Opinion
F076782
09-18-2018
In re M.H., a Person Coming Under the Juvenile Court Law. MADERA COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. VALERIE B., Defendant and Appellant.
Jessica M. Ronco, under appointment by the Court of Appeal, for Defendant and Appellant. Office of County Counsel, Miranda P. Neal and Derek Walzberg, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MJP017689)
OPINION
THE COURT APPEAL from orders of the Superior Court of Madera County. Thomas L. Bender, Judge. Jessica M. Ronco, under appointment by the Court of Appeal, for Defendant and Appellant. Office of County Counsel, Miranda P. Neal and Derek Walzberg, Deputy County Counsel, for Plaintiff and Respondent.
Before Peña, Acting P.J., Meehan, J. and DeSantos, J.
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Introduction
On February 1, 2016, a dependency petition was filed by the Madera County Department of Social Services (department) pursuant to Welfare and Institutions Code section 300 alleging Valerie B. (mother) placed her minor children at substantial risk of suffering physical harm due to mother's mental illness and drug abuse, causing mother to suffer delusions and making her incapable of properly caring for her children. One son, who was 17 years old when the petition was filed, became an adult during the pendency of these proceedings and is no longer a dependent. The three other minors subject to the dependency were Reyna F., A.R., and M.H., who were, respectively, seven years old, four years old, and 18 months old when the petition was filed.
Unless otherwise designated, all statutory references are to the Welfare and Institutions Code.
At the disposition hearing on December 15, 2016, the juvenile court terminated reunification services for mother, finding her past drug abuse history made the bypass provisions for reunification services in section 361.5, subdivision (b)(13) applicable. On October 26, 2017, the juvenile court conducted a joint hearing on permanency planning pursuant to section 366.26 and mother's petition to modify the juvenile court's prior order ending her reunification services pursuant to section 388. The juvenile court denied mother's petition as to all three minors, found adoption as the permanent plan for Reyna F. and A.R., found the beneficial parent-child exception to the preference for adoption did not apply to Reyna F. and A.R., and terminated mother's parental rights to Reyna F. and A.R. The permanency planning hearing for M.H. was continued to comply with the Indian Child Welfare Act (ICWA).
Mother appealed the findings regarding her daughters, Reyna F. and A.R, in case No. F076773. We filed our nonpublished opinion on June 21, 2018, finding no error in the juvenile court's findings and orders in that appeal. M.H.'s father, Shawn H., has filed a separate appeal in case No. F076633 that we resolve in a separate opinion considered at the same time as mother's appeal.
On appeal, mother contends the juvenile court abused its discretion in denying her section 388 petition to receive reunification services for M.H. We find no error and affirm the juvenile court's findings.
Prior Dependency Action
In March 2007, a dependency petition was sustained because one of mother's two older children, who were then 11 years old and eight years old, had been molested by a family member. Mother received reunification services for a year and a half before the case was dismissed in the fall of 2008. In November 2010, a dependency was created for mother's two older children and Reyna F. after Reyna F., then two years old, found and ingested amphetamines while in mother's home and under mother's care. Mother received family reunification services until March 2012 and family maintenance services until March 2013, when the dependency case was dismissed.
In March 2014, a dependency petition was sustained pursuant to section 300 as to one of mother's now adult children, Reyna F., and A.R. due to mother's chronic and abuse use of methamphetamine, which impaired mother's ability to provide a safe and stable home for her children. Mother received family reunification services for 11 months. By January 2015, the department assessment found mother had mitigated the circumstances warranting the dependency. The social worker's report noted mother was receiving mental health services. Mother succeeded in making excellent use of her time in individual counseling and was knowledgeable and able to identify her triggers and to employ coping skills.
Mother's youngest child, M.H. was born during the summer of 2014. Mother planned to continue working with county behavior services. Because there were no more ongoing safety threats to the children, the department recommended dismissal of the case. On January 22, 2015, the juvenile court dismissed the dependency action, ordered family maintenance services, and granted sole legal and physical custody of the children to mother.
