Opinion
F079433
11-21-2019
In re D.H. et al., Persons Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. ASHLEY I., Defendant and Appellant.
Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Appellant. Margo Raison, County Counsel, and Elizabeth Giesick, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. JD136760-00, JD136761-00)
OPINION
THE COURT APPEAL from an order of the Superior Court of Kern County. Cynthia L. Loo, Commissioner. Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Appellant. Margo Raison, County Counsel, and Elizabeth Giesick, Deputy County Counsel, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Smith, J.
-ooOoo-
INTRODUCTION
Appellant Ashley I. contends the juvenile court abused its discretion when it denied her Welfare and Institutions Code section 388 petition, terminated parental rights, and ordered a permanent plan of adoption. We affirm.
References to code sections are to the Welfare and Institutions Code. --------
FACTUAL AND PROCEDURAL SUMMARY
The facts set forth below regarding the case prior to remittitur are taken from the opinion in case No. F076787. In November 2016, the Kern County Department of Human Services (department) took then 5-day-old H.I. and 1-year-old D.H. into protective custody because mother tested positive for amphetamine at the time of H.I.'s birth and violated a restraining order by allowing the children's father, Ricky, to visit her in the hospital. The department placed the children together in foster care.
At the time, mother and Ricky had engaged in recent domestic violence. In March 2016, Ricky placed mother in a chokehold, pulled her to the ground and placed his knee on her throat to stop her breathing. He slammed her head on the ground several times and said he was going to stab her in the face until she was unrecognizable and kill her. She sustained a laceration on her forearm that was deep enough to expose fatty tissue. The following month, Ricky attempted to choke her and was arrested after a standoff with a SWAT team.
In January 2017, the juvenile court removed the children from parental custody and ordered the parents to participate in domestic violence and substance abuse counseling and submit to random drug testing. The court set the six-month review hearing for July 17, 2017.
Meanwhile, mother made very little progress on her case plan. She promptly enrolled in substance abuse counseling and drug testing but did not attend group sessions or 12-step meetings. She also failed to appear for drug tests, with one exception; she tested in April 2017 and the results were positive for methamphetamine. As a result, the staff terminated her from the program in June 2017 for failure to participate and recommended she pursue residential treatment. In March 2017, she enrolled in domestic violence counseling as a victim and by August, she had completed 12 of the 20 domestic violence sessions and 15 of the 20 individual counseling sessions. She missed a significant number of visits.
In its report for the six-month review hearing, the department recommended the juvenile court terminate the parents' reunification services. As to mother, the department reported that the social worker met with her monthly to discuss her compliance and provide her bus passes. Mother told the social worker that her mental health problems and anxiety prevented her from complying. She said it was "overwhelming" and she had so many problems she forgot to call in to drug test. She also claimed to have untreated bipolar disorder and said she was treating her anxiety by taking prescription medication without a prescription. She acknowledged her substance abuse but declined inpatient drug treatment to assess her mental health and substance abuse needs. She also declined to drug test. The department also reported that on June 28, 2017, the children were removed from their foster care placement for the fifth time since being removed from mother's care the previous November. Each move was at the request of the foster parent(s).
On July 17, 2017, the juvenile court convened the six-month review hearing. Mother appeared with her attorney, who informed the court she requested copies of the department's service logs the week before and requested a continuance to give county counsel an opportunity to produce them. Minors' counsel and county counsel informed the court the children's caretakers gave a seven-day notice and the children were moved earlier in the month and separately placed. County counsel explained they were removed because of behavioral issues, which along with their medical needs made them difficult to place. The court continued the hearing until August 31.
Mother failed to appear at the August 31, 2017, hearing scheduled for 8:30 a.m. She telephoned her attorney, stating she would be approximately 40 minutes late. However, when she had not arrived by 10:13 a.m., and her attorney was unable to reach her by telephone, the juvenile court proceeded to conduct the six-month review hearing, indicating it would deny a request for a continuance. Mother's attorney stated she had no evidence or argument, offering only that mother told her the day before that she had some progress reports indicating her participation in her case plan. Her attorney also objected to the court proceeding without mother's presence and to terminating her reunification services. The court found mother made minimal progress and terminated reunification services. The court also set a section 366.26 hearing for December 28, 2017. Neither parent filed an extraordinary writ petition.
On October 13, 2017, the children were placed together in their seventh foster care home, where they resided at the time of the section 366.26 hearing.
In its report for the hearing, the department recommended the juvenile court find the children were likely to be adopted because the caretakers were willing to adopt them both. The department anticipated, however, it would be difficult to find another family willing to adopt both children because of D.H.'s developmental delays. He had a 33 percent delay in fine motor, social and self-help skills and a 50 percent delay in his cognitive, receptive and expressive language skills.
