Opinion
G063946
11-06-2024
In re E.D., a Person Coming Under the Juvenile Court Law. v. L.D., Defendant and Appellant. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Debbie Torrez and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County Super. Ct. No. 21DP0997, Robert Goodkin, Judge.
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant.
Leon J. Page, County Counsel, Debbie Torrez and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
GOETHALS, ACTING P. J.
The child in this case, E.D., was two years old at the time of the hearing that determined his permanent plan pursuant to Welfare and Institutions Code section 366.26 (the .26 hearing.) E.D. tested positive for methadone at birth; he never resided with either parent as he spent the first two months of his life in the hospital and was then ordered detained by the juvenile court. E.D.'s parents, L.D. (Mother) and J.J. (Father), were thereafter provided with 22 months of reunification services, beginning in September 2021 and ending in June 2023.
All further statutory references are to the Welfare and Institutions Code.
As the .26 hearing was getting underway, Mother filed a petition under section 388, asking the juvenile court to change its order terminating reunification services. The court granted a hearing on the petition; it then denied the petition after concluding Mother had not yet resolved her substance abuse problem, and finding that it was not in E.D.'s best interests to change the prior order.
Mother appeals the denial of her section 388 petition; we find no abuse of discretion and affirm the order.
FACTS
When E.D. was born in July 2021, he tested positive for methadone exposure and was given morphine to address withdrawal symptoms. He later had a nasogastric tube placed due to a difficulty he had with feeding. He was then transferred to a neonatal intensive care unit. While E.D. remained hospitalized, he was taken into protective custody by the Orange County Social Services Agency (SSA).
Mother, who was then 28 years old, admitted to using opioids since she was 18 years old and acknowledged using heroin for seven months of her pregnancy. Father also admitted to a daily heroin habit before he had recently begun methadone treatment.
In September 2021, Mother and Father submitted to the jurisdictional petition and the court sustained the petition, offering reunification services to both parents. Mother and Father enrolled in substance abuse treatment and therapy, attended 12-step meetings, and tested negative for controlled substances multiple times. Father missed nine drug tests and Mother missed seven tests.
The court conducted a six-month review hearing in March 2022; it found both parents had made only minimal progress and ordered an additional six months of reunification services.
One week before the six-month review hearing, E.D. was placed with his paternal grandmother in Hawaii. Mother and Father moved to Hawaii during the second reunification period. The social worker provided a list of services in Hawaii to Mother and Father.
The parents continued their efforts to visit with E.D. during the second reunification period, but maintaining sobriety continued to be a challenge and their lives were difficult.
Mother resided for a time at the Women Helping Women Shelter, but she left before completing the program. Mother also enrolled in an inpatient therapeutic living program at Malama Family Recovery Center, but was discharged from the program approximately six weeks later. According to Mother, her discharge was not because she failed to maintain sobriety, but because she "struggled to co-exist in the community setting."
Around the time of Mother's discharge, she was arrested for driving under the influence and driving without a license. When she failed to appear in court, a warrant for her arrest was issued. Mother was arrested again in October 2022 for two incidents of theft and assault. She was incarcerated as a consequence of the October arrests.
The court conducted its 12-month review hearing in October 2022. It concluded Mother's and Father's progress had been moderate and ordered a third period of reunification.
Mother was incarcerated in the Maui Community Correctional Center for over five months; she was released in March 2023. During that time, she did not request any visitation with E.D. and there was no evidence she completed any services.
After Mother was released, E.D.'s paternal grandmother supervised the parents' joint visitation. The grandmother reported "she constantly has to remind the parents of days and times of visits," and she "provides all supplies for the child during visits, . . . includ[ing] food and toys." The grandmother expressed concern that during most of the visitation time, the parents were arguing or falling asleep. She also reported that, although the parents had attended a few of E.D.'s occupational therapy appointments, they rarely attended his physical therapy appointments, and the occupational therapist had informed her that she was concerned both parents arrived at the appointments under the influence of drugs.
In late April 2023, the grandmother reported she was no longer willing to supervise any visitation, and a professional monitor was appointed to supervise further visits. On May 24, 2023, Mother and Father engaged in a physical altercation during visitation at a mall which necessitated police involvement.
The 18-month review hearing was conducted in June 2023. The court concluded Mother had made only minimal progress, while Father's progress had been "moderate, until Father's relapse." The court terminated reunification services and set the matter for a .26 hearing.
In July 2023, Mother was again arrested and incarcerated, and she remained in custody until mid-September. She had no visits with E.D. during her incarceration.
In August 2023, E.D. was transferred from the custody of his paternal grandmother to the custody of a paternal cousin, Roy. A., who, along with his wife, expressed interest in adopting E.D.
