Opinion
E066695
04-20-2017
In re J.H., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.W. et al., Defendants and Appellants.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant D.W. Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant J.H. Jean-Rene Basle, County Counsel, and Dawn M. Martin, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J264301) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed. William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant D.W. Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant J.H. Jean-Rene Basle, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
D.W. (Mother) and J.H. (Father) have a history of abusing drugs that led to the San Bernardino County Department of Children and Family Services (CFS) removing their children from their home. The parents' reunification services were terminated as to their two older children, and the children currently reside with their legal guardian. Both parents were denied reunification services as to their then six-month-old daughter J.H. pursuant to Welfare and Institutions Code section 361.5, subdivisions (b)(10), (b)(12), and (b)(13). About four months later they each filed section 388 petitions, which were summarily denied. The parents appeal from the juvenile court's orders denying their section 388 petitions.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
On appeal, both parents argue the juvenile court erred in summarily denying their section 388 petitions without a hearing. We conclude the juvenile court did not err and affirm the orders denying the parents' section 388 petitions.
II
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father are parents of three young children: four-year-old M.H., three-year-old S.H., and 11-month old J.H. They both have a history of abusing drugs, a lengthy criminal history, and a history with CFS. Mother began using amphetamines/methamphetamines on a daily basis when she was 12 years old. She has a criminal history involving drug charges from 2009 through 2013, as well as two prior charges for robbery in 2001 and 2002. Father also has a criminal history involving numerous arrests and/or convictions for theft, drugs, burglary, battery on spouse/cohabitant, attempted burglary, and vehicle theft from 2008 through 2015. Father is on formal probation until January 2019.
The parents had a juvenile dependency case involving M.H. and S.H. from October 2013 through March 2015. Mother was incarcerated at the time, and her reunification services were terminated in 2014. A few months later, Father's reunification services were terminated. M.H. and S.H. now reside with their legal guardian, a non-relative extended family member.
While pregnant with J.H., Mother went to the hospital on February 9 and again on February 18, 2016, to be induced. She tested positive for amphetamines on both occasions. Mother gave birth to J.H. in late February 2016. J.H. tested negative at birth and did not display withdrawal symptoms. J.H. was eventually discharged to the custody of her parents.
After receiving a referral, the social worker investigated the family. Mother denied current drug use despite the recent positive drug tests and claimed she had been clean for two years. She asserted that she reached into the toilet to retrieve a drug pipe tossed in by Father's " 'street sister' " who was " 'throwing her drugs out.' " Mother believed the drug was absorbed into her system from the toilet water before she rinsed her hands.
Father reported that he last used drugs in November 2015, when he was arrested for possession for sale. He claimed that he was sober since his release on January 5, 2016, and that he drug tests on demand for his employment an average three or four times per week. He was also required to attend one Narcotics Anonymous (NA) meeting per day as part of his program for parolees.
CFS detained J.H. based on Mother's positive drug test, Father's recent drug use and arrest, and the parents' history with CFS. And, on March 1, 2016, CFS filed a section 300 petition on behalf of J.H. pursuant to section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling), based on the parents' substance abuse and failure to previously reunify with J.H.'s siblings.
At the March 2, 2016 detention hearing, J.H. was formally detained and the parents were provided with services pending the dispositional hearing, supervised visitation, and ordered to drug test. The parents were also informed that they may not be provided with reunification services.
In the March 23, 2016 jurisdiction/disposition report, CFS recommended that no reunification services be offered to either parent pursuant to section 361.5, subdivisions (b)(10) and (b)(13), and that a section 366.26 hearing be set to establish a permanent plan of adoption for J.H. When interviewed, Mother again claimed that she had not used drugs for over two years. She continued to maintain that she recently tested positive because she was helping Father's " 'street sister' " dispose of a drug pipe. She acknowledged she had a history of using drugs on a daily basis since she was 12 years old. Mother stated that she was incarcerated during the prior dependency matter and could not take advantage of the reunification services offered to her.
Father claimed that he had been taking care of his drug addiction since he was released from prison by enrolling in a drug program and testing every day he attended the program. He agreed with Mother's explanation of her positive drug test. Father also stated that he was no longer involved with criminal activity and that he was abiding by the terms and conditions of his parole. The parents had been residing with the maternal grandfather but had recently moved out of the home due to the maternal grandfather's use of marijuana, and were living in a hotel until they could find adequate housing.