Current Dependency Action
On February 1, 2016, the department filed a petition pursuant to section 300, alleging mother placed her four minor children at substantial risk of suffering serious physical harm as a result of mother's mental illness—paranoid schizophrenia with psychotic features—caused by mother's refusal to take her prescribed medication. This in turn rendered mother incapable of caring for her children. In addition to mother's refusal to take her prescribed psychotropic medication, she still used methamphetamine and marijuana, which exacerbate mother's delusions and hallucinations. Further, mother suffered delusions and was under the influence of illegal drugs, resulting in dangerous actions in the presence of her children. On February 2, 2016, the juvenile court found a prima facie showing had been made that the children came within the court's jurisdiction pursuant to section 300. At the jurisdiction hearing on April 8, 2016, the juvenile court found the allegations in the petition true by clear and convincing evidence.
A disposition report was submitted by the department on May 17, 2016. Mother reported suffering from hallucinations, depression, and suicidal thoughts. She was prescribed Seroquel and two other medications to treat her symptoms. She reported suffering from paranoid schizophrenia and bipolar disorder. Mother had stopped taking her medication five years earlier.
Mother reported using amphetamines for the previous 27 years, marijuana for 20 years, and drinking alcohol to intoxication for 28 years. She also experimented for about one year with cocaine, hallucinogens, and inhalants. Mother denied ever experiencing delirium tremens or overdosing on any drug. She had been treated for drug and alcohol abuse 12 times. In the 30 days prior to the report, mother had received four days of outpatient counseling or Alcoholics Anonymous/Narcotics Anonymous (AA/NA) attendance. Mother began drinking alcohol when she was eight years old and started using methamphetamine a year later.
The social worker reported mother's unstable mental health negatively impacts her ability to meet the basic needs of her children and to provide for their safety. Also, her substance abuse exacerbates her mental health illness and symptoms, making it difficult for mother to properly care for the children as well as placing them at risk of serious physical harm.
Mother was provided supervised visitation with the children twice a week. Mother was consistent with visits and there were no concerns during her visits. Mother was referred to services for mental health counseling, psychotropic medication management, substance use disorder programming, and grief counseling. Mother expressed a desire to reunify with the children. Due to mother's chronic substance abuse problem, the department was recommending services be denied mother pursuant to the bypass provision in subdivision (b)(13) of section 361.5. The department noted this was not mother's first dependency, she had completed several drug treatment programs, she continued to abuse substances over the course of the previous nine years, and she resisted prior court-ordered treatment during a three-year period prior to this dependency.
In an addendum report filed on October 31, 2016, mother reported she was participating in substance abuse treatment and mental health counseling, but she failed to submit documentation of her participation in these services. Mother described herself as drug-free but failed to drug test on September 12, 2016, and October 20, 2016. During a supervised visit with the children on August 10, 2016, mother began talking to herself and exhibited signs of paranoia because she thought a parade was about to start. No one was talking to mother and there were no signs of a parade. Mother refused to submit to a hair follicle examination. Mother mentioned she had been recently arrested under a different name. The social worker learned mother was arrested on July 30, 2016, for theft and entry into a noncommercial dwelling.
On September 20, 2016, mother's ex-boyfriend—the father of her youngest child—allegedly hit his 15-year-old daughter in the face with the back of his hand and slammed her head into a door frame. Mother was involved in the incident, telling the young woman mother was going to "whoop her ass." Mother was witnessed smoking methamphetamine. Reporting witnesses recanted their description of the ex-boyfriend hitting his daughter and told investigators it was mother who had hit her. Due to mother's continued use of methamphetamine and resistance to treatment, the social worker concluded reunification services were not in the best interests of the children.
In an addendum report filed on November 30, 2016, a social worker reported mother had a positive drug test earlier that month and refused to participate in a hair follicle test. The department continued to recommend reunification services were not in the best interest of the children. At the conclusion of the disposition hearing that began on December 1, 2016, and concluded on December 15, 2016, the juvenile court denied mother reunification services pursuant to the bypass provisions in section 361.5, subdivision (b)(13).
Section 388 Petition and Permanency Planning Reports
On April 13, 2017, mother filed a petition pursuant to section 388 seeking to modify the juvenile court's prior orders concerning family reunification services. Mother stated she had completed a substance use disorder program on April 4, 2017, consistently attended AA/NA meetings, and maintained visitation with the children throughout the proceedings. A senior mental health case worker assigned to assist mother reported mother had been attending the program since March 3, 2016. Mother's progress was steady, her attendance good, she was cooperative, and she actively participated in her treatment. Mother stated her willingness to continue treatment on her own.
