Opinion
E066557
01-24-2017
In re K.G., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. J.J., Defendant and Appellant.
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIJ1500680) OPINION APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni, Judge. Affirmed. Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
Defendant and appellant J.J. (mother) appeals from the denial of her Welfare and Institutions Code section 388 petition, which requested additional reunification services; her parental rights with respect to her daughter K.G. (child), the subject of these dependency proceedings, were subsequently terminated. We affirm the juvenile court's ruling, finding no abuse of discretion in the court's determination that mother failed to show sufficiently changed circumstances, and failed to show that providing her additional reunification services would be in the child's best interest.
Further undesignated statutory references are to the Welfare and Institutions Code.
I. FACTS AND PROCEDURAL BACKGROUND
The child (born July 2013) has been in the care of her maternal grandmother (grandmother) since she was about two months old, according to grandmother. On May 15, 2015, the probate court granted grandmother's petition for temporary guardianship of the child. Grandmother reported that she filed for guardianship when she discovered mother was again in a relationship with the child's father (father).
The child's father is not party to this appeal, and will only be discussed as necessary for context. --------
On June 16, 2015, mother contacted plaintiff and respondent Riverside County Department of Public Social Services (DPSS) "because she was upset at the way [grandmother] was managing the role of legal guardian to [the child]." Mother stated, among other things, that she had been living with grandmother prior to May 15, 2015, but she had been forced to move out, and since then grandmother had been refusing to allow mother contact with the child, or to retrieve personal belongings from the residence. Mother further asserted that grandmother was not caring for the child appropriately, in various respects.
On June 23, 2015, a social worker made an unannounced visit to the grandmother's home, and observed that the standard of living was "minimal." The floors were unclean, the home was cluttered, and the child's toys were "dingy with dirt." The child was present; the social worker observed that her hands and face needed to be cleaned. When the child became hungry, grandmother gave her a cold fried chicken leg, which the child "placed on the bare, dirty floor in between bites, and when this was brought to [grandmother's] attention she was not concerned."
Also on June 23, 2015, the social worker visited mother at the home of a family friend, where she had been staying since grandmother "threw her out of the home." Mother submitted to an oral drug swab, which was positive for methamphetamine, and she admitted to smoking marijuana and using methamphetamine. Mother told the social worker she was interested in receiving services and participating in counseling. Mother described her relationship with father, which began two and a half years before the child's birth, as having been "on and off" for the previous year and a half.
Later on June 23, 2015, law enforcement responded to a 911 call from grandmother's home. Mother had gone there for a visit with the child, in the presence of a "neutral third party" (the family friend with whom mother was staying), but there was nevertheless a disturbance between mother and grandmother. Grandmother subsequently applied for, and was granted, a restraining order protecting her and the child from mother and father.
On July 1, 2015, the child was taken into protective custody and placed in a foster home "due to ongoing negative interactions" between grandmother and mother in the child's presence. A section 300 petition was filed on that date, and an amended petition was filed on July 6, 2015. At the detention hearing on July 8, 2015, the juvenile court detained the child from mother and father, but not grandmother, and ordered that the child remain in grandmother's physical custody. The court ordered supervised visitation for the parents of a minimum of two times per week for two hours, with the specification that the grandmother is not to supervise the visits.
A second amended section 300 petition was filed on July 23, 2015, and a third amended petition was filed on July 29, 2015. Allegations against grandmother were removed from the petition because she resigned as the child's legal guardian, and the legal guardianship was terminated. At a jurisdiction hearing held on July 29, 2015, the juvenile court found the child came within section 300, subdivision (b); with respect to mother, the court found true allegations that she and father engaged in domestic violence; that she had a chronic and unresolved history of abusing controlled substances and had tested positive for methamphetamine on June 23, 2015; and that she was not a member of the child's household and had failed to provide for her. The juvenile court further found the child's current placement with grandmother to be appropriate, removed the child from parental custody, and ordered reunification services for the parents. The court authorized DPSS to provide grandmother with "non-statutory services." It also issued a three-year restraining order protecting grandmother and the child from mother, with an exception to the no-contact provisions for visitation as ordered by the court.
