Opinion
B301229
04-30-2020
In re Al.M., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. M.S., Defendant and Appellant; Al.M., et al., Appellants.
Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant M.S. Nicole Williams, under appointment by the Court of Appeal, for Appellants Al.M. and Am.M. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Navid Nakhjavani, Principal 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. DK09621) APPEAL from order of the Superior Court of Los Angeles County, Philip L. Soto, Judge. Affirmed. Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant M.S. Nicole Williams, under appointment by the Court of Appeal, for Appellants Al.M. and Am.M. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Navid Nakhjavani, Principal Deputy County Counsel, for Plaintiff and Respondent.
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Al.M. (born in 2012) and Am.M. (born in 2015) (collectively, the children) are daughters of appellant M.S. (Mother). Mother received three years of family maintenance and family reunification services to address her substance abuse problems and the related risks to her children. A year after these services were terminated, on the eve of a Welfare and Institutions Code section 366.26 permanency planning hearing, the children filed petitions to reinstate reunification services for Mother, based on new information regarding Mother's boyfriend. On appeal, Mother and the children challenge the court's denial of the children's petitions at the permanency planning hearing.
All further statutory references and citations are to the Welfare and Institutions Code.
Although we disagree with the reasoning provided by the court during the hearing, the court did not abuse its discretion in concluding that reinstating reunification services would not be in the best interest of the children. Accordingly, we affirm.
FACTUAL AND PROCEDURAL HISTORY
The children came to the attention of respondent, the Department of Children and Family Services (DCFS) in February 2015, when Am.M. was born drug-exposed. DCFS filed a section 300 petition on behalf of both newborn Am.M. and her older sister Al.M., based on Mother's use of cocaine, including while pregnant with Am.M.
A. Period of Voluntary Services and Family Maintenance Services
In April 2015, DCFS dismissed the petition as part of a section 301 contract with the family, under which Mother was to participate in a drug treatment program, submit to drug testing, complete parenting classes, and maintain regular contact with the children's social worker. In April 2016, after Mother had repeatedly failed to comply with the drug testing requirements of the section 301 contract, DCFS filed another section 300 petition, based on Mother's substance abuse and the failure of prior remedial services. The court sustained the petition, ordered the children placed in the home of Mother and the father, and ordered DCFS to provide the family with maintenance services.
The father has since moved out of state, stopped participating in dependency proceedings, and has not contested the termination of his parental rights. --------
In January 2017, due to an alcohol-fueled instance of domestic violence between Mother and the father, DCFS filed and the court ultimately sustained a section 342 petition based on domestic violence issues, as well as Mother's continuing substance abuse. Mother was arrested as a result of the domestic violence incident, and the children were released to their father. Soon thereafter, the father was incarcerated, leading DCFS to place the children in foster care. The court terminated the home-of-parent order and ordered reunification services for the family. Pursuant to an earlier court order, Mother was required to participate in a full drug and alcohol treatment program with aftercare, attend individual counseling, complete parenting classes, and submit to random drug testing.
B. Period of Family Reunification Services
As of the September 21, 2017 review hearing, Mother had partially complied with her court-ordered case plan and had made "significant progress." She had started drug treatment, but had not sought individual counseling. She partially complied with drug testing, and received negative drug results, except for marijuana, for which Mother had a valid medical marijuana card. She voluntarily reported a relapse with methamphetamine in July 2017 to her social worker. Mother consistently visited with the children, the visits went well, and DCFS reported a "substantial probability" they could be reunified.
In January 2018, the court liberalized Mother's visits to be unmonitored.
In March 2018, DCFS filed a mostly positive report. Mother had fully complied with scheduled and on-demand drug testing and received negative results, except for marijuana, for which Mother had a valid medical marijuana card. She had obtained new housing, employment, and her driver's license. The report described her as in "[f]ull compliance with [f]ull drug/alcohol program." (Boldface and underlining omitted.) DCFS consistently reported her visits with children went well, that DCFS had no concerns about the visits, that Mother was always punctual and prepared, and that she interacted appropriately with the children and was "actively engaged."
As to her relationship with her boyfriend, J.G. (the boyfriend), Mother "denie[d] any issues of abuse or violence. However, on or around [January 27, 2018], a referral was called in for general neglect, regarding [the boyfriend]'s son stating that [Mother] and [the boyfriend] would engage in verbal arguments and [the boyfriend] would belittle his son. The allegations are in the progress of being investigated." The report concludes: "[Mother] appears more motivated and focused on reunifying with her children as evidenced by her consistency with [c]ourt [o]rders and communication with [DCFS]. [DCFS] is extremely pleased with her progress and happy to see the changes she has made in her life. [Mother] however has to continue her journey in recovery which can be challenging, but it is hoped that with aftercare support, counseling and consistency she will continue to make positive progress. However, due to the issues with getting appropriate furniture to accommodate the children, [and] open referral and concerns with her live-in boyfriend, [DCFS] respectfully recommends" continuing services for six months and scheduling a hearing under section 326.22.
