Opinion
B233110
10-31-2011
In re A.K., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.C., Objector and Appellant.
Megan Turkat-Schirn, under appointment by the Court of Appeal, for Objector and Appellant. Office of the County Counsel, Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK78971)
APPEAL from an order of the Superior Court of the County of Los Angeles, Debra Losnick, Juvenile Court Referee. Affirmed.
Megan Turkat-Schirn, under appointment by the Court of Appeal, for Objector and Appellant.
Office of the County Counsel, Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Principal Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
Objector and appellant D.C. (mother) appeals from the juvenile court's order denying her petition under Welfare and Institutions Code section 388 seeking, inter alia, an order restoring her custody of A.K. and renewing reunification services that had been terminated six months earlier by the juvenile court. Mother contends that because she complied with her case plan during the period after her reunification services were terminated, the juvenile court abused its discretion by refusing her request for custody and further reunification services.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We hold that the juvenile court did not abuse its discretion in denying the section 388 petition. We therefore affirm the order denying that petition.
FACTUAL AND PROCEDURAL BACKGROUND
Mother's infant son, A.K., came to the attention of the Department of Children and Family Services (DCFS) on September 11, 2009, when a caller reported that A.K.'s mother had been in an automobile accident. According to the caller, mother was "reaching towards the back seat of the car to give [A.K.] his bottle." Mother lost control of the car and collided with two parked cars. Mother and A.K. were transported to the hospital for a routine exam as they had "small scratches" on their hands from the deployment of the air bag. The caller also reported that mother and A.K. had been released from the hospital, but that mother was subsequently arrested when the police discovered she had an outstanding warrant on robbery charges.
On September 17, 2009, DCFS filed a petition under section 300 alleging that mother drove recklessly and, as a result, collided into two parked cars. DCFS also alleged that mother's history of substance abuse and current abuse of illegal drugs rendered her incapable of providing regular care for and supervision of A.K. The juvenile court sustained the petition, declared A.K. a dependent of the court, ordered A.K. suitably placed, and ordered reunification services for mother. Mother was ordered to participate in parenting education classes, individual counseling, drug counseling, and random drug testing.
In a May 3, 2011, interim review report, DCFS reported that although mother was provided with reunification services, she failed to comply with court orders and failed to reunify with A.K. Among other things, mother failed to comply with the court-ordered random drug testing. As a result, on September 17, 2010, the juvenile court terminated mother's reunification services and set a section 366.26 hearing on a permanent plan for A.K. for March 18, 2011.
On March 11, 2011, mother filed a section 388 petition requesting a change in court order. In the petition, mother stated that she was currently enrolled in an inpatient recovery home and had been attending programs and services since December 2010. According to mother, she was in "full compliance with [her] case plan." She further claimed that she continued to visit A.K. and had a strong bond with him. Mother asserted that A.K. was always happy to see her and comfortable with her during visits. Mother also maintained that because she shared a strong bond with A.K., he would benefit from a continued loving relationship with her. Mother believed she could provide A.K. with a fit home and permanency. She requested that the juvenile court make a home of parent order, or in the alternative, that she be granted overnight weekend visits, or at a minimum, unmonitored day visits. She also asked for continued reunification services. In granting mother's request for a hearing on her section 388 petition, the juvenile court set a hearing on the section 388 petition for May 3, 2011 which was combined with the section 366.26 hearing.
In a May 3, 2011, interim review report, DCFS reported that although mother had recently completed a 90-day drug treatment program, parent education classes, and anger management classes, mother was not drug testing, so it was not known if mother was currently sober or if her substance abuse problem had been appropriately resolved. In addition, mother had in the past failed to complete two drug tests, claiming she was unable to provide urine samples. DCFS treated those tests as "dirty" tests that created uncertainty about mother's claims of sobriety and drug free living. Also, mother was living with her father against whom a juvenile court had previously sustained allegations of child abuse relating to mother. Moreover, mother was not employed and had no financial means to care for A.K. According to DCFS, mother's visits with A.K. were inconsistent. She usually arrived late for visits and called the foster parents to cancel visits after they had taken A.K. to the agreed upon visitation site. And, DCFS reported that A.K. appeared "very emotionally" bonded to the prospective adoptive parents and was "very loving" and comfortable with them. The prospective adoptive parents were also eager to adopt A.K. and were "very committed" to provide A.K. with a permanent home. Accordingly, DCFS recommended that the juvenile court deny the section 388 petition and proceed with the permanent plan of adoption for A.K.
At the hearing on the section 388 request, mother testified that she had been employed for "a little over a month." She sought employment to provide a "better foundation for [her] and [her] son." Mother was currently living with her mother in North Hollywood. She moved there to be closer to A.K. and so she could "make it to [her] visits [with A.K.]. She planned on having A.K. cared for by a licensed day care facility while she was working.
Mother checked herself into a residential treatment program, enrolled in parenting and anger management courses, participated in counseling, attended A.A. meetings, and worked regularly with a sponsor with whom she had daily contact. She enrolled in all the programs and courses for her son.
Mother was in the residential treatment program for three months and submitted to drug testing twice a week. She claimed that none of her test results were "dirty," but she did not provide the social worker with the test results.
On cross-examination, mother conceded that she had only participated in two counseling sessions.
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During her visits with A.K., mother interacted and played with him, incorporating into the visits the tools she learned from her classes. A.K. knew who his mother was, smiled at and ran to her when she arrived for visits, and called her "mama."
