Opinion
B313270
06-16-2022
In re A.H., a Person Coming Under the Juvenile Court Law. v. SHAMIKA H., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Jane E. Kwon, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 19CCJP05773, Marguerite D. Downing, Judge. Affirmed.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Jane E. Kwon, Deputy County Counsel, for Plaintiff and Respondent.
FEUER, J.
Shamika H. (Mother) appeals from the juvenile court's order denying her Welfare and Institutions Code section 388 petition, in which she requested then-two-year-old A.H. be returned to her physical custody or placed with Mother's maternal cousin in Texas, or alternatively, the court provide Mother with additional family reunification services and unmonitored visits. Mother contends the juvenile court erred in denying her section 388 petition without a hearing. We affirm.
Further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Prior Appeal
On August 9, 2019 the Los Angeles County Department of Children and Family Services (Department) received a referral alleging that the prior day Mother drove with then-10-month-old A.H. while under the influence of methamphetamine and marijuana, and she was involved in a car accident in which the other driver was at fault. On September 5 the Department filed a dependency petition on behalf of A.H. pursuant to section 300, subdivision (b)(1).
On January 9, 2020 the juvenile court sustained the allegations Mother had a history of substance abuse including cocaine and marijuana and was a current abuser of methamphetamine and marijuana. Mother tested positive for methamphetamine and marijuana on August 8, 2019, and she tested positive for marijuana on August 13 and 27, 2019. The court also sustained the allegations that Mother placed A.H. in a detrimental and endangering situation by driving with A.H. while under the influence of methamphetamine and marijuana, and Mother was involved in a car accident with A.H. in the car.
At the disposition hearing, the juvenile court declared A.H. a dependent of the court and removed her from Mother's physical custody. The court granted Mother three monitored visits a week for three hours each visit. The court ordered Mother to participate in a full drug program with aftercare, weekly random or on demand drug testing, a 12-step program with a court card and sponsor, parenting classes, and individual counseling to address case issues including substance use.
Mother appealed the jurisdiction findings and disposition order, and we affirmed. (In re A.H. (Dec. 11, 2020, B304199) [nonpub. opn.].)
B. The 12-month Review Hearing
At the December 14, 2020 12-month review hearing (§ 366.21, sub. (f)), the juvenile court found Mother was not in substantial compliance with her case plan. The court terminated Mother's family reunification services and set a selection and implementation hearing (§ 366.26) for April 13, 2021, which was later continued to June 14. The court also denied Mother's request for a bonding study.
C. Mother's Section 388 Petition
On April 12, 2021 Mother filed a section 388 petition requesting a home-of-parent order, or alternatively, reinstatement of family reunification services, placement with Mother's maternal cousin, and unmonitored visitation. Mother stated in the petition, "Mother has satisfactorily completed an inpatient substance abuse program, wherein she participated in drug testing, individual counseling and therapy, 12 step meetings etc."
In support of her petition, Mother attached a certificate of completion from the Clare/Matrix Women's Treatment Program, indicating she completed 28 days of the program, and a letter from Alexander Loera, the program's director. Loera reported Mother was admitted to the treatment program on March 8, 2021 and completed the program on April 5. The program included relapse prevention, relationship classes, morning meditation, reflections, behavioral awareness, self-esteem classes, and 12-step meetings.
The petition asserted the requested home-of-parent order would "be better" for A.H. because "Mother is ready to provide the child with a safe and nurturing home." Further, Mother "has regular visits with the child and maintained a parental role in the child's life. The child would benefit from being raised by her biological mother and having access to her biological family. In regards to placement with maternal cousin[, ] the child would benefit from maintaining ties with maternal family, and being raised by maternal family as opposed to fostercare."
On April 13, 2022 Mother filed an amended petition that added an allegation that A.H. had been abused in her current placement. Mother does not argue on appeal that the juvenile court should have granted a hearing based on this allegation.
On April 19, 2021 the juvenile court set a hearing on Mother's section 388 petition for April 29.