In its response to mother's petition, the department continued to recommend mother be bypassed for additional reunification services due to mother's extensive history of drug use and mental health issues. Between August 1998 and April 2015, the department investigated 18 referrals alleging abuse or neglect by mother. Seven of the referrals were substantiated. Mother admitted on April 25, 2016, "she [could not] guarantee things [would] be different" with her ability to overcome substance abuse. Although mother recognized she has a substance abuse problem, she was not currently willing to participate in an inpatient treatment program, which was the recommended course of action with a substance abuse problem as serious as this one. The department argued mother's continued use of methamphetamine was evidence of her resistance to treatment. A drug test from a hair follicle sample on June 1, 2017, was positive for the presence of methamphetamine.
A section 366.26 report by the department on behalf of M.H. was filed in June 2017. The social worker noted mother's visits with M.H. originally began with two visits per week for two hours long but were reduced to once a week due to inconsistencies in mother's visits. In January 2017, mother missed two visits with M.H. Although mother appropriately played with M.H., the social worker described mother's relationship with two-year-old M.H. as dysfunctional because mother called him a spoiled brat and accused his caregivers of letting him do whatever he wanted. The social worker did not see mother's relationship with M.H. as being a parental one. The social worker concluded mother's relationship with M.H. did not outweigh his best interest in stability and the permanence of adoption. M.H. was described as handsome, outgoing, loving, and adoptable, and his caregivers wanted to adopt him.
A report from August 2017 noted mother was observed not having patience with her children and displaying a short temper. The foster parent reported in April 2017 that mother told the children they were going to be removed from their current placement and placed with a relative. Reyna returned to her foster home upset after the visit, and a social worker assured her she was not being removed from the foster parents' home. When the social worker told mother she should not be discussing placement changes with the children during visits, mother and other family members became verbally aggressive, yelling at the social worker in front of the children, which resulted in the end of the visit. The social worker did not believe mother's relationship with the children was a parental relationship, and mother's relationship with the children did not outweigh their need for the stability and permanence of adoption. The department recommended M.H. remain a dependent of the court with a permanent plan of adoption.
Hearing on Section 388 Petition and Permanency Planning
The hearing on the section 388 petition and permanency planning was held in September and October 2017. Mother testified she was still participating in her behavioral health program and her drug treatment program. The juvenile court admitted into evidence a certificate of mother's completion of her substance use disorder program dated March 27, 2017. The program was six to eight months long. Mother learned about drug treatment and the reasons for drug use. Mother attended the program two times per week as well as attending NA sessions two to four times per week. Mother had participated in the program and NA since February 2016. Mother admitted she had a positive drug test noted in a report prepared June 14, 2017, which she explained was due to her prior drug use of a few months before that date. Mother said she had been clean since then. Mother admitted her longest period of sobriety was three and a half years. Mother testified she had been sober for three and a half years before her last relapse.
Mother explained she no longer spent time with people who used drugs but associated with sober support people. Mother attended parenting classes and went to church. Mother said Madera County Behavioral Health interviewed her recently and determined she did not need mental health services. At the time of the hearing, mother was not taking psychotropic medications or antidepressants although she had previously taken these medications. The last time mother had been prescribed these medications was July the previous year. Mother admitted she had chronic issues with substance abuse and mental illness.
Mother had missed three visits since the case began: once due to being hospitalized for posttraumatic stress disorder after a tree fell on her home, once due to the bus breaking down, and once because the social worker called the wrong phone number to reschedule a visit. During the visits, mother would do arts and crafts with her children and talk about school. Mother participated in the "Healthy Beginnings" parenting class for about two months. Mother learned not to raise her voice at her children and how to give them choices so they felt like they had some control. Mother had over 100 visits with the children. Initially, these visits were twice a week but were reduced to once a week due to the distance of the children's placement.
Mother's adult daughter, M.G., testified mother shared a strong bond with M.G.'s younger sisters. M.G. explained the three younger children loved mother but were also doing well in their foster home. M.G. said the children were in a really good foster home with parent bonding. M.G. felt "like the kids are happy." All three children described mother as their "mom" and were affectionate with her. M.G. said she felt M.H. believes he has three parents: his foster parents and mother. She did not refer to Shawn H. as a parental figure to M.H.
