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In re L.V.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Feb 9, 2012
E053847 (Cal. Ct. App. Feb. 9, 2012)

Opinion

E053847

02-09-2012

In re L.V., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. J.B., Defendant and Appellant.

Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant. Pamela J. Walls, County Counsel, Carole A. Nunes Fong, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. RIJ114530 & 10JD0022)


OPINION

APPEAL from the Superior Court of Riverside County. Martin H. Swanson, Judge, Temporary Judge. (Pursuant to Cal. Const., art VI, § 21.) Affirmed.

Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant.

Pamela J. Walls, County Counsel, Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for Minor.

L.V. (minor) (born February 2010) came to the attention of the Riverside County Department of Public Social Services (the department) on May 22, 2010, when his mother, defendant and appellant J.B. (mother) was arrested for attempting to smuggle methamphetamine, marijuana, and a cell phone into a California state prison while visiting minor's father with minor. Mother eventually pled guilty to charges stemming from the incident, and was sentenced to two years in prison with a projected release date of May 23, 2011. The juvenile court denied mother reunification services pursuant to Welfare and Institutions Code section 361.5, subdivisions (b)(10), (b)(11) and (e)(1)because it had previously terminated reunification services as to minor's sibling (M.H.), had previously terminated mother's parental rights to M.H., and mother was incarcerated. Prior to the selection and implementation hearing, mother filed a section 388 petition on a JV-180 form requesting reunification services and vacation of the section 366.26 hearing. The juvenile court denied the request and terminated mother's parental rights. On appeal, mother contends the court abused its discretion in denying her section 388 petition. We affirm the judgment.

Father is not a party to this appeal.

All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

FACTUAL AND PROCEDURAL HISTORY

On May 22, 2010, mother brought minor with her to visit father in prison; minor was three and a half months old. Prison officials had been monitoring father's telephone calls, and noted an apparent conspiracy between father and mother to smuggle items into the prison. The plan involved mother smuggling methamphetamine, marijuana, and a cell phone into the prison, for which she would be paid $200. Father, in turn, would resell the items in prison. After initially denying any illicit activity to investigators at the prison, mother admitted that she had "'weed and speed'" on her person. She removed the items from where they had been secreted; investigators also found a cell phone and charger on her.

The department had been involved with mother on three prior occasions. On January 5, 2007, allegations of general neglect and emotional abuse were made against mother regarding M.H. Mother was on probation for assaulting the maternal grandmother with a deadly weapon. She reportedly yelled, "'I don't fuckin' want this kid, I don't want this kid.'" She threatened to "bash" the maternal grandmother's head in. Mother was arrested and tested positive for a stimulant. The dependency case against her was closed as unfounded because mother was participating in her probation case plan and was deemed to have family support to help her care for M.H.

On May 22, 2007, an allegation of severe neglect was made against mother. Mother reportedly stated she hated her life and her child. She threatened to slash maternal great-grandmother's (MGG) throat and kill the reporting party. The reporting party disclosed mother had previously threatened to kill M.H. The altercation apparently occurred because M.H. was living with MGG, and MGG had left M.H. in the care of someone else contrary to the wishes of mother. MGG refused to return M.H. to mother's custody at the latter's request. A referral of general neglect was made in February 2010, when minor was born. The referral was closed as unfounded.

On September 17, 2008, the juvenile court terminated reunification services offered to mother with respect to M.H., due to mother's failure to complete a drug treatment program, and noncompliance with court ordered random drug testing. Mother's parental rights as to M.H. were terminated on May 14, 2010. Mother's criminal history reflected an arrest for being under the influence of a controlled substance on January 6, 2007.

Mother's criminal history as recited in the jurisdictional report fails to indicate the disposition of the arrest. Mother testified at the section 388 hearing she was arrested, but not charged because her drug test came back negative. However, at least two reports noted that mother had tested positive for "a stimulant."

