Opinion
B326566
09-27-2023
In re V.C., et al., Persons Coming Under the Juvenile Court Law. v. V.G., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Timothy M. O'Crowley, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. 21CCJP00396AB Nancy Ramirez, Judge. Affirmed.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Timothy M. O'Crowley, Principal Deputy County Counsel, for Plaintiff and Respondent.
BAKER, Acting P. J.
Based on a finding that V.G. (Mother) abused amphetamine, a juvenile court took dependency jurisdiction over Mother's daughters V.C. and Mar.A. (collectively, Minors). Initial efforts at reunification failed, and just before a hearing to consider termination of parental rights, Mother filed a changed circumstances petition arguing reunification services should be reinstated because she was making efforts to address her longstanding substance abuse issues. The trial court denied that petition, finding that Mother's circumstances were merely changing, not changed, and that, in any event, granting the petition would be contrary to Minors' best interests. We consider whether this ruling was an abuse of discretion.
I. BACKGROUND
A. The Dependency Petition and Jurisdiction Hearing The Los Angeles County Department of Children and Family Services (the Department) began investigating Minors' welfare two days after Mar.A. was born in January 2021. The hospital toxicology reports for both Mother and Mar.A. were positive for amphetamines.
In her interview with a Department social worker, Mother attributed the positive test result to her use of NyQuil or a nasal spray she purchased in Mexico. Although she admitted using methamphetamine in the past, Mother denied any current drug use. Mother also said her older daughter V.C. (then 11 years old) lived primarily with the maternal grandmother.
V.C. told a social worker she did not live with Mother because she was afraid of her. V.C. explained she had too many memories of Mother hitting her. V.C. said she enjoyed living with the maternal grandmother and the maternal aunt, and felt safe with them.
The maternal grandmother confirmed V.C. had been living with her for most of 2019 and 2020. Both the maternal grandmother and the maternal aunt reported Mother had been abusing drugs for years. In addition, both maternal relatives said Mother had a history of domestic violence with Mar.A.'s father.
The Department filed a dependency petition alleging Minors were at substantial risk of serious physical harm due, among other things, to Mother's history of substance abuse and her current use of methamphetamine. The juvenile court ordered Minors detained from Mother and released into the care of the maternal grandmother and the maternal aunt. In addition, the court ordered monitored visitation for Mother and directed the Department to provide Mother with referrals for individual counseling and voluntary drug testing.
The petition also alleged Minors were at risk due to the conduct of their respective fathers. Neither father is a party to this appeal.
Before an adjudication hearing to consider the dependency petition, a Department investigator re-interviewed V.C., Mother, and the maternal relatives who were caring for Minors. V.C., who in the estimation of the investigator appeared "more bonded" with the maternal grandmother and the maternal aunt than with Mother, expressed concern about returning to Mother's care. V.C. showed the investigator a video of Mother yelling at her and slapping her body. On a scale of 1 to 10, with 10 being the safest, V.C. rated living with the maternal grandmother and the maternal aunt a 10 and gave living with Mother a rating of 1.
In her interview with the Department investigator, Mother continued to attribute the positive test for amphetamine at the time of Mar.A.'s birth to ingredients in cold medication.Although she admitted using methamphetamine from the age of 21 to the age of 35 (she was 38 at the time dependency proceedings began) and still thought about ingesting it, Mother insisted she was currently "clean" and had been since 2017. Because she claimed to be drug-free, Mother agreed to enroll only in an outpatient treatment program. Although Mother agreed to participate in on-demand drug testing, she was a "no show" at both of her scheduled tests.
The Department advised the juvenile court that NyQuil's ingredients could not cause a false positive test for amphetamine.
The maternal aunt told the Department Mother began using methamphetamine in the late 1990s when she was a teenager. Both the maternal grandmother and the maternal aunt agreed that, beginning in approximately 2005, Mother entered a cycle of severe substance abuse, leading to treatment and rehabilitation, followed by relapse. The maternal aunt told the investigator that she could not recall the last time Mother was completely sober from methamphetamine.
At the adjudication hearing in April 2021, the juvenile court found it was "pretty clear that Mother has a substance abuse problem" and sustained the drug abuse allegation against her. The court ordered Minors placed with the maternal grandmother and the maternal aunt. As part of her court-approved reunification plan, Mother was required to participate in a full drug program with aftercare lasting at least six months, to submit weekly to random or on-demand drug testing, and to participate in a 12-step program with a court card and sponsor.
B. Termination of Reunification Services
During the first six-month review period, Mother was a "no show" at 20 of 23 scheduled drug tests. On the three occasions when she did submit to a scheduled drug test, the results were negative. Mother advised the Department she was participating in other court-ordered programs but did not provide verification of her enrollment in those programs. The Department also reported Mother was inconsistent in her visitation with Minors. At the six-month review hearing, the juvenile court continued reunification services for Mother and set the matter for a 12-month review hearing.
