monitor any further visits because mother harassed her by telephone for not being able to monitor two visits a week and mother blamed paternal grandmother for “everything.” In June of 2009, mother was late for every visit with T.M. Further, the monitor reported mother was not motivated during the visits.
A status review report prepared for July 8, 2009, indicated mother tested positive for methamphetamine on April 28, 2009, and was not attending individual counseling or parenting class. On May 4, 2009, mother informed the social worker she had enrolled in a three-month outpatient program at the National Council on Alcoholism and Drug Dependence (NCADD) for substance abuse and individual counseling. However, mother left the program on May 28, 2009, and missed five random drug tests between April and June of 2009. The Department recommended termination of mother’s family reunification services.
On July 8, 2009, the juvenile court sustained the subsequent petition, ordered T.M. placed with paternal grandmother and continued mother’s family reunification services. The juvenile court ordered mother to confirm her visits 24 hours in advance and indicated mother’s visits would be forfeited if mother arrived more than 15 minutes late.
On August 6, 2009, the Department reported that on July 15, 2009, mother arrived late for a monitored visit. When the social worker informed mother the visit would be cancelled, mother became agitated and yelled at the social worker. When paternal grandmother took T.M. to the car, mother’s friend, Diane G., yelled at paternal grandmother, pounded on paternal grandmother’s car window next to T.M.’s car seat and tried to open the car door.
A social report prepared for November 16, 2009, indicated mother was angry and frustrated and she had been disrespectful toward the social worker, paternal grandmother, A.B.’s foster parents and the foster family agency. Mother refused to meet regularly with the social worker and argued when the social worker encouraged mother to follow the case plan. The social worker had not met with mother since August 5, 2009. Paternal grandmother alleged mother threatened her when paternal grandmother tried to explain that T.M. did not want to speak to mother on the telephone. Mother had an incident with a foster family agency social worker after mother confirmed a visit with A.B. but failed to appear the next day. Mother also had an incident in the parking lot with the foster parents. Mother tested positive for methamphetamine on September 15, 2009, tested negative once and missed drug tests on August 5, August 21, and October 8, 2009. Paternal grandmother reported a male entered her workplace and threatened her regarding having T.M. in her custody. The male yelled and screamed at paternal grandmother, told her to stay home with T.M. and to put him on the phone when mother called. Paternal grandmother also reported that someone banged on her door late one night and yelled words that did not make sense. On September 29, 2009, mother visited T.M.’s preschool. The director wrote that mother appeared to be under the influence, had a hard time collecting her thoughts and was unkempt. Mother initially indicated she wanted information regarding enrolling her 18-month-old daughter. However, she later informed the director her son attended the preschool and she would like to see him. This conduct violated the order for monitored visitation. On September 18, 2009, mother was terminated from her parenting class due to lack of attendance. Mother’s parenting instruction opined mother was not able to care for children and told the social worker mother had “serious issues.” Although mother previously indicated NCADD provided individual counseling, the social worker learned it provided only substance abuse counseling.
Regarding visitation with A.B., mother attended 6 of 14 visits in September and October and canceled a November 2 visit shortly before it was scheduled to take place. Regarding mother’s visitation with T.M., mother attended three of four visits in August, two of five visits in September and three of four visits in October; mother’s scheduled daily telephone contact with T.M. also was inconsistent. At monitored visits with T.M. on July 22, 29, August 5 and 12, 2009, mother brought toys, puzzles and age appropriate snacks. Mother and T.M. watched DVD’s, played and ate lunch. The visits reportedly went well.
A last-minute information report filed November 16, 2009, indicated mother had completed a parenting class with an online provider. On November 20, 2009, mother provided the social worker with a progress report from NCADD dated November 13, 2009, which indicated mother had attended 12 alcohol and education sessions, 12 groups discussion sessions and 24 AA meetings. Mother also provided a letter from the Department of Mental Health stating she would commence treatment on October 27, 2009. Mother indicated she currently was taking Zoloft and Trazedone. In November of 2009, mother missed two visits with T.M.
On November 23, 2009, the juvenile court continued father’s family reunification services but terminated mother’s family reification services and set a permanency planning hearing as to A.B. on March 22, 2010.
