Opinion
B297532 B298236
02-27-2020
In re J.C., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.M., Defendant and Appellant.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant. Tarkian & Associates, Arezoo Pichvai, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. DK18477) APPEAL from orders of the Superior Court of Los Angeles County, Robin Kesler, Juvenile Court Referee. Affirmed. Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant. Tarkian & Associates, Arezoo Pichvai, for Plaintiff and Respondent.
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J.M. (mother), the mother of now-five-year-old J.C., appeals from a juvenile court order denying her Welfare and Institutions Code section 388 modification petition, contending the court abused its discretion by denying the petition without a hearing and erred in finding she failed to show her relationship with the child outweighed the benefits adoption would bring. We affirm.
BACKGROUND
The family consists of mother, Joseph C. (father), and J.C., who was one year old when these dependency proceedings began, and is now five. Mother and J.C., but not father, resided with R.M., a maternal aunt, and A.M., a maternal grandfather. Mother's relatives refused to permit father in the home because he abused drugs.
On July 21, 2016, the Department of Children and Family Services (DCFS or the department) received a report of a domestic violence incident in the home involving mother and father, who were reported to be unemployed and recently homeless, as mother had just left the grandfather's home with the baby, intending to travel to San Francisco without money or any plan for a residence.
A social worker and sheriff's deputies intercepted mother, father, and the minor at a Greyhound station. Mother admitted they had no money but were leaving for San Francisco, and stated that people from the government were watching and following them, with assistance from the sheriff's department. Mother denied she used drugs other than medical marijuana, and denied any domestic violence between her and father. Father, who was under the influence of an unknown intoxicant, admitted he had a history of methamphetamine use but denied any recent drug use. When the social worker attempted to place J.C. into protective custody, mother clung to the child, shouted at the social worker and deputies, struck a wall with her closed fist, and pushed father away when he tried to intercede. The social worker ultimately placed the child back in the home of R.M., the maternal aunt.
On July 26, 2016, DCFS filed a petition pursuant to Welfare and Institutions Code section 300, subdivision (b), alleging mother and father were longtime drug users, and mother had mental and emotional problems that endangered J.C. The court ordered the child detained with the maternal aunt and granted mother monitored visits.
Undesignated statutory references will be to the Welfare and Institutions Code.
A month later, mother entered an inpatient drug treatment program offering alcohol and drug education classes, relapse prevention, anger management counseling, parenting classes, individual and group counseling, and domestic violence education. Mother denied having any mental health issues but admitted using methamphetamine and marijuana on and off for the last approximately five years, but was now four days sober.
On September 15, 2016, the court sustained the petition, declared J.C. a dependent, ordered reunification services and counseling for mother, and granted her monitored visits for a minimum of six hours a week.
For the next two years, mother mostly complied with the case plan. She completed an inpatient drug treatment program; tested negative for drugs; participated reluctantly and inconsistently in individual counseling; and completed relapse prevention, Life Skills, anger management, and parenting classes. Her visits with J.C. went well and were accordingly liberalized, and she ultimately moved back into the maternal aunt's house with the child, who was happy, comfortable, and closely bonded to mother as well as the maternal aunt and maternal grandfather. Mother enrolled in a community college and took child development classes two days a week.
But in July 2018, mother relapsed into alcohol and marijuana abuse and began acting erratically and sometimes violently in J.C.'s presence. During one incident in which police were called, mother got into a "slight shoving match" with the officers while holding the child. Mother left the maternal aunt's home with J.C. for a week to stay at father's house, sometimes leaving the child in his sole care.
On July 12, 2018, the court ordered J.C. removed from mother's custody. When told of the order, mother shouted at a social worker and stated she was going to leave with the child, and DCFS would never find her. Mother regressed to her habit of screaming and becoming physically aggressive while J.C. was present and defying attempts by DCFS and the police to protect the child. The court terminated J.C.'s placement with mother and again ordered her detained, with monitored visitation. Over the next several months, mother failed to participate meaningfully in reunification services and tested positive for marijuana.
