Opinion
C082429
03-17-2017
In re J.N., et al., Persons Coming Under the Juvenile Court Law. SAN JOAQUIN COUNTY HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. A.C., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. STKJVDP20140000325/J06991)
A.C., mother of the minors J.N. and J.K., appeals from the juvenile court's orders denying her petition for modification (Welf. & Inst. Code, § 388; undesignated statutory references are to this code), and terminating parental rights as to J.K. She contends the court erred in denying her petition without a hearing. We shall affirm.
BACKGROUND
When the minor J.K. was born in October 2014, both he and mother tested positive for methamphetamine. Mother admitted to using methamphetamine the week before. About a month before giving birth, she had left her 12-year-old son J.N. with her cousin and then went to Texas, where another child of hers lived. She picked up J.N. after returning from Texas.
The San Joaquin County Human Services Agency (Agency) filed a dependency petition (§ 300) on October 14, 2014, alleging jurisdiction over J.K. and J.N. The juvenile court detained the minors the next day.
Interviewed in her hospital room after giving birth to J.K., mother told the social worker she lived in Texas and had planned to move there before J.K. was born. She was living with a friend but did not know the exact address. The friend was watching J.N. when she went into labor.
The minors' half brother lived with his father in Texas until the father was incarcerated and the child was placed in the care of his paternal grandfather. J.N.'s father lived in Utah and had no contact with the child. J.K.'s father was incarcerated at Deuel Vocational Institution. Both fathers had extensive criminal histories.
Mother had a substantiated referral for caretaker absence in 2007 after her arrest for forgery. She completed a drug treatment program as a result of the referral. Her criminal record included felony convictions for second degree burglary, forgery, and unlawfully driving or taking a vehicle.
The juvenile court sustained the petition in November 2014. An amended petition regarding J.N.'s father was filed later that month and was sustained by the juvenile court in December 2014.
The January 2015 disposition report noted that mother had a history of substance abuse. She said that she needed a residential treatment program to address her substance abuse problems. Mother was in drug court and was referred to outpatient treatment, but failed to attend. She was terminated from the treatment program in December 2014 after admitting using alcohol. Mother missed her last drug court appearance in December 2014.
J.N. had no developmental delays but had not attended school since April 2014. He was referred for mental health services at his current placement. J.K. had no developmental delays.
At the January 2015 disposition hearing, mother objected to the personal counseling component of her treatment plan and requested overnight visitation with the minors. The juvenile court ordered services for mother and deferred services for the fathers pending determination of paternity.
Paternity was established for the fathers at a February 2015 hearing. At that hearing, the juvenile court was informed that mother was terminated from drug court earlier that month. Services were provided for J.K.'s father starting in April 2014 and were continued in August 2015. The juvenile court bypassed services for J.N.'s father pursuant to section 361.5, subdivision (b)(9) in July 2015.
The July 2015 six-month report related that J.N. had five placements during the dependency. Mother failed to participate in any services since the December 2014 termination from the outpatient treatment program. The Agency recommended terminating her services.
Mother did not appear at the six-month review hearing held in August 2015. Mother's services were terminated and services were continued for J.K.'s father.
The January 2016 status report stated that J.N. was diagnosed with Attention Deficit Hyperactivity Disorder and Oppositional Defiant Disorder in April 2015. Medication was not prescribed for J.N. due to his marijuana use. He was receiving individual and group counseling. After several of verbal and physical aggressions with peers and at school, J.N. was placed at a group home in March 2015. The home used a weekly level system to track a resident's progress, with level I equating poor behavior during the week, and levels II and III corresponding with better behavior. As of the report, J.N.'s level vacillated between I and II. J.K. was healthy and remained on track developmentally, and the Agency deemed him to be adoptable. It recommended terminating his father's services due to his continued incarceration and failure to make any progress in his case plan.
The juvenile court terminated services for J.K.'s father on March 3, 2016.
On May 9, 2016, mother filed a petition for modification seeking the minors' return to her custody or the resumption of reunification services. As changed circumstances, mother submitted attachments indicating her efforts since services were terminated. Mother entered a residential drug treatment program on September 16, 2015, successfully completing it on December 14, 2015, and testing clean throughout the program. She was currently enrolled in a nine-month-long aftercare program, and had tested clean for the four months she completed. Among the attachments were drug test records, all negative, ordered by probation services for the United States District Court, Eastern District of California. She was attending dependency drug court and went to Alcoholics Anonymous and Narcotics Anonymous meetings just about daily. As part of the program, mother completed a 13-and-one-half-hour parenting program and 22 hours of a dialectical behavior skills training program. Mother had volunteered with a food distribution center in Stockton. She continued to visit her children.
County counsel filed an opposition to the petition asserting it was untimely, and mother failed to make a prima facie case of changed circumstances or benefit to the minors. Minors' counsel also filed an opposition asserting mother's petition showed only changing circumstances.
The juvenile court denied the petition without holding an evidentiary hearing, finding mother was "making changes" but it did not amount to the necessary changed circumstances to support granting the petition.