In a status report dated January 13, 2016, filed in advance of a scheduled February 1, 2016, six-month review hearing, DPSS recommended termination of reunification services for the parents, and that visitation be reduced to one supervised visit per month. DPSS reported that mother was unemployed, receiving food stamps, and pregnant, with a due date in April 2016. Mother asserted that she was no longer in a relationship with father, but disclosed two recent incidents of domestic violence with father (though she subsequently wished to "change her story"). She had not complied with her case plan; she had enrolled in counseling, but failed to begin substance abuse, domestic violence, or parenting programs. She tested positive for methamphetamine and amphetamine, and admitted to using methamphetamine. Mother visited with the child substantially less frequently than had been ordered by the juvenile court, with some cancellations and no shows.
On February 1, 2016, at mother's request, the juvenile court set the matter for a contested review hearing on February 11, 2016. In an addendum report filed February 4, 2016, DPSS reported that it had received information that on January 12, 2016, mother enrolled in an intensive outpatient "Perinatal Care Network" program consisting of "intensive individual and group counseling, on-site visitation, one to one parenting training and monitoring of mother/child interaction." It included random drug testing, drug therapy, parenting, healthy nutrition, and mental health classes. Mother had attended three therapy sessions, and a urinary analysis test on January 21, 2016, was negative. Her case manager at the program reported to DPSS that mother had been "consistent with her attendance" and had "good participation." DPSS did not change its recommendation that reunification services be terminated and visitation reduced.
On February 11, 2016, the juvenile court terminated the parents' reunification services, reduced visitation to one time per month, and set a section 366.26 hearing.
In a report filed on May 19, 2016, DPSS recommended that parental rights be terminated, and that a permanent plan of adoption be selected, with grandmother as the prospective adoptive parent. The social worker observed that grandmother "has ensured that [the child's] medical and emotional needs have been met" since she was placed with grandmother on July 9, 2015. The social worker observed that the child "appears to be healthy, happy, and secure in the home with [grandmother]." Grandmother had "been involved in the life of the child since birth and is invested in the child's well-being." The child was too young to opine about her placement or prospective adoption, but she was apparently "attached to [grandmother] and seeks her in getting her basic needs met."
The social worker observed that mother was "inconsistent" with visitation in the beginning of the case, but that since visitation had been reduced she "has showed an interest in visiting [the child] and calls to schedule her visits." The social worker also described mother as acting in an "appropriate" manner with the child during the visits. The social worker recommended, however, that the child not be returned to mother's custody: mother had indicated that she was "living in San Bernardino County with her aunt and that she is enrolled in an Outpatient program," but it was unknown whether she was still in a relationship with father (who was the father of her baby, born in April 2016), and she had not "addressed the issues that brought [mother and father] to the attention of [DPSS]."
On June 10, 2016, mother filed a section 388 petition, requesting additional reunification services. The petition asserted she had been "in a program" since January 2016, and would complete it in two months. Mother claimed a mutual bond between her and the child. The juvenile court set the matter for a hearing.
DPSS recommended that mother's petition be denied. Mother was residing in a sober living facility with her newborn child, and had remained enrolled in the treatment program. She had failed to complete one drug test, but had tested negative 12 times between January 2016 and June 2016. She was in the last phase of the treatment program and making good overall progress. Nevertheless, the DPSS "continue[d] to have concerns" that mother's "endeavors to change her circumstances have not been sustainable over a significant period of time," and argued that, in light of the "healthy and loving bond" established between the child and grandmother, offering mother additional services would not be in the child's best interests.
On August 1, 2016, the juvenile court denied mother's section 388 petition, finding mother's circumstances "appear to be changing" but "have not changed." The court further found that the requested modification of its previous orders was not in the child's best interest, observing that the child had been placed with grandmother for approximately a year, and she was "really in the only home that she knows at this point." The court also observed that the child had not had "much contact with her mother in large part because of the restraining order that is in effect protecting the grandmother."
On the same date, the juvenile court adjudicated section 366.26 issues, terminating parental rights, and ordering a permanent plan of adoption.
II. DISCUSSION
Mother contends the juvenile court abused its discretion by denying her section 388 petition requesting additional reunification services, arguing that she established changed circumstances and that it was in the best interest of the child to offer her additional reunification services. We find no abuse of discretion.
"Section 388 permits '[a]ny parent or other person having an interest in a child who is a dependent child of the juvenile court' to petition 'for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court' on grounds of 'change of circumstance or new evidence.' (§ 388, subd. (a).)" (In re Lesly G. (2008) 162 Cal.App.4th 904, 912.) "The parent bears the burden to show both a '"legitimate change of circumstances"' and that undoing the prior order would be in the best interest of the child." (In re S.J. (2008) 167 Cal.App.4th 953, 959 (S.J.).)