Following her release from jail in September 2023, Mother was again admitted to Malama Family Recovery Center. She resumed visiting E.D. on October 1, 2023.
Initially, Mother's visits went well. Mother was excited to see E.D., brought toys for him to play with, and changed his diaper and fed him when necessary. They interacted well, and E.D. responded to Mother's affection and appeared to enjoy her visits. However, while E.D. recognized Mother and seemed to enjoy being near her, the monitor "never observed [E.D.] crying during separation with his parents."
Subsequent visits were not as positive. On October 16, the monitor was informed that Mother was again discharged from Malama Family Recovery Center after about five weeks. Mother's visit with E.D. that day was terminated early due to Mother's hostility and refusal to follow the rules. Mother escalated the situation by attempting to leave with E.D. and screaming at the monitor. This caused E.D. to become upset.
Mother was late to the visit on October 23; she then spent over 30 minutes in the restroom with Father, raising suspicion that the two of them were using drugs. Mother missed her visit on October 30 and again on November 5.
There were several visits in November that were disrupted when Father showed up, and Mother was upset when the monitor told her he could not stay. Mother attempted to fire the monitor in mid-November and then missed her visit on November 20. She had no further visits until December 21, 2023.
Mother filed her section 388 petition in early December 2023.She requested a change in the court's June 27, 2023 order terminating reunification services. She alleged changed circumstances since the termination of services because she had participated in out-patient treatment through Malama House and tested negative for drugs. Moreover, Mother relied on the fact that at the recommendation of Malama House, she had been enrolled in the Women's Way residential treatment program since November 20, 2023, where she continued to engage in services and to test negative for controlled substances.
We grant Mother's motion to augment the record to include this petition.
In addition to providing photographs of herself with E.D., Mother supported her petition with (1) a certificate of attendance for the week of November 26-December 2, 2023, stating she had "attended and participated in 25 or more hours of scheduled activities," (2) an attendance list for meetings that took place from November 21 through December 9, and (3) letters from the Salvation Army confirming Mother had tested negative for drugs on five occasions between November 20, 2023 and January 2, 2024.
Mother requested family maintenance services or, in the alternative, that she be given more family reunification services.
Mother also alleged it would be in E.D.'s best interests to change the order because she has "maintained consistent and regular visitation with [E.D.] and there is a bond between [them]. As a result, placing [E.D.] in Mother's care would be in the best interest of [E.D.], as he will be able to continue to strengthen the bond and be raised by his biological mother."
The court scheduled an evidentiary hearing on the petition for December 2023. At the hearing, the social worker testified Mother had participated in out-patient services at Malama House after her discharge from the in-patient program, including drug testing; the social worker did not know the results of the drug testing. The social worker also confirmed that Mother was admitted to Women's Way as of November 20, 2023, and was in good standing as of December 11.
In her own testimony, Mother described her loving relationship with E.D. during visitation. She claimed her longest period of sobriety had been 18 months, but acknowledged she was referring to the time she was pregnant with E.D., while she was living in California. Mother stated that at the time of the hearing, she was on methadone, which she described as a "medically assisted treatment for opiates."
As of January 4, 2024-the date of her initial testimony-Mother stated it was her plan to remain in the Women's Way residential program, which would allow E.D. to live with her if he were returned to her care. She testified she continued to do well in the program.
Mother resumed visitation with E.D. on December 21, 2023, while the hearing was under way, and she continued visiting until early January 2024. Those visits went well, although Mother seemed tired at times and E.D. sometimes displayed "observable signs of discomfort with physical affection." According to the monitor, E.D. continued to show no distress at the end of the visits.
While Mother maintained that her visits with E.D. were consistently positive, the visitation monitor's assessment was mixed. The monitor confirmed E.D. would hug and kiss Mother during visits, but she estimated that only "the majority" of visitation she observed between Mother and E.D. was positive.
The monitor stated Mother's best visits with E.D. occurred when Mother was residing at Malama House. The monitor contrasted that positive Malama House period of visitation with the visits that took place outside of Malama House, when Mother was "[s]till able to manage the minimum," but was "not so warm and . . . not responsive to [E.D.'s] needs." The monitor volunteered that she "would like to narrow visitation." The monitor also stated that "from my professional point of view, I would never . . . draw conclusions based on [E.D.'s] behavior towards the parents because I don't think he has the capacity to express himself ...."
Mother testified again on January 24, 2024. She stated she had been discharged from the Women's Way program after she had a physical altercation with another woman, although she denied responsibility for the situation. Mother was then living in a hotel, but she anticipated moving to a new sober living place as soon as a bed opened up.