Following mother's testimony and the arguments of counsel, the juvenile court denied the section 388 petition explaining: "The court has carefully reviewed the documents which were presented to me and listened to the mother's testimony. [¶] The court does not feel that the mother has met the first prong necessary for the 388 petition. The mother has just started counseling and had two sessions. [¶] The court reminds the record and counsel that this petition was filed September 17 of 2009. The mother had a full year of reunification services though perhaps only entitled to six months given the age of the child. However, a year after the petition was filed this court then terminated reunification services. We are now eight months farther along. We are at twenty months, and the mother has not complied with the case plan to my satisfaction. [¶] I cannot find that the requested relief would be in the child's best interest. In fact, the contrary given the record of visitation." The juvenile court then held a section 366.26 hearing on the permanent plan, terminated parental rights, and freed A.K. for adoption.
DISCUSSION
A. Legal Principles
"Section 388 allows a parent or other person with an interest in a dependent child to petition the juvenile court to change, modify, or set aside any previous order. (§ 388, subd. (a).) 'Section 388 provides the "escape mechanism" that . . . must be built into the process to allow the court to consider new information.' (In re Marilyn H. (1993) 5 Cal.4th 295, 309 [19 Cal.Rptr.2d 544, 851 P.2d 826]; see also In re Zacharia D. (1993) 6 Cal.4th 435, 447 [24 Cal.Rptr.2d 751, 862 P.2d 751]; In re Stephanie M. (1994) 7 Cal.4th 295, 317 [27 Cal.Rptr.2d 595, 867 P.2d 706].) The petitioner has the burden of showing by a preponderance of the evidence (1) that there is new evidence or a change of circumstances and (2) that the proposed modification would be in the best interests of the child. (§ 388; Nahid H. v. Superior Court (1997) 53 Cal.App.4th 1051, 1068 [62 Cal.Rptr.2d 281]; In re Casey D. [(1999)] 70 Cal.App.4th [38,] 47 .) That is, '[i]t is not enough for [the petitioner] to show just a genuine change of circumstances under the statute. The [petitioner] must show that the undoing of the prior order would be in the best interests of the child. [Citation.]' (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529 .) Furthermore, the petitioner must show changed, not changing, circumstances. (In re Casey D., supra, at p. 47.) The change of circumstances or new evidence 'must be of such significant nature that it requires a setting aside or modification of the challenged prior order.' (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485 .)" (In re Mickel O. (2011) 197 Cal.App.4th 586, 615.)
"In considering whether the petitioner has made the requisite showing, the juvenile court may consider the entire factual and procedural history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189 .) The court may consider factors such as the seriousness of the reason leading to the child's removal, the reason the problem was not resolved, the passage of time since the child's removal, the relative strength of the bonds with the child, the nature of the change of circumstance, and the reason the change was not made sooner. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446-447 .) In assessing the best interests of the child, 'a primary consideration . . . is the goal of assuring stability and continuity.' (In re Stephanie M., supra, 7 Cal.4th at p. 317.)" (In re Mickel O., supra, 197 Cal.App.4th at p. 616.)
"We review the juvenile court's denial of a section 388 petition for an abuse of discretion. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71 .) The court 'exceeds the limits of legal discretion by making an arbitrary, capricious or patently absurd determination.' (Ibid.). . . '["]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." [Citation.]' (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)" (In re Mickel O., supra, 197 Cal.App.4th at p. 616.) "The Court of Appeal is not a second trier of fact . . . ." (James B v. Superior Court (1995) 35 Cal.App.4th 1014, 1021.) Any finding of fact must be based upon substantial evidence—evidence that is "'reasonable in nature, credible, and of solid value.'" (In re Robert L. (1993) 21 Cal.App.4th 1057, 1065.)
B. Analysis
When reviewed under the applicable abuse of discretion standard of review, the juvenile court's denial of mother's section 388 petition was not arbitrary, capricious, or patently absurd. There is evidence that although mother had completed a three-month residential treatment program, it was still uncertain whether she had resolved her longstanding substance abuse issues because, other than mother's claim that her twice weekly drug tests during the program were all clean, there was no documentary evidence from the facility to support that claim. Also, mother admitted that she had only participated in two counseling sessions, an admission that further undercut her assertion that she had completed and was in compliance with her case plan. And DCFS reported that mother was not taking full advantage of her opportunities to visit with A.K. because she was either chronically late to visits or cancelled them at the last minute.
The juvenile court noted that mother had been given a year to unify with A.K., but had failed to do so and, even eight months after reunification services were terminated, mother was still not in compliance with her case plan. Given that the prospective adoptive parents were strongly bonded with A.K. and were ready and willing to adopt him, it was not beyond the bounds of reason—the basis for the abuse of discretion standard of review—for the juvenile court to determine that it was not in A.K.'s best interests to remove him from his prospective adoptive home, place him with mother, and provide mother with renewed reunification services. Mother did not demonstrate how returning A.K. to her or providing for reunification services would promote A.K.'s best interest—a requirement for relief under section 388. We therefore conclude that the juvenile court did not abuse its discretion in denying mother's section 388 petition.
DISPOSITION
The order denying the section 388 petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MOSK, J. We concur:
ARMSTRONG, Acting P. J.
KRIEGLER, J.