CFS opined that the parents had not shown any significant change in their lifestyle since the removal and termination of their reunification services for their older children in 2014. CFS referred Mother to counseling, parenting classes, substance abuse classes, and substance abuse testing. Father indicated that he was enrolled in a program called Probationers Recovering through Intervention and Drug Education (PRIDE) through the probation department and that he attended four nights a week. At PRIDE, Father received substance abuse classes, individual therapy, and group therapy. Both parents were attending NA meetings and had provided an attendance sheet to CFS. Both parents also visited J.H. once a week for two hours and the visits were described as appropriate. The parents willingly engaged and interacted with J.H.
At the March 23, 2016 jurisdictional/dispositional hearing, the matter was referred to mediation, and the hearing was set contested in the event mediation was not successful.
The parties were unable to reach a mediated resolution and, therefore, the matter was heard on April 20, 2016. Following arguments, the juvenile court found the allegations in the petition true and declared J.H. a dependent of the court. The juvenile court denied reunification services to the parents pursuant to section 361.5, subdivisions (b)(10), (b)(12), and (b)(13).
Less than four months later, on August 3, 2016, Father filed a section 388 petition seeking increased and unmonitored visits, as well as weekend and overnight visits in addition to informal services under a permanent plan living arrangement for eventual return of J.H. to his custody. He claimed that he had been testing negative for drugs, consistently attending a substance abuse outpatient treatment program, parenting and counseling, and regularly visiting J.H. He also alleged that he had a stable income and housing and that he had a bond with J.H. In support, Father attached a letter dated July 11, 2016, from Mental Health Systems verifying his progress, a certificate award from PRIDE noting Father had been clean for six months, a certificate of completion of phase one from PRIDE, Father's attendance sheets from NA meetings, and Father's negative drug test results.
On August 8, 2016, the juvenile court summarily denied Father's section 388 petition, finding that there was no evidence of changed circumstances or that the proposed change order would be in J.H.'s best interest.
On August 12, 2016, Mother filed a section 388 petition contending that she had engaged in services, and that she had been diligently visiting J.H. and established a bond to the extent possible under the current circumstances. She requested that J.H. be returned to her care under family maintenance or she be granted reunification services to reunify with J.H. In support, Mother attached an attendance sheet for her parenting program, a proof of discharge from probation on May 7, 2016, a certificate of completion from her outpatient substance abuse program dated June 23, 2016, a certificate of completion of a 12 of 12 hours parenting program dated June 18, 2016, and attendance sheets from her NA meetings and her group therapy.
On August 16, 2016, the juvenile court summarily denied Mother's section 388 petition, finding no change of circumstances, and the change order was not in the best interest of the child.
CFS recommended that the section 366.26 hearing be continued for 120 days to allow for the permanent plan of adoption to be implemented. A concurrent adoptive home had been identified for J.H., but CFS requested more time to complete an assessment. J.H. had been in her former placement from February 26, 2016 through June 2, 2016. However, she was removed to a special needs home, which was her concurrent prospective adoptive home, due to her cleft palate. J.H. and her prospective adoptive caregivers appeared bonded to each other, and they were providing her basic needs. Meanwhile, the parents had continued to regularly visit J.H.
On August 18, 2016, the juvenile court granted a 90-day continuance of the section 366.26 hearing and set the matter for November 16, 2016.
Thereafter, on August 18, 2016, both Mother and Father filed separate notices of appeal from the denial of their section 388 petitions without a hearing.
III
DISCUSSION
Mother argues the juvenile court erred in summarily denying her section 388 petition because her petition with supporting attachments showed a prima facie case for changed circumstances and best interest of the child. Father also contends the juvenile court abused its discretion in summarily denying his section 388 petition without a hearing.
Under section 388, a juvenile court order may be changed or set aside "if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806 (Zachary G.).) "[I]f the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition." (Ibid.; § 388, subd. (d) ["If it appears that the best interests of the child . . . may be promoted by the proposed change of order, . . . the court shall order that a hearing be held . . . ."].) The prima facie requirement is not met "unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition." (Zachary G., at p. 806.) We review the juvenile court's order denying a hearing for abuse of discretion. (Id. at p. 808.) "It is rare that the denial of a section 388 motion merits reversal as an abuse of discretion . . . ." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 522.)
Mother and Father contend the juvenile court should have held a hearing on their section 388 petitions because they established a prima facie showing of changed circumstances and that the proposed change would promote the best interest of the child. Mother alleged her changed circumstances consisted of successful completion of probation, being free from custody unlike in the prior dependency case involving her older children, and effectively working on her sobriety and parenting. Father alleged his changed circumstances consisted of participating in the PRIDE program for parolees, attending daily NA meetings, and testing negative for drugs.