The court denied Mother's section 388 petition. It stated Mother had "never resolved" her substance abuse problem, and said it "wishe[d it] had a crystal ball to know what was going to happen in the future, if [Mother was] going to turn a corner and resolve the substance abuse issues," before noting "I don't know what will happen in the future." The court then noted that because E.D. had never lived with Mother, and reunification services had already been terminated-placing the focus was on E.D.'s need for permanence-it did not find that changing the prior order would promote E.D.'s best interests.
DISCUSSION
A petition to change or modify a juvenile court order under section 388 must factually allege that there are (1) changed circumstances or new evidence to justify the requested order, and (2) that the requested order would serve the child's best interests. (In re Dy.P. (2022) 76 Cal.App.5th 153, 163.) "The change in circumstances supporting a section 388 petition must be material." (In re N.F. (2021) 68 Cal.App.5th 112, 120.)
When evaluating the child's best interests in connection with a petition under section 388, the court considers (1) the seriousness of the problem that led to the dependency and the reason for any continuation of that problem; (2) the strength of the child's bond with his or her new caretakers compared with the strength of the child's bond with the parent, and (3) the degree to which the problem leading to the dependency may be easily removed or ameliorated, and the degree to which it actually has been. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 531-532.)
As explained in In re J.C. (2014) 226 Cal.App.4th 503, 526, (In re J.C.), the best interests analysis has a special focus when a parent seeks a change of order "on the eve of the .26 hearing." That is because "[a]fter the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point 'the focus shifts to the needs of the child for permanency and stability.'" (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Brittany K. (2005) 127 Cal.App.4th 1497, 1507 ["At this point in these dependency proceedings, the overwhelming consideration of both the juvenile court and of this court must be the minors' need for stability, continuity, and permanency"].)
If the petition under section 388 makes a prima facie showing that a change in the prior order will promote the best interests of the child, then the court must set an evidentiary hearing on the matter. (§ 388, subd. (d); see In re Marilyn H. (1993) 5 Cal.4th 295, 310 ["The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing"].)
We review the juvenile court's decision to deny a section 388 petition for abuse of discretion. (In re Stephanie M., supra, 7 Cal.4th at p. 318 ["This determination was committed to the sound discretion of the juvenile court, and the trial court's ruling should not be disturbed on appeal unless an abuse of discretion is clearly established"]; (In re Jasmon O. (1994) 8 Cal.4th 398, 415 ["The petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion"].) "The denial of a section 388 motion rarely merits reversal as an abuse of discretion." (In re Amber M. (2002) 103 Cal.App.4th 681, 685-686.)
Mother argues the court abused its discretion in denying her petition because she "met her burden of demonstrating changed circumstances and/or new evidence such that granting her request would be in [E.D.'s] best interests." We are not persuaded.
The court had discretion to grant or deny the petition, and its failure to be persuaded by Mother's evidence does not demonstrate an abuse of its discretion. We would reverse the juvenile court only if we believed Mother's evidence was so overwhelming that no reasonable court could have denied her petition. That is not the case here.
While it does appear that Mother made a concerted effort to turn her life around following her release from incarceration in September of 2023, that effort was still a work in progress when Mother filed her section 388 petition in December. While Mother continued to participate in services after she was discharged from the inpatient program at Malama House, it was unclear that she had maintained her sobriety during the period before she entered Women's Way in late November. There was evidence that her behavior during visitations was concerning, and that she may have used drugs with Father during one October visit.
Moreover, by the time the hearing ended, Mother had been discharged from the Women's Way in-patient program, and thus her plan to have E.D. live with her in that program had collapsed. Mother is trying to change the trajectory of her life, but it would be unreasonable to believe she could permanently alter her dangerous conduct in such a short period of time. (See In re Ernesto R. (2014) 230 Cal.App.4th 219, 223 ["Appellant's recent sobriety reflects 'changing,' not changed, circumstances"]; In re A.S. (2009) 180 Cal.App.4th 351, 358 [a "showing of changing circumstances is not sufficient to require a hearing on the merits of [appellant's] section 388 petition"].)
The juvenile court's comments-wishing it had a crystal ball to see into Mother's future-reflected its view that while Mother might finally be making real progress, she was not yet there. We find no error in that assessment.
And finally, we agree with the court's conclusion concerning whether a change in its prior order would benefit E.D. The focus of the proceeding was on E.D.'s need for permanency and stability. Mother still had no stable housing and she had been terminated from two in-patient substance abuse programs in the prior three months. Her circumstances were inconsistent with the goal of achieving permanency and stability for E.D. The court did not err in denying Mother's section 388 petition.
DISPOSITION
The order is affirmed.
WE CONCUR: SANCHEZ, J. MOTOIKE, J.