D. The Department's Section 388 Report
In its April 28, 2021 section 388 report, the Department recommended the juvenile court deny Mother's petition. Since A.H.'s detention in September 2019, Mother had enrolled in 10 drug treatment programs but did not complete any until April 2021. From January 2020 to January 2021, the Department directed Mother to submit to drug testing on 53 occasions. Mother missed 50 drug tests and tested positive for drugs on three occasions-a positive test for methamphetamine and marijuana metabolites on April 22, 2020 and positive tests for marijuana metabolites on April 28 and June 25, 2020. According to Mother's former counselor at the Tarzana Treatment Center, Mother tested positive for methamphetamine and THC (marijuana) on September 29, 2020, and she tested positive for THC on October 7, 2020. Another drug treatment program reported Mother tested positive for methamphetamine and marijuana when she entered the program in January 2021. Mother left that program after 20 days because she missed A.H.
Mother left the Tarzana Treatment Center against medical advice because she felt the program was not addressing her concerns about A.H. in a timely manner. During her stay, Mother attended daily group sessions, but she refused to participate.
Loera reported Mother chose the 30-day treatment program (instead of the 60-day or 90-day program), and she completed the program in 28 days by taking three to four classes per day. Mother did not enroll in aftercare services. Mother's therapist was a trainee, who practiced under Loera's therapist license. The individual counseling sessions addressed "coping skills, knowledge of drug use, as well as underlying issues regarding drug use." Loera believed Mother was drug tested by the program once or twice during her enrollment, and the test results were negative, but the test involved simply dipping a stick in the client's urine.
Regarding Mother's request for a home-of-parent order, the Department was unable to assess Mother's home because she did not update her home address. Further, placement with M.L in Texas was not possible because the request for an Interstate Compact for Placement of Child (ICPC) "was denied due to no communication with the applicants." As for Mother's request for additional reunification services, Mother failed to comply with her case plan despite receiving 12 months of family reunification services. Mother did not submit to weekly drug testing, and she failed to enroll in court-ordered aftercare and individual counseling to address her mental health issues. The Department did not believe it was in A.H.'s best interest for Mother to have unmonitored visits. Although Mother loved A.H. and at times engaged well with her during monitored visits, Mother continued to have "aggressive outbursts" during visits, fed A.H. excessive junk food, and made repeated unfounded complaints that A.H. was being abused by her caregiver.
E. Denial of Mother's Section 388 Petition
Mother's attorney appeared at the April 29, 2021 hearing (by Web-Ex), but Mother did not answer her phone when her attorney tried to connect her to the hearing. The juvenile court stated it had read the Department's section 388 report, and based on the report it denied the section 388 petition without a hearing. Mother's attorney noted an objection for the record.
Mother timely appealed.
DISCUSSION
Mother contends the juvenile court abused its discretion by denying Mother's section 388 petition without a hearing despite Mother's prima facie showing for relief based on her successful completion of a substance abuse program and positive visitation with A.H. The Department argues Mother failed to show changed circumstances given her pattern of entering and leaving drug treatment programs without completing them (except for the most recent one), failure to enroll in aftercare services, missed and positive drug tests, and counseling with an unlicensed trainee. Further, Mother's showing that she had completed a 28-day program (in lieu of a 30- or 60-day program) was not sufficient to demonstrate it would be in A.H.'s best interest to place her in Mother's home or otherwise modify the prior orders. Although Mother made a prima facie showing of changed circumstances (albeit minimal), we agree with the Department that Mother did not show it would be in A.H.'s best interest for A.H. to be returned to Mother, or for Mother to be provided additional reunification services and unmonitored visitation. Nor did Mother show placement with her maternal cousin would be in A.H.'s best interest.
"Section 388 provides for modification of 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 Malick T. (2022) 73 Cal.App.5th 1109, 1122; accord, In re Jasmon O. (1994) 8 Cal.4th 398, 414-415; In re Stephanie M. (1994) 7 Cal.4th 295, 317.) "[Section 388] petitions are to be liberally construed in favor of granting a hearing to consider the parent's request. [Citations.] The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310; accord, In re R.A. (2021) 61 Cal.App.5th 826, 836; see Cal. Rules of Court, rule 5.570(a) ["A petition for modification must be liberally construed in favor of its sufficiency."].)
"'A "prima facie" showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited.' [Citation.] 'Whether [the petitioner] made a prima facie showing entitling [the petitioner] to a hearing depends on the facts alleged in [the] petition, as well as the facts established as without dispute'" by the court's records. (In re B.C. (2011) 192 Cal.App.4th 129, 141; see In re Justice P. (2004) 123 Cal.App.4th 181, 189 ["In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case."].) "[T]he court may summarily deny the motion if the petition fails to make a prima facie showing (1) of a change of circumstances or new evidence requiring a changed order, and (2) the requested change would promote the best interests of the child." (In re Justice P., at pp. 188-189; accord, In re R.A, supra, 61 Cal.App.5th at p. 836 ["A juvenile court may summarily deny a section 388 petition without an evidentiary hearing, but "a petition must be liberally construed in favor of its sufficiency [citation] and a hearing may be denied only if the application fails to reveal any change of circumstance or new evidence which might require a change of order."].)