The section 366.26 report, filed in June 2016, stated that J.K. was likely to be adopted given his youth and lack of special needs. He was placed with his paternal aunt, who was willing to adopt if parental rights were terminated.
A status review report filed the following month noted that J.K. was doing well with the paternal aunt. Mother and J.N. visited him once a week together. Mother lived in a one-bedroom apartment with her boyfriend and four-month-old daughter. She attended outpatient therapy on Mondays, participated in weekly therapy, randomly drug tested, and voluntarily participated in drug court. She continued to volunteer at the food distribution center. The Agency recommended terminating parental rights.
A July 2016 report related J.N.'s significant progress. There were no longer any concerns about his marijuana use. J.N. typically followed the routine and structure of the group home and required only periodic prompts to get back on task. During the reporting period, J.N.'s weekly behavior charted at the highest levels given by the group home, levels III and IV. He was receiving individual and group counseling to improve his social, coping, and anger management skills. He continued to need a structured environment and clinical services to assist his emotional and physical development. The Agency recommended a planned permanent living arrangement for J.N.
At the contested selection and implementation hearing, mother testified to her continuing visitation with J.K., except when she "went away to inpatient in Sacramento" and was not allowed contact. She remained drug free and was a "totally changed person." The drug treatment ordered as part of her reunification plan "wasn't working," so she drank in order to get into an inpatient program. She was not ready to rehabilitate at the time. She entered the drug treatment program in September 2015 because she was arrested, but it "saved my life though."
The juvenile court terminated parental rights as to J.K.
DISCUSSION
Mother contends her petition made out a prima facie case as to both required elements under section 388 (changed circumstances and the children's best interest), and therefore the juvenile court erred by refusing to hold a hearing on the petitions. We disagree.
A petition to change or modify a juvenile court order under section 388 must factually allege that there are changed circumstances or new evidence to justify the requested order, and that the requested order would serve the minors' best interests. (In re Daijah T. (2000) 83 Cal.App.4th 666, 672.) The petitioner has the burden of proof on both points by a preponderance of the evidence. (Cal. Rules of Court, rule 5.570(h)(1)(D); undesignated rules references are to the California Rules of Court.) In assessing the petition, the court may consider the entire history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.)
To decide whether a parent has met his or her burden under section 388, the juvenile court must consider such factors as the seriousness of the problem that led to the dependency, and the reasons for the problem's continuation; the degree to which the problem may be and has been removed or ameliorated; and the strength of the relative bonds between the dependent child and the child's parents or caretakers. However, this list is not exhaustive. (In re B.D. (2008) 159 Cal.App.4th 1218, 1229.)
When a parent brings a section 388 petition after a section 366.26 hearing has been set, the best interests of the child are of paramount importance. (See In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In assessing the best interests of the child at this juncture, the juvenile court looks not to the parent's interests in reunification, but to the needs of the child for permanence and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) "[W]hen a child has been placed in foster care because of parental neglect or incapacity, after an extended period of foster care, it is within the court's discretion to decide that a child's interest in stability has come to outweigh the natural parent's interest in the care, custody and companionship of the child. [Citation.]" (In re Jasmon O. (1994) 8 Cal.4th 398, 419.) "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. [Citation.]" (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
The petition must be liberally construed in favor of its sufficiency. (Rule 5.570(a).) However, if the juvenile court finds that even so construed the petition fails to make a prima facie case as to either or both tests under section 388, the court may deny the petition without an evidentiary hearing. (In re Justice P., supra, 123 Cal.App.4th at p. 189.)
We review a ruling denying a section 388 petition for abuse of discretion. (In re S.R. (2009) 173 Cal.App.4th 864, 870.) We reverse only if the ruling exceeded the scope of the juvenile court's discretion, or if under all of the evidence, viewed most favorably to the ruling, no reasonable judge could have made that ruling. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351; see Great West Contractors, Inc. v. Irvine Unified School Dist. (2010) 187 Cal.App.4th 1425, 1459-1460.)
Mother did not make either of the necessary showings. At the time the juvenile court ruled on her petition, she completed a 90-day inpatient drug treatment program, was still in dependency drug court, and was four months into a nine-month outpatient program. While her efforts were commendable, she was still in the process of recovering from a substantial history of drug addiction. Her petition, alleging facts showing at most several months of recovery from drug addiction, alleged changing rather than changed circumstances.
Mother's petition also failed to show how granting her petition would be in the minors' best interests. J.K. never lived with mother, and granting the petition would frustrate his interests in achieving permanency through adoption. While J.N. would not be adopted, he needed the structure and stability provided by his group home placement. The ultimate goal of the petition, returning the minors to mother, was contrary to J.N.'s need for maintaining his placement in the group home. Even if J.N. was kept in the group home while services were reinstituted, this would not benefit J.N.; at best it would do no immediate harm to him. That does not satisfy the best interest standard required at this stage of the dependency.
Since mother did not make a prima facie case of changed circumstances or the minors' best interests, the juvenile court did not abuse its discretion in denying her petition.
DISPOSITION
The juvenile court's orders are affirmed.
HULL, J. We concur: BLEASE, Acting P. J. NICHOLSON, J.