The department also recommended the juvenile court terminate parental rights. Although mother was affectionate with the children and D.H. had a relationship with her, she missed a significant number of visits and the children looked to their caretakers to meet their daily needs. The department opined the benefit of adoption outweighed any detriment that would result from termination of parental rights. The children had no visiting relationship with Ricky, who was in state prison.
On December 28, 2017, mother's trial counsel appeared for the section 366.26 hearing before a judge pro tem sitting as the juvenile court and stated that mother was not present but was contesting the matter. She spoke to mother twice the week before and anticipated she would attend the hearing. She said mother lived in Mojave and was often late and requested a continuance. The court trailed the hearing until later in the day. By that afternoon, mother had still not appeared when the assigned judge recalled her case. Her attorney asked for a continuance and explained that she returned to her office over the lunch hour and checked her voice messages. Mother called her office at 7:30 a.m. and left five messages. Mother stated she was having transportation problems because she was not getting paid until the following evening and could not get to court. Counsel explained that the bus did not run that day from Mojave so even if mother was able to get a bus pass, she had no ability to get there that day. County counsel objected to a continuance, pointing out that mother was notified of the hearing and usually had her own transportation. Minors' counsel concurred.
The juvenile court denied counsel's request for a continuance, finding no good cause. The court stated,
"I'm concerned because of the age of the children and what I've seen in the report about granting a continuance. Unless there's any further comment, I think then I will proceed based on the proper notice and the fact that she's known about it. It's not like she's sick or in the hospital or ... something like that. It's just vague, I couldn't get there today. It seems like she would have known that sometime before 7:30 this morning when she called her attorney. She would have at least known yesterday or the day before. But just calling in the morning and not showing up to me based on the circumstances is not good cause."
Mother's attorney objected to the department's recommendation to terminate parental rights, pointing out that the children had multiple placements and had only been in their current placement for about two months. In addition, mother had very good visits with the children and the children responded very well to her.
The juvenile court found clear and convincing evidence the children were likely to be adopted and terminated parental rights. In our opinion in case No. F076787, we reversed the juvenile court's adoptability finding and the orders terminating parental rights as to both parents. We remanded for the juvenile court to set a contested section 366.26 hearing to consider the issues of the adoptability of the children and the applicability of the exceptions to adoption. Remittitur issued on October 10, 2018.
After remand, the social worker submitted a review report on December 11, 2018. The children had been in their current placement for over two years. The caregivers were committed to adopting the children if parental rights were terminated. The children were happy and "attached" to their caretakers. The review report recommended a permanent plan of adoption.
At the December 21, 2018 hearing, the juvenile court set the matter for a contested section 366.26 hearing. Parental rights were reinstated after this court's remand of the case. The juvenile court also conducted a status review hearing after considering the December 11, 2018 report. The juvenile court found the department had complied with the case plan, adequate services were being provided to the children, and the educational, physical, mental and developmental needs of the children were being met. Mother was to be given weekly supervised visitation for a total of two hours per week with the children.
On February 27, 2019, the caregivers filed a request to be granted de facto parent status. The request was granted on April 22, 2019.
On May 28, 2019, mother filed a request to change court order, also known as a section 388 petition. Mother asked that the children be returned to her custody and the dependency terminated. Mother asserted she had completed all components of her case plan and she did not present a risk to the children if they were returned to her custody.
On June 10, 2019, a supplemental social study was filed. Mother had been ordered to participate in counseling for victims of domestic violence and in substance abuse treatment. She also was to submit to random monthly drug testing. Mother completed a parenting class, substance abuse addiction class, and domestic violence class. Mother visited with the children four times after parental rights were reinstated but missed multiple other visits. Mother had failed to drug test as called for in the case plan; the one drug test she completed had been positive. As of the date of the supplemental social study, the children had been in foster care for two and one-half years. The department recommended denying mother's section 388 petition. The department also continued to recommend termination of parental rights and a permanent plan of adoption.
The contested section 366.26 hearing and a hearing on the section 388 petition was held on June 10, 2019. Mother testified that she had moved to Los Angeles County. She encountered difficulty with visitation because of transportation problems and had consequently missed visits. Mother had lost her driver's license several years prior after failing to report an accident and a urine test showed mental health medication in her system.
Mother testified the children recognized her at visits. She acknowledged, however, the children had a strong bond with the caretakers, and mother proposed transitioning the children slowly into her care. Mother also testified she wanted the children to have an ongoing relationship with the caretakers.
In addition, mother acknowledged she had been noncompliant with drug testing in 2017 during the dependency and her one test had been positive for methamphetamine. Mother stated she was willing to drug test and claimed she had been sober for about two years.
The juvenile court acknowledged that mother testified she had "corrected her mistakes, and the court has no reason to believe that that's not true." The juvenile court also noted, however, that the children had to be repeatedly moved in an 11-month span because of their medical and behavioral needs. The juvenile court noted that D.H. was no longer harming himself by hitting his head against the wall, no longing gorging himself on food, doing better in school, and expressing that he loved his caretakers and the other children in the home. H.I. was doing well and developmentally on target.