On October 31, 2018, the court terminated family reunification services.
Three months later, on February 8, 2019, mother filed a section 388 petition for modification of the court's order terminating reunification services. She stated she had enrolled in anger management classes, where she learned techniques to control her anger, and was participating in individual therapy that had changed her perspective on life. She had enrolled in a drug program, tested negative for drugs, and participated in parenting and domestic violence classes. Mother requested that J.C. be returned to her care and family reunification services resumed.
For the hearing on mother's petition, DCFS reported that the maternal aunt and grandfather wished to provide a permanent home for J.C. through legal guardianship. The child was happy and comfortable in their home and emotionally attached to them, and she stated that she loved them. Mother was employed part-time while attending school, and maintained consistent visitation with the child, and was thought by her relatives to be a good, devoted parent. She assisted in feeding, changing, bathing, and putting the child to sleep.
However, mother would also at times become upset over the circumstances surrounding her separation from J.C., and blame her relatives, at which times the maternal grandfather would ask that she leave the home.
DCFS recommended that mother's section 388 petition be denied.
On March 27, 2019, the court held a hearing on mother's petition. Mother testified she was successfully participating in counseling and an outpatient drug treatment program, and now had tools to prevent her from using drugs. She testified she visited J.C. three or four times a week for up to six hours a visit, during which visits they would play and talk, and mother would cook for and feed the child. J.C. would hug and kiss her and tell mother she missed her. Mother testified she had changed her "attitude," and stated, "I can think before I act." She blamed herself for J.C. being taken from her care, stating that although she was not using drugs at the time, and was going to school, she was seeing father, who she said "is not healthy."
The court noted that mother had regained custody of J.C. for approximately one year before she "relapsed back into a domestic violence relationship. She relapsed back in her own anger management issues. She also relapsed in regards to using drugs." The court found that mother was "changing," but stated that "the acting out in front of your daughter with the caretakers is detrimental to your daughter. And I hope you learn to moderate your anger further so that does not happen in the future."
The court found that granting mother's section 388 petition for modification would not be in J.C.'s best interest, but stated, "The court certainly hopes that you'll continue with your programs. We are only looking at a legal guardianship. That if you complete your programs, continue to visit as you've been, and demonstrate appropriate behavior in front of your daughter, you're more than welcome to file an additional 388 when that has occurred."
The court denied mother's 388 petition, from which order she now appeals.
After the court's order, mother ceased visiting J.C. consistently and resumed her relationship with father. She returned to shouting at the maternal aunt and blaming her for the child's removal. And on May 14, 2019, mother was arrested for domestic violence.
At the permanency hearing on May 28, 2019, the court granted legal guardianship to the maternal aunt and grandfather, and terminated jurisdiction.
Mother appealed from these orders as well. We consolidated the two appeals.
DISCUSSION
I. Mother's Section 388 Petition was Properly Denied
Mother contends the court abused its discretion in denying her section 388 petition, arguing that her proactive approach toward remedying her "flaws" during the three months between termination of reunification services and her filing the petition established changed circumstances sufficient to modify the custody arrangement. We disagree.
A parent may petition the juvenile court for modification of a prior dependency order. (§ 388, subds. (a), (c).) To obtain the modification, the petitioner must show by a preponderance of the evidence that there has been a change of circumstances sufficient to warrant the changed order, and also that the new order would be in the child's best interests. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532-535.) We review the juvenile court's denial of a section 388 petition for abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) "We must uphold the juvenile court's denial of [a] section 388 petition unless we can determine from the record that its decisions ' "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." ' " (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)
Here, mother showed with her petition that she had completed a drug program and was participating in counseling and anger management classes. But two years prior, she had completed a different drug program, and had completed anger management and parenting classes and participated extensively in domestic violence counseling. Yet a year later she completely relapsed, again endangering the minor under circumstances almost identical to those that had led to the initial referral. In short, mother provided no evidence distinguishing her current circumstances from past circumstances that proved transitory. Although we laud her attendance in drug counseling, anger management classes, and domestic violence counseling, the trial court was wisely cautious.