The juvenile court detained minor on May 26, 2010, and took jurisdiction over minor on June 9, 2010. The disposition report filed August 25, 2010, reflected "mother has a substance abuse history and stated that she last used methamphetamine nearly 2 years ago." The report noted mother stated minor was "drug exposed at birth." Mother "stated that she does have a substance abuse history and her drug of choice is methamphetamine. She stated that she was 15-years-old when she started using because 'it was the thing to do.' [Mother] stated that she last used methamphetamine almost [two] years ago." Both father and mother reported that though they had sustained convictions for attempting to smuggle drugs into the prison, neither of them were using at the time. Mother expressed a preference that minor be placed with PGF; MGG, who had adopted M.H.; or maternal grandfather. When MGG adopted M.H., she signed a form stating she would not adopt another child due to her medical condition and age; nonetheless, she requested placement of minor with her.

The original August 30, 2010, disposition hearing was continued to October 12, 2010, to permit an interstate compact on the placement of children (ICPC) evaluation of paternal grandfather (PGF) and MGG. MGG had recently moved to Missouri and PGF lived in Arizona. The hearing was subsequently continued again to November 23, 2010, at the request of father.

Father denied this. Mother also later denied using drugs during her pregnancy. Mother consistently reported she had not used for two years. The fact that a referral was made against mother at the time of minor's birth, and determined unfounded, supports a determination that minor was, in fact, not "drug exposed" at birth. However, mother also reported attending a drug recovery program during her pregnancy with minor, which she failed to complete.

In an addendum report filed October 6, 2010, the social worker reported that PGF had a supervised visit with minor on August 30, 2010. Mother had begun a 90-day substance abuse program in prison on September 13, 2010. The social worker noted, "[a]t this early state in treatment, [mother] appears motivated to address previous negative thought and behavioral patterns and to work toward reestablishing a relationship with her child." In another addendum report filed November 18, 2010, the social worker reported an Arizona ICPC worker had found PGF's home appropriate for placement of minor. Mother now expressed a desire that minor be placed only with MGG.

At the contested dispositional hearing on November 23, 2010, mother's counsel noted mother was not in attendance as she was due to complete her substance abuse program on December 10, 2010, and would likely have been terminated from the program had she been transported to the hearing. The juvenile court removed minor from parents' custody, denied reunification services, and set the selection and implementation hearing.

In a subsequent report filed March 11, 2011, the social worker noted her Missouri ICPC contact had evaluated MGG on November 23, 2010. The social worker reported her ICPC contact observed MGG had "a lot of children in her home and appears to be managing well. However, he is concerned that placing a baby in the home would create more stress." MGG had a criminal record and had lost custody of her own children at one point for a year. On August 5, 2010, MGG had a visit with minor, which went well.

We include facts regarding MGG because mother contends the juvenile court erred in placing minor with PGF instead of MGG; however, that issue is not before us because it was not the subject of mother's requests in her section 388 petition, the denial of which she appeals here.

PGF had unsupervised visits with minor from November 23, 2010, to November 28, 2010; from December 22, 2010, to December 26, 2010; and from February 4, 2011, to February 6, 2011. On March 7, 2011, minor was placed with PGF with instructions that he return minor to court on March 28, 2011, the date for the scheduled disposition hearing. Final ICPC approval for placement with PGF was anticipated to have occurred by that date. PGF indicated his willingness to allow father, mother, and M.H. to maintain contact with minor under his supervision. The social worker received a letter and certificates of completion reflecting that mother had completed her substance abuse treatment program, anger management, relapse prevention, parenting skills, an eight-hour relationship course called "'Couplehood,'" and another relationship course called "Mastering the Mysteries of Love I."

The department pointedly questions the relevance of "marriage" courses because mother was never married to father; however, the certificate for one program indicates coursework in communication, listening, empathy, goal setting, emotional and personal growth; and for the other program, in communication skills, anger management and relationship skills.
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On March 15, 2011, the department filed an ex parte application seeking authorization to place minor in Arizona. When notified of the department's intent to place minor with PGF, mother stated she wanted minor placed with PGF only if minor could not be placed with MGG. The department noted it had still not received ICPC approval for placement of minor with MGG.