Later that month, DCFS reported that the boyfriend's 2018 referral involving his son had been deemed "[u]nfounded."
The court ordered Mother not to permit the boyfriend to have any contact with the children. The record does not reveal the court's reasoning for imposing this restriction initially. However, subsequent discussion reflects that the court was mostly concerned about the boyfriend's criminal history and the DCFS investigation regarding his teenage son. The boyfriend's criminal history included arrests for attempted murder in 1992, open container and driving under the influence in 2002, drug offenses in 2003 and 2004, "DUI-alcohol [with a] minor" in 2004, assaulting a police officer in 2009, and driving with a suspended license in 2008, 2013, 2014, 2016, and 2017.
On April 4, 2018, a social worker dropping off the children for an unmonitored visit observed the boyfriend having contact with the children, in violation of the court's no-contact order. The social worker immediately terminated the visit and confronted Mother. Mother initially lied, and ultimately began shouting. After this incident, Mother's visits were monitored. DCFS met with Mother to discuss the incident and learned the boyfriend drove Mother to visits with the children, even though his driver's license was suspended. DCFS expressed concerns about this, but Mother continued to have the boyfriend transport her. Nothing in the record reflects he drove the children.
C. Termination of Mother's Reunification Services and the Children's Petitions to Reinstate Them
In July 2018, DCFS recommended termination of reunification services for Mother. On the one hand, the report acknowledges many positive points: Mother's "significant progress" in completing her court orders, her continuing relationship with her daughters, and her efforts to prepare a home for them. For example, it reflects that Mother was employed and was saving money for furniture for the children, and that Al.M. continued to express a desire to return to Mother (Am.M. was too young to make meaningful statements). Mother had voluntarily started participating in therapy with Al.M., and made progress in that regard.
Many of the countervailing concerns DCFS expressed in the report were related to the boyfriend, with whom Mother now lived. Namely, in recommending termination of services, the report notes that "Mother has made significant progress in completing her [c]ourt orders; however, [M]other's lack of follow through with aftercare services, her continued substance use [presumably referring to her marijuana use], and her relationship [with the boyfriend] provide an unsafe situation for two young children. [Mother] is currently living with [the boyfriend] her now fiancée . . . , who has extensive criminal history and DCFS history. Further, per a subsequent arrest report received as to [M]other's arrest on [June 8, 2017], she appears to have a bench warrant issued." This June 2017 arrest—of which DCFS was not previously aware, but which predates the report by over a year—also involved the boyfriend. Namely, the boyfriend and Mother were arrested in Inyo County when he was "under the influence of drugs/alcohol while driving and that [Mother] had also been drinking." As a result of this incident, a DCFS investigation "for [g]eneral [n]eglect was substantiated for the son of [the boyfriend] in Inyo County. . . . An interview of [the boyfriend]'s son from the report states that 'this type of activity with law enforcement is frequent.' " The record does not indicate whether the boyfriend's son was in the car when he was driving under the influence. Nor is there any indication that the children were present.
After receiving a copy of the report, Mother requested a meeting with her social worker, during which she claimed to have gone to narcotics anonymous meetings, although she did not have any documentation, and further claimed to have cleared her Inyo County warrant, for which she likewise had no supporting documentation. Mother also "asked if she could be provided with a copy of [the boyfriend]'s referrals that were documented in [the DCFS] report," but "was advised that [DCFS] is not able to provide her with that information."
The record likewise contains no documents regarding the boyfriend's DCFS history. Indeed, the only information in this regard is as outlined above. It is uncontested that DCFS has not removed the boyfriend's son from him, as the son lived with him and Mother.
The court terminated Mother's reunification services in August 2018.
Over a year later, the children—although not Mother—filed section 388 petitions to reinstate Mother's services. The petitions identified as a basis for this request Mother's bond with the children and their desire to be with her, Mother's compliance with her case plan, and the fact that the "open referral on her live-in boyfriend" that had previously caused concern "was subsequently closed as unfounded."