When a section 388 petition is filed after reunification services have been terminated, the focus is on the child's best interest. (In re Stephanie M., supra, 7 Cal.4th at p. 317 ["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' [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child."]; In re I.B. (2020) 53 Cal.App.5th 133, 159.) "'We review the juvenile court's summary denial of a section 388 petition for abuse of discretion.'" (In re R.A., supra, 61 Cal.App.5th at p. 837; accord, In re Anthony W. (2001) 87 Cal.App.4th 246, 250; see Stephanie M., at p. 318.)
Mother's completion of parenting classes and a drug treatment program demonstrated changed circumstances. But Mother failed to make a prima facie showing it was in A.H.'s best interest to return her to Mother's physical custody. A.H. was only one year old when she was detained from Mother, and she was only 15 months old when she was subsequently removed from Mother's physical custody in January 2020. By the time of the section 388 petition, A.H. was two years old and had been a dependent of the court for as long as she had lived with Mother. A.H. had been placed with her caregiver, S.M., since October 3, 2019, and A.H. had a close relationship with S.M. and S.M.'s three children. S.M. was very patient and affectionate with A.H., and she had a good understanding of A.H.'s needs and development. A.H.'s strong bond with S.M. would be disrupted by returning A.H. to Mother. (See In re Kimberly F. (1997) 56 Cal.App.4th 519, 531 ["the disruption of an existing psychological bond between dependent children and their caretakers is an extremely important factor bearing on any section 388 motion"].) Further, the Department was unable to assess Mother's home because she did not inform the Department of her current address.
Most significantly, Mother's showing of completion of a 28-day drug treatment program was insufficient to make a prima facie showing that granting the petition was in A.H.'s best interest in the absence of evidence Mother had submitted to Department-approved drug testing and enrolled in aftercare. As discussed, from January 2020 to January 2021 Mother missed 50 drug tests and tested positive for drugs on five occasions. Just three months before the section 388 hearing (in January 2021), Mother tested positive for methamphetamine and marijuana. Although Mother tested negative for drugs once or twice at the Clare/Matrix program between March and April 2021, the program did not provide laboratory results for drug tests, instead obtaining testing results by dipping a stick in the client's urine.
Mother also failed to make a prima facie showing it would be in A.H.'s best interest to place her with M.L. in Texas. To the contrary, placement of A.H. with M.L. was not possible because the ICPC request was denied.
With respect to Mother's request for unmonitored visits, the Department acknowledged Mother loved A.H. and at times engaged well with her during monitored visits. But Mother was unable to control her anger and lashed out at others during her visits with A.H., which the social worker observed made A.H. anxious. In addition, Mother made unfounded complaints to the social workers and law enforcement agencies about neglect and abuse of A.H. by her caregivers, which subjected A.H. to multiple unnecessary medical exams. A.H. appeared uncomfortable when Mother removed A.H.'s clothes and inspected her "private areas" to look for signs of physical and sexual abuse. In the month before the section 388 hearing (in March 2021), Mother failed to show up for any visits with A.H., although this could have resulted from her participation in the substance abuse program.
The section 388 report noted, "Since the last court date mother's visits have been sporadic and this may be due to her frequent enrollment in programs and the respective program's 30-day assessment before visitation can be granted."
Mother likewise failed to make a prima facie showing that additional reunification services beyond the 12 months she had received would be in A.H.'s best interest. A.H. was well adjusted in her placement with S.H., and reinstating Mother's family reunification services would have prolonged the uncertainty of A.H.'s placement and denied her stability and permanency. (See In re Josiah Z. (2005) 36 Cal.4th 664, 674 ["'There is little that can be as detrimental to a child's sound development as uncertainty over whether he is to remain in his current "home," under the care of his parents or foster parents, especially when such uncertainty is prolonged.'"].) Mother did not make a sufficient showing to the contrary, especially given her failure to show she was now sober.
DISPOSITION
The order denying Mother's section 388 petition is affirmed.
We concur: PERLUSS, P. J., SEGAL, J.