Once reunification services have been denied or terminated, "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 (Stephanie M.).) Thus, "after reunification services have terminated, a parent's petition for . . . an order . . . reopening reunification efforts must establish how such a change will advance the child's need for permanency and stability." (In re J.C. (2014) 226 Cal.App.4th 503, 527.)
"The petition is addressed to the sound discretion of the juvenile court, and its decision will not be overturned on appeal in the absence of a clear abuse of discretion." (S.J., supra, 167 Cal.App.4th at pp. 959-960.) "'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.'" (Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
We do not find the juvenile court's finding with respect to mother's showing of purportedly changed circumstances to be an abuse of discretion. As of the time of the court's ruling, mother's sobriety was still a relatively new phenomenon, begun only after months of failing to comply with the court-ordered reunification plan, and within weeks of the end of the reunification period. (See In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9 (Kimberly F.) [doubting that a parent who loses custody due to consumption of illegal drugs and whose "compliance with a reunification plan is incomplete during the reunification period" could show changed circumstances, because "[i]t is the nature of addiction that one must be 'clean' for a much longer period than 120 days to show real reform."].) Although mother had been doing well within the confines of her program and sober living home, she had not yet completed the program when she filed her section 388 petition, and there was no evidence that she could remain sober outside of such structure. Even if the evidence could arguably have supported a different conclusion, as mother urges, the juvenile court's determination that mother had demonstrated only changing, not changed, circumstances did not exceed the bounds of reason.
We also find no abuse of discretion in the juvenile court's analysis of whether providing mother additional reunification services would be in the child's best interest. The court properly focused on the child's need for permanence and stability. (See Stephanie M., supra, 7 Cal.4th at p. 317.) The child had been in a stable placement with grandmother for approximately a year, "which is a significant period of time for a three year old." The grandmother was the prospective adoptive parent, committed to maintaining the child in the "only home that she knows" on a permanent basis. Although mother's circumstances were much improved—certainly, active participation in a program and residency in a sober living facility is better than active, chronic substance abuse—her ability to provide the child permanency and stability was hardly a settled question. Mother's contact with the child had been limited, at least in part due to the restraining order in place to protect the grandmother. The relationship between the child and the grandmother, in contrast, was characterized by the social worker as "a healthy and loving bond." The juvenile court's decision that the child's best interest would not be best served by delaying permanency and potentially disrupting the child's relationship with the grandmother to allow mother further opportunity to reunify was not beyond the bounds of reason.
In arguing for a different conclusion, mother relies primarily on authority that is inapposite. One case she cites extensively, In re Michael D. (1996) 51 Cal.App.4th 1074, holds that a parent's burden of proof in establishing changed circumstances and the best interest of the child is the preponderance of the evidence, not clear and convincing evidence, even after reunification services have been terminated and the statutory presumption that the child will be returned to parental custody no longer applies. (Id. at pp. 1078, 1086.) There is no indication in the record that the juvenile court in the present case held mother to a higher burden of proof than appropriate, or otherwise held mother to an inappropriate standard; it assigned the evidence different weight than mother would prefer, but, as discussed above, remained well within the bounds of reason.
Mother also discusses at length the factors articulated in Kimberly F. in discussing the court's determination of the child's best interests. The Kimberly F. factors do not account for the need of the child for permanency and stability emphasized in Stephanie M., supra, 7 Cal.4th at p. 317. (See In re J.C. (2014) 226 Cal.App.4th 503, 527 [declining to apply Kimberly F. factors on this basis].) Even accepting mother's application of the Kimberly F. factors—and there is room for argument with respect to her analysis—she fails to show that the juvenile court abused its discretion in determining the child's best interest. She points to nothing in the record, and upon review we discern nothing in the record, compelling the conclusion that the child's need for permanency and stability would be best furthered by her proposed modification.
Mother is to be commended for her efforts to improve her life. We express our hope that by continuing to do so, she will eventually be able to have a healthy relationship of some sort—even if not a parental relationship—with the child, given that the prospective adoptive parent is her own mother, the child's grandmother. Nevertheless, the juvenile court did not abuse its discretion either when it concluded mother's circumstances might be changing, but had not yet changed, or when it found that mother had not shown child's best interests would be served by further delaying permanency and stability in favor of rewarding mother for her recent progress.
III. DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J. We concur: RAMIREZ
P.J. MCKINSTER
J.