A social report prepared for December 21, 2009, indicated that on November 25, 2009, mother tested positive for cannabinoids. Mother stated surprise at the positive test result and denied use of marijuana.
5. Mother’s section 388 petition.
On May 25, 2010, mother filed a section 388 petition seeking liberalization of her visitation with T.M. and reinstatement of family reunification services. The petition alleged mother had completed rehabilitation and was participating in relapse prevention, Narcotics Anonymous meetings, individual therapy and random drug testing. The petition further claimed mother consistently had visited T.M. for three or more hours at a time, she had obtained a high school diploma and was attending college. Mother asserted liberalized visitation would help normalize her relationship with T.M. and additional reunification services would not jeopardize T.M.’s stability as father continued to receive family reunification services.
Mother attached to her petition letters from the Department of Mental Health which stated mother commenced treatment on October 13, 2009, she attended seven individual therapy sessions, a few dual recovery group sessions, five of six parenting classes, and her next psychiatric appointment was on April 8, 2010. Also attached to the petition was a certificate of completion from NCADD dated November 20, 2009, and a progress report from NCADD which indicated mother completed the adult program on December 17, 2009, and attended 14 after care sessions and 48 AA meetings. A letter dated March 17, 2010, from John Lewis of NCADD indicated mother had demonstrated emotional stability and was able to resume parental responsibilities. Mother also submitted six negative test results from Pacific Toxicology from November of 2009 through February of 2010, and negative test results from NCADD dated March 3 and April 6, 2010. Mother also attached a record of her telephone contact with T.M. in November and December of 2009. A letter from Westwood College indicated mother had completed the requirements for a high school diploma.
A social report prepared for July 14, 2010, noted mother tested positive for marijuana on November 25, 2009, 23 days prior to completing the NCADD substance abuse program. Thus, although mother participated in the substance abuse program, she continued to use marijuana, indicating mother was not benefiting from the program. Further, the Department could not accept the NCADD test results because NCADD did not perform random drug testing.
With respect to visitation, the monitor for mother’s visits reported mother has a temper and becomes emotionally reactive very quickly when T.M. does or says something mother does not like. During the visits, mother and T.M. mostly watch videos.
A last-minute information form filed July 28, 2010, recommended denial of mother’s section 388 petition because mother had failed to establish a history of sobriety and had exceeded the 18-month limit for family reunification services. The Department asserted mother had been inconsistent in visiting and telephoning T.M. throughout the history of the case and she had difficulty getting along with visitation monitors. The Department claimed mother’s evidence did not show positive behavioral changes that would mitigate the risk factors that brought the family before the juvenile court.
6. The contested hearing on the section 388 petition.
On July 28, 2010, the juvenile court received into evidence the documents attached to mother’s petition and conducted a contested hearing on mother’s petition.
John Lewis, a recovery specialist with NCADD, testified mother enrolled in May of 2009, completed the drug program and attended aftercare which involves AA meetings, meeting with a sponsor and drug testing. Mother became busy with school and now participates only in AA. Lewis confirmed that NCADD did not perform random drug tests. However, he considered mother’s negative test results to be random. Lewis believed mother had turned a corner and was making a stable change.
Mother testified she enrolled at NCADD in May of 2009 and attended regularly except for one month when she lacked transportation. Mother completed the program in December of 2009 and attended after care through March 2010. Mother completed a parenting program and was attending individual counseling once every other week. Although mother’s family reunification services were terminated in November of 2009, she continued to drug test until February of 2010. Mother also drug tested in March and April of 2010 to prove she was drug free. Mother stopped testing on April 16, 2010, because her parental rights as to A.B. were terminated and she no longer could afford the tests. Mother claimed she had been drug free since October of 2009, and could not explain the positive test for marijuana. Mother obtained a high school diploma in December 2009. She attends Charter College training to be a dental assistant and expects to graduate in January of 2011. Mother visited T.M. for days at a time before father was incarcerated in June of 2009, and thereafter she visited for three hours a week. Mother testified she made nightly telephone calls to T.M. but paternal grandmother did not answer the phone. Mother claimed she had not cancelled any visits with T.M. Mother requested liberalized visitation and reinstatement of family reunification services. Mother indicated she could provide T.M. a good home, she lived with maternal grandmother whose home was within walking distance of T.M.’s school and T.M. cried when visits ended.