During the second six-month review period, Mother remained inconsistent in her drug testing: out of 30 required tests, Mother was a "no show" 22 times (on the eight occasions when she did test, her results were negative). In addition, Mother missed a number of scheduled meetings with a Department social worker. The Department also reported Mother remained inconstant in her visitation with Minors and that when she did visit she was either inattentive or engaged in inappropriate behavior. Although Mother eventually produced evidence of enrollment in various court-ordered programs, including two outpatient drug treatment programs and an online parenting program, the Department assessed the risk to Minors as "high" if they were returned to Mother's custody and care.
Meanwhile, Minors were doing well in the care of their maternal relatives. V.C. told the Department she was happy that she and her sister were living with their maternal relatives. Counselors reported Mar.A. was "extremely fortunate" to have the "love, attentiveness, [and] nurturing" of the maternal grandmother and maternal aunt.
At the 12-month review hearing, held in May 2022, the juvenile court found Mother's progress toward alleviating the conditions that necessitated placement was not substantial. The court terminated reunification services, ordered the Department to provide permanent placement services to Minors, and set a permanency planning hearing.
Following termination of reunification services, the Department determined the maternal grandmother and maternal aunt, who had expressed an interest in providing permanent stability to Minors through adoption, would be suitable adoptive parents. Minors were "happy" and "thriv[ing]" under their care. V.C., who enjoyed a "strong bond" with the maternal grandmother and maternal aunt, was "excited" about the prospect of adoption. Despite Mar.A.'s young age, it was evident to Department observers that the child was "well attached" to the maternal grandmother and maternal aunt.
During the post-reunification period, Mother's visits with Minors were initially "sporadic" but became more consistent over time. The Department reported, however, that Mother was not nurturing with either child during visits and frequently argued with V.C.
C. Mother's Section 388 Petition
In November 2022, six months after the termination of reunification services, Mother filed a Welfare and Institutions Code section 388 change of circumstances petition requesting reinstatement of those services. Mother represented she had completed a parenting course, was "halfway" through her current substance abuse program, and was participating in individual counseling and a domestic violence class. Mother sought an additional six months of reunification services to address and resolve the "negative issues" affecting her relationship with V.C. and to provide an opportunity to reunify with Mar.A. The juvenile court ordered an evidentiary hearing on Mother's petition.
Statutory references that follow are to the Welfare and Institutions Code.
In support of her petition, Mother attached four exhibits: a certificate of completion for an online nonviolent parenting class dated May 10, 2022; a letter dated September 17, 2022, confirming Mother's enrollment in an outpatient substance abuse treatment program from June 2021 to August 2022; a letter dated November 11, 2022, confirming Mother's current enrollment in a six-month outpatient substance abuse treatment program that began in September 2022; and a letter dated November 10, 2022, confirming Mother's current enrollment in a domestic violence education course.
In advance of that hearing, the Department reported it had been unable to verify Mother's progress or participation in her parenting class, outpatient drug programs, and domestic violence class. The Department also noted Mother's supporting letters from the outpatient drug programs did not provide any information about Mother's level of participation or the results of any drug testing.
In a follow-up interview with a Department investigator, Mother admitted she suffered a relapse in September 2022 while pregnant with Mat.A., Minors' brother. In a last minute information report filed the day of the hearing on Mother's section 388 petition, the Department reported the results of five drug tests scheduled between November 2022 and January 2023. Mother was a "no show" for the first test, but tested negatively on each of the four subsequent testing dates.
On September 11, 2022, prior to Mat. A's birth, Mother tested positive for methamphetamine. Two months later, on November 9, 2022, pursuant to a juvenile court order, Mat.A. was removed from his parents' custody.
The hearing on Mother's section 388 petition was held in January 2023. Mother testified and admitted all three of her children were no longer in her care because of "wrong decisions" she made regarding drug use. She admitted further that while she had been enrolled in several substance abuse programs during the course of the dependency proceedings, she had yet to complete one; she was, however, currently enrolled in a program that she was scheduled to complete in February 2023. Mother testified she last used methamphetamine in September 2022 and all her drug tests since then had been negative. Mother additionally related that she had been in individual counseling for over a year, had completed a parenting course, and had voluntarily enrolled in a domestic violence course because her relationship with the father of Mar.A. and Mat.A. was "toxic." Mother conceded her relationship with V.C. had been "rocky," but Mother asserted their bond was getting "stronger and better" due to the insight she gained through counseling and her parenting course.