The juvenile court noted the children had been placed with the caretakers for at least one year eight months, and the improvement in the children was attributable to being in their care "a long time." Removing the children from the caretakers "would be detrimental to their best interest." In addition, the juvenile court noted that mother acknowledged the children were bonded to the caregivers and mother "wouldn't want them—your children to come back to you right away." The juvenile court found that mother did not meet her burden of showing changed circumstances and that granting the section 388 would be in the children's best interests.
As for the section 366.26 hearing, mother's counsel argued that the children would benefit from maintaining contact with mother and asked the juvenile court not to terminate parental rights.
The juvenile court found that the children were likely to be adopted and the beneficial parent-child relationship exception to adoption did not apply. There had not been consistent regular visits from which a "significant positive emotional attachment" had developed between mother and the children. Parental rights were terminated.
Mother filed a notice of appeal on June 11, 2019.
DISCUSSION
Mother contends the juvenile court abused its discretion when it denied her section 388 petition.
Standard of Review
Section 388 provides for modification of juvenile court orders when the moving party presents new evidence of a change of circumstances and demonstrates modification of the previous order is in the child's best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.); In re Y.M. (2012) 207 Cal.App.4th 892, 919; see Cal. Rules of Court, rule 5.570(e).) The standard of review for an order denying a section 388 petition is abuse of discretion. "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, 415-416.)
The petitioner has the burden of proof by a preponderance of the evidence. (Cal. Rules of Court, rule 5.570(h)(1)(D).) Courts liberally construe a section 388 petition in favor of its sufficiency. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) In assessing the petition, the court may consider the entire history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.) Where there is conflicting evidence, we reverse only if the evidence compels a finding for the appellant as a matter of law. (In re I.W. (2009) 180 Cal.App.4th 1517, 1527-1529.)
The best interests of the child are of paramount consideration when a section 388 petition is brought after reunification services have been terminated. (See Stephanie M., supra, 7 Cal.4th at p. 317.) In assessing the best interests of the child at this juncture, the juvenile court's focus is on the needs of the child for permanency and stability. (In re Marilyn H., supra, 5 Cal.4th at p. 309.)
Analysis
"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 (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child. [Citation.] The parent bears the burden to show both a legitimate change of circumstances and that undoing the prior order would be in the best interest of the child." (In re A.A. (2012) 203 Cal.App.4th 597, 611-612.) Section 388 serves as an " 'escape mechanism' when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528.)
"Not every change in circumstance can justify modification of a prior order. [Citation.] ... [T]he problem that initially brought the child within the dependency system must be removed or ameliorated. [Citations.] The change in circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged order." (In re A.A., supra, 203 Cal.App.4th at p. 612.)
"After the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point 'the focus shifts to the needs of the child for permanency and stability.' " (Stephanie M., supra, 7 Cal.4th at p. 317.) "A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child." (Ibid.) " 'A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent ... might be able to reunify at some future point, does not promote stability for the child or the child's best interests.' " (In re Mary G. (2007) 151 Cal.App.4th 184, 206.)
We agree with the juvenile court that mother did not carry her burden of showing that granting the section 388 petition would be in the best interests of the children. Mother had drug tested only once, which was a positive test, and failed to comply with the case plan on random drug testing. The children had been in foster care for two and one-half years. Of their time in foster care, the children had been in the home of the current caregivers for one year eight months, during which time their behavioral and other issues dissipated and the children were thriving. The children were bonded with the caregivers. Mother had not visited consistently with the children because of her decision to relocate to Los Angeles County and resultant transportation issues. There was not a significant, positive emotional attachment between mother and the children.
Mother acknowledged it would be best not to have immediate custody of the children but to slowly transition them to her custody. Essentially, mother was asking the juvenile court to delay permanency for the children. The children were in a loving home with a family who wished to adopt them and were thriving. Mother wanted to slowly transition them out of this loving home and into her custody, despite the fact the children were bonded with their caregivers, to see if mother would be able, at some future point, to have full custody of and parent the children. This does not promote stability for the children or the children's best interests. (In re Mary G., supra, 151 Cal.App.4th at p. 206.)
Mother was not prepared to provide a nurturing and safe, stable home for the children before the reunification period ended. "The reality is that childhood is brief; it does not wait while a parent rehabilitates himself or herself. The nurturing required must be given by someone, at the time the child needs it, not when the parent is ready to give it." (In re Debra M. (1987) 189 Cal.App.3d 1032, 1038.)
The focus after the reunification period has ended is on the needs of the child for permanency and stability. (Stephanie M., supra, 7 Cal.4th at p. 317.) The juvenile court did not abuse its discretion by denying the section 388 petition.
DISPOSITION
The order denying the section 388 petition, terminating parental rights, and setting a permanent plan of adoption is affirmed.