Opinion
F076460
04-05-2018
In re I.G., a Person Coming Under the Juvenile Court Law. KINGS COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. MARTHA R., Defendant and Appellant.
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant. Colleen Carlson, County Counsel, and Rise A. Donlon, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 17JD0072)
OPINION
THE COURT APPEAL from orders of the Superior Court of Kings County. Jennifer Lee Giuliani, Judge. Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant. Colleen Carlson, County Counsel, and Rise A. Donlon, Deputy County Counsel, for Plaintiff and Respondent.
Before Levy, Acting P.J., Franson, J., and Meehan, J.
-ooOoo-
INTRODUCTION
A Welfare and Institutions Code section 300 petition was filed on behalf of I.G., the child of Martha R. (mother). Reunification services were not provided to mother. Mother filed a section 388 petition seeking reunification services, which the juvenile court denied. Mother contends the juvenile court abused its discretion when it denied her section 388 petition. We affirm.
References to code sections are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL SUMMARY
A section 300 petition was filed by the Kings County Human Services Agency (agency) on behalf of I.G on April 26, 2017, who was then 15 months old. The petition alleged that I.G. was at substantial risk of suffering, or had suffered, serious physical harm or illness because of the failure of mother to adequately supervise and protect the child. In support of this allegation, the petition alleged that mother engaged in a physical altercation against the maternal grandmother, while holding I.G. The petition also alleged that mother was arrested and remained in custody on charges of child endangerment, battery, public intoxication, and being under the influence of drugs, and mother cannot arrange for care and support for I.G. as the grandparents were unable to care for him.
At the April 27, 2017, detention hearing, I.G. was ordered detained. Custody of I.G. was removed from mother and the agency was charged with finding a suitable placement for I.G. The juvenile court noted that reasonable efforts had been made to locate the father, but his whereabouts were unknown. The combined jurisdiction and disposition hearing was set for June 1, 2017.
The jurisdiction report recommended that the juvenile court find the allegations of the petition to be true and that I.G. came within the provisions of section 300, subdivisions (b) and (g). The jurisdiction report noted that in 2007, mother's child L.R. was detained because of mother's substance abuse and her engaging in domestic violence; she failed to reunify with L.R., and her parental rights to L.R. were terminated. Also in 2007, mother's children Ra. and A.D. were detained for the same reasons, substance abuse and mother's acts of domestic violence. Mother failed to reunify with Ra. and A.D. and they were placed in a legal guardianship with the paternal grandparents.
In 2009, mother's children R.D. and C.D. were detained after mother was arrested for being under the influence of methamphetamine while driving with the children in the car. This dependency case alleged a history of substance abuse and engaging in domestic violence by mother. Reunification services were denied mother and the children were placed in a legal guardianship with the paternal grandparents.
In 2010, M.C. was removed from the custody of mother because mother tested positive for methamphetamine at M.C.'s birth. No reunification services were provided to mother and sole legal and physical custody of M.C. was awarded to the child's father.
In January 2016, a family maintenance case was opened for I.G. Mother completed services and the case was closed on September 7, 2016.
The jurisdiction report also noted mother's criminal history. She had at least seven convictions for being under the influence of a controlled substance; three counts of resisting arrest; possession of controlled substance paraphernalia; battery; vandalism; vehicle theft; theft of personal property; and three counts of violating Penal Code section 273a, willful harm or injury to a child.
The agency filed a separate disposition report on May 30, 2017, recommending that reunification services be denied mother based upon section 361.5, subdivision (b)(11). The disposition report noted that mother's parental rights to several other children had been terminated and mother had failed to make a reasonable effort to treat the problems that led to removal.
At the time the disposition report was prepared, mother was in jail. Mother claimed she had a "past problem with methamphetamine and alcohol." The disposition report again detailed mother's criminal record, her history with the agency, and the prior dependencies for mother's other children. The report noted that I.G.'s safety could not be assured if returned to his mother, in light of mother's extensive history of substance abuse and repeated failures to reunify with her children. Mother also had no housing where she could live with I.G. once released from jail.
Mother reported to the social worker that she was hoping to be accepted at Hannah's House inpatient treatment facility when released from jail. The social worker noted that mother previously had completed a course of treatment at this facility about six months ago, but relapsed and began using methamphetamine, marijuana, and alcohol.
The disposition report noted that I.G. was "adjusting well to his placement." I.G.'s care provider was willing to adopt I.G. if he was placed for adoption.
At the June 1, 2017, jurisdiction and disposition hearing, the juvenile court took judicial notice of the court records of the prior dependency cases in which mother was involved. Mother signed a waiver of rights form for this dependency case, and submitted the matter on the jurisdiction and disposition reports.
The juvenile court found that I.G. came within the provisions of section 300, subdivisions (b) and (g). The juvenile court found by clear and convincing evidence that mother failed to reunify with I.G.'s half siblings and mother had not made reasonable efforts to treat the problems that led to removal of the half siblings. The juvenile court ordered family reunification services were not to be provided to mother. The juvenile court ordered that a section 366.26 hearing be scheduled.
The juvenile court did not refer to the code section and subsection under which reunification services were denied mother; however, it is apparent from the language used that the juvenile court was relying upon section 361.5, subdivision (b)(10) because of the references to failure to reunify, as opposed to termination of parental rights as set forth in section 361.5, subdivision (b)(11).
At the section 366.26 hearing held on September 20, 2017, the juvenile court noted that a section 388 petition had been filed. The matters were set for a contested hearing on October 17, 2017.