On March 25, 2011, mother filed her section 388 petition requesting reunification services and vacation of the section 366.26 hearing. Mother alleged her completion of the aforementioned programs and continued sobriety constituted a change in circumstances. She averred reunification services would benefit the minor because mother continued to love and care for him, and services would allow their relationship to continue and strengthen. On March 28, 2011, both the department and father requested a continuance. The juvenile court authorized an extended 30-day visit with PGF in Arizona. It also authorized an after court visit between minor and mother, and continued the matter to May 11, 2011.

On May 6, 2011, the social worker filed an addendum report in which she reported that minor initially smiled and attempted to talk with mother during the after court visit; however, he ended up screaming and crying. Mother eventually asked that minor be taken back to PGF and the visit ended. Mother was released from prison on April 11, 2011; she was living with MGG in Missouri. She had yet to enroll in any substance abuse services; however, she informed the social worker her parole officer had placed her on a wait list for outpatient drug treatment and individual counseling services for depression. Minor had been placed with PGF since March 28, 2011, and had been noted to have "bonded with [PGF] and is able to be provided with a stable and loving home."

On May 11, 2011, the juvenile court held the hearing on mother's section 388 petition. Mother testified that she completed substance abuse services and tested negative for narcotics while incarcerated. She started using methamphetamine when she was 13 years old, but had not used drugs since 2007; she had been tested twice by her parole agent with negative results since her release from prison. Mother was living with MGG in Missouri, was unemployed, and was unable to support minor at that time. She had not enrolled in any drug treatment program since her release, but was on a waiting list for an aftercare program. Mother had visited with minor a total of three times during the past year, including the morning of the instant hearing. However, since her release she spoke on the phone with minor three to four times every week.

The juvenile court denied mother's section 388 petition reasoning, "balancing . . . permanence for [minor] against what you've requested and the amount of contact that [minor] has had with you, and I know he never left your heart or your mind, but given his age at the time you . . . were taken out of his life, my finding is that as to that second prong, that [the] best interest and the permanence that he's in need of, that the current plan for him and the current placement for him outweighs your request." Thereafter, the juvenile court terminated mother's parental rights.

DISCUSSION

Mother contends the juvenile court abused its discretion when it denied her section 388 petition. We hold the juvenile court acted within its discretion.

"The juvenile court may modify an order if a parent shows, by a preponderance of the evidence, changed circumstance or new evidence and that modification would promote the child's best interests. [Citations.] This is determined by the seriousness of the problem leading to the dependency and the reason for its continuation; the strength of the parent-child and child-caretaker bonds and the time the child has been in the system; and the nature of the change of circumstance, the ease by which it could be achieved, and the reason it did not occur sooner. [Citation.] After termination of services, the focus shifts from the parent's custodial interest to the child's need for permanency and stability. [Citation.] 'Whether a previously made order should be modified rests within the dependency court's discretion, and its determination will not be disturbed on appeal unless an abuse of discretion is clearly established.' [Citation.] The denial of a section 388 motion rarely merits reversal as an abuse of discretion. [Citation.]" (In re Amber M. (2002) 103 Cal.App.4th 681, 685-686.)

Section 388 can provide "an 'escape mechanism' when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528.) "Even after the focus has shifted from reunification, the scheme provides a means for the court to address a legitimate change of circumstances while protecting the child's need for prompt resolution of his custody status." (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) However, the best interests of the child are of paramount consideration when a petition for modification is brought after termination of reunification services. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)

Chronic substance abuse is generally considered a more serious problem and, therefore, is less likely to be satisfactorily ameliorated in the brief time between termination of services and the section 366.26 hearing. (In re Kimberly F., supra, 56 Cal.App.4th at pp. 528, 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."]; In re Amber M., supra, 103 Cal.App.4th at p. 686 [no abuse of discretion in denying section 388 petition where mother established only a 372-day period of abstinence.]; In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081 [Fourth Dist., Div. Two] [three-month period of sobriety insufficient to show changed circumstances].)

Here, the evidence adduced below established that mother was chronically involved with controlled substances. Mother testified that she began using methamphetamine at the age of 13. At the time of the hearing on her section 388 petition, mother was 21 years old. Although mother testified that she had not used any controlled substances since 2007, several facts from the record undermine this assertion.