We have no trouble concluding that the juvenile court acted well within its discretion in finding mother had shown, in the three months between the court's termination of reunification services and her filing a section 388 petition, only changing, not changed, circumstances. Therefore, mother's petition was properly denied.
II. The Court Properly Granted Legal Guardianship
Mother contends the juvenile court erred when it selected a permanent plan for J.C. and terminated jurisdiction. The entirety of her argument is that she and J.C. "were entitled to the protection of their relationship through the juvenile court refraining from selecting a permanent plan and terminating jurisdiction." We disagree.
Once reunification services have been terminated, " '[f]amily preservation ceases to be of overriding concern . . . . Then, the focus shifts from the parent's interest in reunification to the child's interest in permanency and stability.' " (In re Richard C. (1998) 68 Cal.App.4th 1191, 1195.)
Section 366.26 governs a juvenile court's selection and implementation of a permanent plan for a dependent child. Subdivision (c)(1)(A) of that section provides that if the court determines it is likely the child will be adopted, it shall terminate parental rights unless "[t]he child is living with a relative who is unable or unwilling to adopt the child . . . but who is willing and capable of providing the child with a stable and permanent environment through legal guardianship, and the removal of the child from the custody of his or her relative would be detrimental to the emotional well-being of the child." (§ 366.26, subd. (c)(1)(A).)
Pursuant to section 366.3, subdivision (a)(3), following establishment of legal guardianship in a relative, the court shall terminate its dependency jurisdiction and retain jurisdiction over the child as a ward of the guardianship unless it finds exceptional circumstances dictate otherwise. (§ 366.3, subd. (a)(3).) We review a court's order placing a child in legal guardianship and terminating its jurisdiction for abuse of discretion. (In re K.D. (2004) 124 Cal.App.4th 1013, 1018.) "A reviewing court will not disturb a court's ruling in a dependency proceeding ' " 'unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.' " ' " (Ibid.)
Mother argues the court erred in granting legal guardianship over J.C. because mother's and J.C.'s relationship is "entitled to protection," in service of which "every effort must be made."
That was so for a time. When a child is removed from a parent's custody the parent is entitled to 12 months of reunification services, with the possibility of six additional months. (§ 361.5.) There is a statutory presumption that the child will be returned to parental custody during reunification, and the state must prove at up to four hearings—the dispositional- and 6-, 12- and 18-month review hearings—first that removal was necessary and then that reunification services were provided but return would nevertheless be detrimental to the child. (§§ 361, subd. (b), 366.21, subds. (e) & (f), 366.22, subd. (a).)
During this process the parent has the assistance of a social worker and an attorney and the continuing right to petition for modification of the juvenile court's orders. (§ 388.)
If the state proves that after all of this the child may not safely be returned to the parent, "the focus shifts to the needs of the child for permanency and stability" (In re Marilyn H. (1993) 5 Cal.4th 295, 309), and the juvenile court must develop a permanent plan that will protect the child's " 'compelling right[]' " to a placement " 'that allows the caretaker to make a full emotional commitment to the child.' " (In re Celine R. (2003) 31 Cal.4th 45, 52-53.)
Here, it is undisputed that family preservation has failed. J.C. was removed from mother's custody four years ago, then returned, then removed again. Mother has had the benefit of years of reunification services, but now finds herself in a position arguably retrograde from where she started. Throughout this process, which has occupied four-fifths of her life, J.C. has resided with a stable, loving family to which she is strongly attached and which has met all of her needs.
As a matter of law, it is time for J.C.'s interests in permanency and stability to take precedence over her relationship with mother.
DISPOSITION
The juvenile court's orders are affirmed.
NOT TO BE PUBLISHED
CHANEY, J. We concur:
ROTHSCHILD, P. J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.