At the October 17, 2017 hearing, the juvenile court noted that the agency filed opposition to the section 388 petition, recommending it be denied. As to the section 366.26 hearing, the recommendation from the agency was that parental rights be terminated and a permanent plan of adoption be selected. The parties stipulated that all evidence presented at the hearing could be considered for both the section 388 and section 366.26 matters. The parties also stipulated that clear and convincing evidence established that I.G. was adoptable.
Mother testified at the hearing that I.G. was born in January 2016 and resided with her until April of 2017, when she was incarcerated and I.G. was placed in foster care. Mother had not completed any programs while incarcerated or at Hannah's House, but she was "doing them currently." Outside of Hannah's House, mother was in child abuse prevention and batterer's intervention programs; she had completed about two and a half months of the one year programs. Mother acknowledged that she had been in the Hannah's House program before, but testified the difference was that she now is "able to recognize that I have a problem." Mother testified it was in I.G.'s best interests to "come back" to her because she was bonded with him and "working on" becoming a "successful parent." Mother claimed she had "changed" and was not just in the "process of changing."
Mother acknowledged that the child abuse prevention and batterer's intervention programs were court-ordered upon her release from jail. Of her eight children, mother no longer had custody of any of her children. Mother acknowledged five of her children had been removed by child protective services and none had been returned to her care.
Mother's first stint in Hannah's House ended when I.G. was about six months old. She "stayed clean" for about six months before she began using illegal drugs again, but felt this time she would not relapse.
Mother's counselor at Hannah's House testified that mother was "more self-aware" and "open to constructive criticism" during this stay, than in her previous stay in the program. The counselor opined that mother had "made a lot of progress," but "still has a long way to go."
Counsel for mother argued that mother should be provided "more time to finish the few things she has left to finish and then begin to have some kind of services to help her reunify."
Counsel for the agency argued mother showed "changing circumstances but not changed circumstances." Mother was asking the juvenile court to delay permanency for I.G. when there "is not a substantial amount of evidence" that such a delay was in I.G.'s best interests.
Counsel for the minor agreed with the agency. Minor's counsel opined that mother's "grip" on sobriety is "new and somewhat tenuous." Additionally, given mother's history and her relatively short period of sobriety, minor's counsel opined that mother should not be provided additional services and there was a lack of evidence that providing additional services would be in I.G.'s best interests.
The juvenile court found the evidence did not show changed circumstances; evidence showed mother was working "very hard in changing them." Given mother's history of substance abuse over the past 16 years and the fact mother "had lots of children removed," the juvenile court found mother's circumstances to be changing, but not changed. The juvenile court indicated that in light of this finding, it did not need to address I.G.'s best interests, but noted, "the Court does not have best interest evidence before it today."
The juvenile court denied the section 388 petition. The juvenile court found that termination of mother's parental rights would not cause detriment to I.G., terminated mother's parental rights, and ordered a permanent plan of adoption for I.G.
Mother filed a notice of appeal on October 20, 2017.
DISCUSSION
Mother contends the juvenile court abused its discretion when it denied her section 388 petition. We disagree.
Section 388
"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 (A.A.).)
"A petition for modification is 'committed to the sound discretion of the juvenile court, and the trial court's ruling should not be disturbed on appeal unless an abuse of discretion is clearly established.' " (In re A.R. (2015) 235 Cal.App.4th 1102, 1116-1117.)
"Not every change in circumstance can justify modification of a prior order. [Citation.] The change in circumstances must relate to the purpose of the order and be such that the modification of the prior order is appropriate. [Citations.] In other words, the 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." (A.A., supra, 203 Cal.App.4th at p. 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.) It is not enough for a parent to show an incomplete reformation or that he or she is in the process of changing the circumstances, which led to the dependency. "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.' " (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) "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 interest of the child." (Ibid.)
No Abuse of Discretion
" '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.' " (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 Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)
Reunification services were denied mother pursuant to section 361.5, subdivision (b)(10), which authorizes the denial of reunification services where a parent failed to reunify with a child's sibling or half sibling and has not subsequently made a reasonable effort to treat the problem that led to removal of the sibling or half sibling. Reasonable efforts must be more than lackadaisical. (K.C. v. Superior Court (2010) 182 Cal.App.4th 1388, 1393.)
If the juvenile court intended to or did rely on section 361.5, subdivision (b)(11) as referenced in the disposition report, the analysis is the same.
Mother had eight children; multiple children were removed from her custody by child services and mother failed to reunify with them; and mother did not have custody of any of her eight children at the time of the hearing on the section 388 petition. Mother had received family maintenance services when I.G. was born. Mother had a long history of substance abuse, engaging in acts of domestic violence, and placing her children at risk, all of which had been causes for removal of children from her custody.
As of the hearing on the section 388 petition, mother had not completed any programs to address the problems that gave rise to this, or earlier, dependency cases. Mother had approximately 10 more months before she would complete the relevant programs. Mother's counselor testified that while mother had made progress, she "still has a long way to go." Mother was asking to finish her programs—another 10 months—and then begin receiving services to reunify with I.G.
Mother provided no evidence, whatsoever, that her circumstances actually had changed, as opposed to being in the process of changing. Furthermore, mother offered no evidence as to why delaying permanency for I.G. until after she completed her programs and then completed services would be in the best interests of I.G. I.G. was "adjusting well to his placement" and I.G.'s care provider was willing to adopt I.G. if he was placed for adoption. Mother did not produce evidence of significant changed circumstances warranting a granting of the section 388 petition. (A.A., supra, 203 Cal.App.4th at p. 612.)
" '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.) Such is the showing made by mother, and the juvenile court did not abuse its discretion in denying mother's section 388 petition.
DISPOSITION
The orders denying mother's Welfare and Institutions Code section 388 petition, terminating her parental rights to I.G., and setting a permanent plan of adoption for I.G., are affirmed.