First, mother's reunification services with respect to M.H. were terminated on September 17, 2008, due to her failure to complete a drug treatment program and her noncompliance with court ordered random drug testing. This, at least implicitly, supports a determination that she continued to use drugs in late 2008. Second, in the disposition report filed August 25, 2010, mother reported that she had not used drugs in "nearly" two years. This would mean mother was using drugs as late as August or September 2008, contradicting her assertion that she last used in 2007. Third, mother stated that minor was born "drug exposed," effectively conveying the impression that she had used drugs while pregnant with him. Since minor was born in February 2010, this would put the end of her usage at earliest sometime in April or May 2009. Fourth, mother reportedly attended a substance abuse treatment program while two to three months pregnant with minor, though she failed to complete it. This further supports a conclusion that, at best, mother stopped using sometime in 2009.

Fifth, although mother testified she consistently tested negative while incarcerated, and twice tested negative since her release, mother failed to attach any documentation of such tests. Thus, mother failed to establish affirmatively that she remained clean both during and after her incarceration. Sixth, the incipient incident in the juvenile proceedings was mother's attempt to smuggle narcotics into a prison; therefore, mother continued her involvement with drugs at least as late as her arrest in May 2010. Thus, mother had an extensive involvement with controlled substances lasting at least six years. Indeed, mother had also been arrested for being under the influence of a controlled substance on a prior occasion.

Mother's efforts at ameliorating her substance abuse problem were simply not significant enough when compared with her extensive history of drug involvement. As noted above, mother had participated in and dropped out of a drug treatment program on a prior occasion. Mother's participation in a 30-day treatment program while incarcerated was commendable, but failed to establish that she had the ability to remain sober when released. Indeed, although mother alleged she was on a wait list for an aftercare program, mother failed to enroll in any drug treatment programs since her release. Mother failed to establish definitively any period of sobriety. Thus, her completion of programs did not establish a change in circumstances sufficient to warrant reversal of the juvenile court's discretion denying her request for reunification services.

Furthermore, mother failed to establish that reunification services and vacation of the selection and implementation hearing would be in the best interest of minor. Minor was only three and a half months old when the department detained him. Since mother's incarceration, she visited with him only three times. Her first visit on June 8, 2010, consisted of a tele-visit whereby mother and minor saw each other via monitors. The visit consisted of mother telling minor she loved him six times during the course of one minute and then asking the social worker questions during the remainder of the visit. The second occurred on March 28, 2011, after a court hearing; it ended with minor screaming and crying; mother asked that he be returned to PGF. The third and final visit occurred the morning of the hearing on mother's section 388 petition. The social worker noted in the final addendum report that "mother has not had any physical contact with her child in nearly a year due to her incarceration."

Mother's minimal contact with minor, particularly during the last year of his life, was significantly outweighed by the attachment he had developed with PGF. PGF initially visited with minor on August 30, 2010. PGF then had unsupervised visits with minor from November 23, 2010, to November 28, 2010; December 22, 2010, to December 26, 2010; and February 4, 2011, to February 6, 2011. Minor was eventually placed with PGF on March 7, 2011, where he apparently remained on the day of the section 388 petition hearing on May 11, 2011, two months later. PGF had been in minor's life approximately the same duration of time as mother, but had taken care of him in the most recent, crucial period of his life. The social worker noted minor had "bonded with [PGF] and is able to be provided with a stable and loving home." The juvenile court acted within its discretion in determining that minor's need for stability and permanence were best accomplished by denying mother reunification services and proceeding with the selection and implementation hearing.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.
We concur:

HOLLENHORST

Acting P. J.

McKINSTER

J.


Summaries of

In re L.V.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Feb 9, 2012
E053847 (Cal. Ct. App. Feb. 9, 2012)
Case details for

In re L.V.

Case Details

Full title:In re L.V., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Feb 9, 2012

Citations

E053847 (Cal. Ct. App. Feb. 9, 2012)