As mother's counsel was making closing arguments, the juvenile court interjected at one point that mother's whole story began with despair over a situation in her life leading to her use of drugs from the time mother was very young. The court stated mother used drugs her whole life and never quit using them. Mother's first instinct when something happens is to use drugs. The court noted mother was bypassed for a reason—she had multiple dependency cases with multiple opportunities over many years and had not changed. The court stated mother may have demonstrated changing circumstances, but not changed circumstances. The court found mother had not shown changed circumstances and mother's requested changes in the court's earlier orders were not in the children's best interests. The court continued M.H.'s case for a permanency planning hearing to comply with ICWA.
DISCUSSION
Section 388 Petition
Mother contends the juvenile court abused its discretion in denying her section 388 petition. We disagree.
A petition to modify a juvenile court order under section 388 must allege facts showing new evidence or changed circumstances exists, and that changing the order will serve the child's best interests. (§ 388, subd. (a); In re Nolan W. (2009) 45 Cal.4th 1217, 1235.) The petitioner has the burden of proof by a preponderance of the evidence. (Cal. Rules of Court, rule 5.570(h)(1)(D).) Courts liberally construe a section 388 petition in favor of its sufficiency. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Even so, section 388 requires a petitioner to make a prima facie showing of both elements to trigger an evidentiary hearing. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) If, for instance, the parent makes a prima facie showing of changed circumstances, the juvenile court can still deny the petition without an evidentiary hearing if the parent fails to make a prima facie showing the relief sought would promote the child's best interests. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.)
In assessing the petition, the court may consider the entire history of the case. (In re Justice P., supra, 123 Cal.App.4th at p. 189.) We review the denial of a section 388 petition after an evidentiary hearing for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) Where there is conflicting evidence, we reverse only if the evidence compels a finding for the appellant as a matter of law. (In re I.W. (2009) 180 Cal.App.4th 1517, 1527-1529.)
The best interests of the child or children are of paramount consideration when, as here, a section 388 petition is brought after reunification services have been denied. (See In re Stephanie M., supra, 7 Cal.4th at p. 317.) In assessing the best interests of the child at this juncture, the juvenile court's focus is on the needs of the child for permanence and stability rather than the parent's interests in reunification. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) "A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child's best interests." (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
The "'escape mechanism'" provided by section 388 after reunification efforts have ceased is only available when a parent has completed a reformation before parental rights have been terminated. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528.) This is because if a parent's circumstances have not changed sufficiently to permit placement of the child with that parent, reopening reunification "does not promote stability for the child or the child's best interests" when the child is otherwise adoptable. (In re Casey D., supra, 70 Cal.App.4th at p. 47.)
The juvenile court found mother's circumstances had not yet changed. Although mother contended she had been clean and sober for three and a half years, she had more than one relapse during the course of these proceedings. She also had multiple prior dependency cases based on her abuse of drugs. Mother's drug abuse began during her childhood and continued throughout her adult years. While mother acknowledged she had been prescribed medications by physicians in the past to treat her mental illness, she testified she was no longer taking these medications. Mother asserted, without any corroborating evidence, that the county mental health services had told her she no longer needed to take medications.
Mother completed drug treatment programs in the past, only to relapse and continue to abuse methamphetamine. Even though the department wanted mother to complete an inpatient drug treatment program, she only completed an out-patient program and apparently continued to struggle with her addiction to methamphetamine. Mother's visits with the children were supervised and of limited duration. The juvenile court did not err in finding mother's circumstances had not changed.
Mother's inability to maintain sobriety showed she had made insufficient inroads into her persistent substance abuse problem that returning her children or resuming reunification services would be appropriate. (See In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081 [parents with extensive drug use history did not show changed circumstances where rehabilitation efforts were only three months old at time of § 366.26 hearing]; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423 [seven months' sobriety does not constitute changed circumstance where parent has history of periods of sobriety and relapses]; In re Kimberly F., supra, 56 Cal.App.4th at p. 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"].)
Even if mother showed her circumstances were changing, this would be insufficient to form a basis for the juvenile court to grant her section 388 petition. (In re Casey D., supra, 70 Cal.App.4th at p. 49.) The juvenile court did not abuse its discretion in finding mother failed to show a genuine change in circumstances meriting consideration to resume reunification services or to place M.H. with her. As for M.H.'s best interests, the social worker concluded mother did not have a parental relationship with M.H., who is adoptable and whose caregivers were seeking to adopt him. Mother's petition and her testimony at the hearing failed to establish it was in M.H.'s best interests for mother to receive additional reunification services. The juvenile court did not err in denying mother's section 388 petition.
DISPOSITION
The orders of the juvenile court are affirmed.