D. Hearing on the Children's Section 388 Petitions and Permanency Planning
The court heard the children's section 388 petitions at the permanency placement hearing on October 3, 2019. Al.M., then seven years old, testified at the hearing that she loved Mother and wanted to live with her, although when later asked whether she wanted to live with her foster family, she also indicated that she did. The parties agreed Am.M.'s testimony would be similar to that offered by Al.M. Testimony and other evidence established that Al.M. and Am.M. were thriving in their foster placement, where they had been for approximately six months, and that their foster family was willing to adopt them.
The court denied the section 388 petitions, found the children to be adoptable, and rejected counsel's arguments that the parent- child beneficial relationship exception to adoption applied. Accordingly, it terminated Mother's parental rights.
The hearing transcript suggests that a main, if not the only, deciding factor in the court's decision to deny the children's petitions was the boyfriend's continued involvement in Mother's life. Specifically, the court implied that, had Mother expelled the boyfriend from her life, the court likely would have granted the petitions. For example, the court noted that "[t]his would be a whole lot easier for me if [your boyfriend] wasn't in your life," and that "[t]here's really nothing that I can do to help you if [your boyfriend] is still in the picture." Similarly, the court noted, "[i]f you[, Mother,] had come in with this sometime sooner and said, 'Check it out. He's not around. . . .' [And] I might have said, 'Well, okay. Given what [Al.M.] had to say, let's give it another try.' " Of course, the information about the boyfriend is the only arguably new evidence or change in circumstance that could support the children's petitions, and the court may have focused on it for that reason.
E. Appeal and Appellate Briefing
Mother and the children appealed. Appointed counsel for Mother and appointed counsel for the children filed briefs pursuant to In re Phoenix H. (2009) 47 Cal.4th 835, requesting that Mother and the children's counsel, trial counsel/guardian ad litem be permitted to file supplemental opening briefs. Mother personally submitted a supplemental brief arguing that an appealable issue existed, and this court accepted it for filing. We requested that all the parties brief the issue of whether the juvenile court abused its discretion in denying the children's section 388 petitions, in particular by relying on Mother's relationship with the boyfriend in denying the petitions. Mother's appointed counsel, DCFS, and appointed counsel for the children all provided briefing and oral argument.
DISCUSSION
Section 388 permits a party in dependency proceedings, "upon grounds of change of circumstance or new evidence, [to] petition the court . . . for a hearing to change, modify, or set aside any order of court previously made" in those proceedings. (§ 388, subd. (a)(1).) A party seeking such a change in order must show either "that there is new evidence or that there are changed circumstances that make [the proposed change] in the best interests of the child." (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.); see Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485 [same].) The change of circumstances or new evidence supporting a section 388 petition "must be of such significant nature that it requires a setting aside or modification of the challenged prior order." (Ansley v. Superior Court, supra, at p. 485.) We review a juvenile court's denial of a section 388 petition for an abuse of discretion. (Stephanie M., supra, 7 Cal.4th at p. 318.)
We are not convinced that the record supports the level of concern about the boyfriend's relationship with Mother reflected in the court's decision. Although the boyfriend is hardly a model citizen, the record does not reflect that he ever did anything to endanger or negatively affect Am.M. or Al.M. Indeed, DCFS appears to have trusted him with his own son. But our view of the evidence regarding the boyfriend does not render the court's order incorrect or an abuse of discretion, given the other information in the record and the stage of the dependency proceedings at the time the court issued its order. (See In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451 [in determining whether a section 388 petition makes the necessary showing, the court may consider the entire factual and procedural history of the case].)
After a juvenile court terminates reunification services, the "focus shifts to the needs of the child for permanency and stability." (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Mother's reunification services were terminated a year before the children's section 388 petitions, and in that time, the children were placed with what by all accounts is a loving foster family willing to adopt them. Although Al.M. testified that she wanted to live with Mother, she also testified her foster parents were like parents to her, and that she wanted to live with them as well. Moreover, even if the trial court had granted the petition to reinstate reunification services, it is speculative that such additional services would result in the further changes necessary for the children to be returned to Mother. The three years of services Mother received prior to their termination reflected significant progress at times, but not consistent progress over time, and not sufficient progress for her to regain custody. Given this, it would not be in the best interests of the children to jeopardize the children's permanent adoptive placement at a home where they are currently thriving, in the hopes that still more services for Mother will result in changes sufficient to return the children to Mother's care. (See In re Stephanie M., supra, 7 Cal.4th at p. 317 [after termination of reunification services, stability in the child's current placement is generally in his or her best interest, particularly when such placement is leading to adoption by long-term caretakers].) She has received extensive services that did not yield the results necessary to overcome the children's need for security and permanency.
Accordingly, we affirm.
DISPOSITION
The order of the juvenile court is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J. We concur:
CHANEY, J.
BENDIX, J.