After hearing argument from counsel, the juvenile court denied Mother's section 388 petition. The court acknowledged Mother had taken a number of recent steps in the "right direction" but found the circumstances giving rise to dependency jurisdiction had "not changed yet." There was, in the court's view, "no proof" Mother was sober. Over the course of two years, Mother had not been able to complete a single drug treatment program and, despite some recent negative drug tests, the record showed a long line of missed drug tests. The court also found additional reunification services would not be in Minors' best interests: V.C. had a "deep[-]se[at]ed lack of trust" in Mother and did not want to reunite with her, and Mar.A. had never lived with Mother because her primary caregivers had been the maternal grandmother and maternal aunt.
On the same day it denied Mother's section 388 petition, the juvenile court also held a permanency planning hearing and ordered parental rights to Minors terminated.
II. DISCUSSION
The juvenile court did not err in denying Mother's section 388 petition (and she presents no independent challenge to the parental rights termination order). Mother's recent series of negative test results did not demonstrate a material change in circumstances in view of her long history of drug abuse, many missed drug tests, recent relapse while pregnant with Mat.A., and failure after two years of dependency jurisdiction to complete critical elements of her case plan. Moreover, the juvenile court was well within its discretion to conclude adoption by the maternal relatives, with whom Minors were strongly bonded, and not another attempt at reunification with Mother, with whom there was only a tenuous bond, was in Minors' best interests.
Section 388 "accords a parent the right to petition the juvenile court for modification of any of its orders based upon changed circumstances or new evidence. [Citations.] To obtain the requested modification, the parent must demonstrate both a change of circumstances or new evidence, and that the proposed change is in the best interests of the child. [Citations.]" (In re Alayah J. (2017) 9 Cal.App.5th 469, 478; see also In re Stephanie M. (1994) 7 Cal.4th 295, 317 [when a section 388 petition is filed after reunification services have been terminated or bypassed and a permanency planning hearing has been set, the juvenile court's overriding concern is the child's best interest].)
"In determining whether the petitioning party has carried his or her burden, 'the court may consider the entire factual and procedural history of the case.' [Citation.]" (In re N.F. (2021) 68 Cal.App.5th 112, 120.) Courts frequently consider "[1] the seriousness of the problem leading to the dependency and the reason for its continuation; [2] the strength of the parent-child and child-caretaker bonds and the time the child has been in the system; and [3] the nature of the change of circumstance, the ease by which it could be achieved, and the reason it did not occur sooner." (In re Amber M. (2002) 103 Cal.App.4th 681, 685.) Our review on appeal is for abuse of discretion (N.F., supra, at 120), and there was no such abuse by the juvenile court in this case.
Mother's cited progress in addressing her substance abuse was both modest and uncertain. Mother's latest relapse with methamphetamine, which occurred while she was pregnant with her third child, occurred less than three months before she filed her section 388 petition. In addition, the most recent drug test evidence was unreliable evidence of changed circumstances- showing one missed test and four negative tests only over a short period of less than two months. Moreover, at the time of the hearing on her petition, Mother had yet to complete core components of her case plan, namely a drug treatment program and a 12-step program. Where, as here, a petitioning parent suffers from a prolonged struggle with substance abuse, a showing of materially changed circumstances requires more than a relatively brief period of sobriety or participation in yet another program. (See, e.g., In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081 [parents' most recent efforts at sobriety "were only three months old" and did not demonstrate changed circumstances]; Amber M., supra, 103 Cal.App.4th at 686 [mother's 372 days of sobriety insufficient to show changed circumstances in light of her many years of substance abuse and previous relapses]; In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9 ["It is the nature of addiction that one must be 'clean' for a much longer period than 120 days to show real reform"].)
Mother also had no strong bond with Minors. V.C. complained of prior emotional and physical abuse at Mother's hands and continued to believe living with her would be unsafe. V.C. had been living primarily with her maternal relatives for the last four years (two years preceding the commencement of dependency proceedings and two years after) and was excited about the prospect of being adopted by them and did not want to reunify with Mother. Mother also had no strong bond with Mar.A., who spent almost her entire life in the care of someone other than Mother. In contrast to the weak or insubstantial bond between Mother and her daughters, the record showed Minors were strongly bonded to the maternal grandmother and maternal aunt and were thriving in their care. The juvenile court therefore did not abuse its discretion in finding additional reunification services would not be in Minors' best interests. (Amber M., supra, 103 Cal.App.4th at 686 [affirming denial of mother's section 388 petition because her children had been out of her care for two years and were attached to their caregivers]; C.J.W., supra, 157 Cal.App.4th at 1081 [affirming denial of parents' section 388 petitions because "there was no showing whatsoever of how the best interests of these young children would be served by depriving them of a permanent, stable home in exchange for an uncertain future"].)
DISPOSITION
The juvenile court's orders denying Mother's section 388 petition and terminating parental rights are affirmed.
We concur: MOOR, J. KIM, J.