On cross-examination, mother admitted she missed eight drug tests during the five months she attended NCADD and missed all of her drug tests in May of 2009. Mother conceded NCADD did not offer anger management counseling but claimed she complied with the individual counseling aspect of the case plan through the Department of Mental Health.
Counsel for father and counsel for T.M. opposed mother’s petition.
The juvenile court denied the petition. It found mother missed drug tests in May, June, August, September and October of 2009. Also, mother tested positive for methamphetamine, she had a recent positive test for marijuana which mother failed to explain, and mother had only been participating in the case plan for a few months. Further, mother had not shown the requested change in plan would benefit T.M. The juvenile court noted T.M. was in a permanent plan in the home of paternal grandmother and the child deserved permanency.
CONTENTIONS
Mother contends the juvenile court abused its discretion in denying her section 388 petition. Mother claims the juvenile court should have reinstated family reunification services and/or granted mother unmonitored visitation.
DISCUSSION
1. General principles.
Section 388 provides for modification of an order of the juvenile court when the moving party presents evidence of changed circumstances and demonstrates the requested modification is in the child’s best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) The petition must be considered in the context of the dependency proceedings as a whole. (In re Marilyn H. (1993) 5 Cal.4th 295, 307.) When a section 388 petition is filed after family reunification services have been terminated, the juvenile court’s overriding concern is the child’s best interests. (In re Stephanie M., at p. 317.) The parent’s interests in the care, custody and companionship of the child are no longer paramount and the focus shifts to the needs of the child for permanency and stability. (In re Marilyn H., at p. 308.)
Factors to be considered in determining whether to grant a section 388 petition include the seriousness of the problem that led to the dependency, the reason the problem continued, the strength of the parent-child and child-caretaker bonds, the length of time the child has been in the system, the nature of the change of circumstance, the ease by which the change could be achieved and the reason the change did not occur sooner. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.)
The juvenile court’s determination as to whether an order should be modified pursuant to section 388 is reviewed for abuse of discretion. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) We may disturb the juvenile court’s exercise of its discretion only in the rare case when the court has made an arbitrary, capricious or “patently absurd” determination. (Id. at p. 318.) We do not inquire whether substantial evidence would have supported a different order, reweigh the evidence or substitute our judgment for that of the juvenile court. (Id. at pp. 318-319.)
2. Mother’s fails to demonstrate an abuse of discretion in the denial of her petition.
Mother contends the juvenile court disregarded mother’s changed circumstances, ignored her achievements and erroneously focused on T.M.’s placement in long-term foster care with paternal grandmother. Mother claims the juvenile court improperly applied a simple best interests test which ignored familial attachments and devalued any interest in preserving an existing family unit. (In re Kimberly F., supra, 56 Cal.App.4th at pp. 529-530.)
Mother notes she completed the NCADD program in December of 2009 and claims that, in light of her full recovery which included a nine-month period of sobriety commencing October 25, 2009, the juvenile court improperly penalized her for testing positive for methamphetamine on September 15, 2009, and for marijuana on November 25, 2009. Mother asserts she resolved her drug problem, graduated from high school, completed parenting education, continued to attend individual counseling and was studying to become a dental assistant.
Mother claims she and T.M. had a strong bond, she visited T.M. appropriately throughout the case and, in September of 2009, the Department reported the visits were going well and mother brought toys, puzzles and age-appropriate food for T.M. From July to November of 2009, mother attended 12 of 16 scheduled visits. Mother claims her handwritten notes of her telephone calls to T.M. show she was consistent and paternal grandmother was uncooperative. At no time was mother’s contact with T.M. detrimental to him. Further, the juvenile court’s focus on T.M.’s permanent placement with paternal grandmother was misdirected in that father continued to receive family reunification services. Because there was a possibility T.M. would be returned to father, T.M.’s placement with paternal grandmother was not permanent.
Mother concludes she showed changed circumstances and that T.M.’s best interest would have been promoted by reinstating mother’s reunification services or granting her unmonitored visitation.
We are unable to conclude the denial of mother’s section 388 petition was an abuse of the juvenile court’s discretion. As indicated above, in order to succeed on her petition, mother was required to show changed circumstances and that the requested modification was in T.M.’ best interests. She did neither.
With respect to mother’s circumstances, the detention report included mother’s admission she had used drugs since her teenage years. T.M. initially was in father’s custody pursuant to a family law order that specifically provided father was not to release T.M. to mother unless she was drug-free. Thus, mother’s drug abuse was a serious problem even before the Department became involved with the family. Mother failed to take advantage of the family reunification services offered her and repeatedly relapsed into drug abuse. On one occasion while mother continued to receive family reunification services, she attempted to provide another person’s urine when she appeared for a random drug test. While she was enrolled in the NCADD program, mother tested positive for methamphetamine on April 28, and September 15, 2009, and tested positive for marijuana on November 25, 2009. Mother went to T.M.’s school on September 29, 2009, and was described as being unkempt and disoriented. At about the same time, mother’s parenting instructor indicated mother had serious issues and was unable to care for children. Regarding mother’s progress after she completed the NCADD program, mother admitted at the contested hearing she did not drug test after April 16, 2010, and, although mother submitted numerous negative test results, the Department refused to accept the results reported by NCADD because it did not perform random drug testing. Given mother’s long history of drug abuse, she failed to show she had overcome her drug dependence sufficiently to warrant a change of order.
Additionally, the juvenile court ordered mother to participate in individual counseling to address anger management issues. Assuming mother participated in anger management counseling with the Department of Mental Health as she testified, mother continued to have difficulty controlling her behavior. In July of 2009, mother became agitated after a visit was canceled because mother arrived late. Mother’s friend cursed paternal grandmother and pounded on the window of her car with T.M. in the car seat. In November of 2009, paternal grandmother reported that mother threatened her and had an unknown male threaten her regarding her care of T.M. Mother also was involved in angry incidents with the monitor of mother’s visits with A.B. and A.B.’s foster parents. These incidents demonstrated mother’s anger management issues remained ongoing.
In sum, based on mother’s long history of drug abuse and anger management problems, she demonstrated, at best, only “changing circumstances.” Such a showing by a parent who repeatedly has failed to reunify with a child is insufficient to sustain the parent’s burden of proof on a section 388 petition. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
Mother also failed to show the requested change of order would be in T.M.’s best interests. Mother visited T.M. inconsistently and the visits were problematic. The Department reported mother reacted emotionally when T.M. did or said something mother did not like and when paternal grandmother reported T.M. did not want to speak to mother on the telephone. Mother blamed paternal grandmother for T.M.’s reluctance to speak with her and threatened paternal grandmother, personally and through an unknown male who visited paternal grandmother’s work.
Regarding mother’s claim the juvenile court erroneously considered T.M.’s placement with paternal grandmother permanent because father continued to receive family reunification services at the time of the hearing on mother’s section 388 petition, we note father’s services were terminated on November 22, 2010, and the juvenile court set a permanency planning hearing for T.M. on March 21, 2011. In case No. B229777, filed March 14, 2011, this court denied petitions for extraordinary writ filed by mother and father with respect to that order. Thus, T.M. currently is placed pursuant to a permanent plan.
Additionally, with respect to mother’s request for additional family reunification services, mother received 18 months of reunification services before her services were terminated on November, 23, 2009. In general, the juvenile court may not provide family reunification services in excess of this time period. (§ 361.5, subd. (a)(3).) The juvenile court may extend reunification services up to a maximum time period not to exceed 24 months only if it finds it is in the child’s best interest to have the time period extended and there is a substantial probability the child will be returned to the physical custody of his or her parent within the extended time period, or that reasonable services have not been provided. (§ 361.5, subd. (a)(4).) Mother failed to demonstrate it was in T.M.’s best interests to extend family reunification services, a substantial probability he would be returned to mother within the extended time period, or that mother did not receive reasonable family reunification services. Thus, mother did not provide any basis upon which the juvenile court could have extended reunification services beyond the 18-month statutory limit.
Given these facts, the denial of mother’s section 388 petition was not an abuse of the juvenile court’s discretion.
DISPOSITION
The order of the juvenile court is affirmed.
We concur: CROSKEY, J.KITCHING, J.