For the juvenile court's denial of reunification services under section 361.5, subdivision (b)(10), Mother also alleges that "an evidentiary hearing is required, in part, to determine the foundational fact of why her older children were previously removed besides the fact that she was incarcerated." As to the denial of reunification services pursuant to section 361.5, subdivision (b)(13), she claims that the record in the older siblings' dependency case shows only that she failed on one occasion to comply with a reunification plan and there is no information in that record to establish that she resisted prior court-ordered substance abuse treatment or whether she failed or refused to comply with such treatment. Mother, therefore, believes an evidentiary hearing is required to determine "how her newly embraced sobriety holds up against her previous substance-abuse treatment."
To the extent Mother is attempting to challenge the juvenile court's decision to bypass reunification services to her at the April 20, 2016 jurisdictional/dispositional hearing, we find Mother waived this argument for failing to raise it in the juvenile court below and for failing to appeal from that decision. (In re Aaron B. (1996) 46 Cal.App.4th 843; In re Crystal J. (1993) 12 Cal.App.4th 407.) --------
We need not decide whether the juvenile court erred in finding there was no prima facie showing of changed circumstances because Mother and Father failed to make a prima facie showing that granting the section 388 petitions and providing reunification services was in the best interest of the child.
Parent and child share a fundamental interest in reuniting up to the point at which reunification efforts cease. (In re R.H. (2009) 170 Cal.App.4th 678, 697, disapproved on another ground in John v. Superior Court (2016) 63 Cal.4th 91, 98-100.) By the point of a section 366.26 hearing to select and implement a child's permanent plan, however, the interests of the parent and the child have diverged. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254.) Therefore, after reunification efforts have terminated or bypassed, the court's focus shifts from family reunification toward promoting the child's needs for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) This is a difficult burden to meet when reunification services have been bypassed or terminated. This is because, "[a]fter the termination of reunification services [or bypass of services], a parent's interest in the care, custody and companionship of the child is no longer paramount. [Citation.]" (In re Angel B. (2002) 97 Cal.App.4th 454, 464 (Angel B.).) In fact, there is a rebuttable presumption continued foster care is in the child's best interest. (Ibid.) Such presumption applies with even greater strength when adoption is the permanent plan. (Ibid.) "A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child." (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
At the time the parents filed their respective section 388 petitions, less than four months after services were bypassed and shortly before the section 366.26 hearing, the child's interest in stability was the juvenile court's foremost concern, outweighing any interest in reunification. The prospect of allowing the parents reunification services or family maintenance services to see if Mother and Father would and could do what they were required to do to regain custody would not have promoted stability for the child, and thus would not have promoted the child's best interest. (Angel B., supra, 97 Cal.App.4th at p. 464.) J.H. was removed from parental custody when she was three days old in February 2016. Since that time, the parents have only had supervised visitation. Although J.H. was moved into her adoptive home in June 2016 due to her cleft palate, she had resided with her prospective adoptive parents for a far greater amount of time than she had resided with her parents. Granting reunification services to Mother and Father would only prolong J.H.'s adoption into a stable and loving home. The social worker noted that J.H. and her prospective adoptive parents appeared bonded to each other, and that they were meeting J.H.'s needs.
Moreover, the parents had a long history of abusing drugs. Mother had used drugs on a daily basis since she was 12 years old. Although she claimed that she had not used drugs for over two years, she tested positive for amphetamines during her pregnancy with J.H. Furthermore, she gave an implausible explanation of the positive drug tests, claiming it was absorbed into her system when she reached into a toilet to retrieve a drug pipe. In any event, Mother had only recently begun to make efforts to combat her long-standing drug problem. It was not until J.H. was detained that Mother began attending NA meetings. Father also had only recently demonstrated his sobriety. He last used drugs in November 2015, when he was arrested for possession of drugs for sale. And, he claimed he was sober since his release on January 5, 2016. The juvenile court reasonably concluded that, under such circumstances and in light of the parents' history of abusing drugs, Mother and Father had not made a prima facie showing of changed circumstances or that reinstating reunification services would have promoted stability for the child and be in her best interest. (Angel B., supra, 97 Cal.App.4th at p. 464.)
In Angel B., supra, 97 Cal.App.4th 454, the court rejected the mother's contention the juvenile court erred in denying her section 388 petition without holding a hearing. The mother in Angel B. had a long history of drug abuse, unsuccessful rehabilitation attempts, and failure to reunify with another child. After the mother was denied reunification services, she began to improve, enrolling in a treatment program, testing clean for four months, completing various classes, and obtaining employment. Regular visits with her child also went well. (Id. at p. 459.) Nevertheless, when she filed her section 388 petition for reunification services, the court summarily denied her petition without a hearing. The Court of Appeal affirmed, finding no abuse of discretion in the juvenile court refusing to hold a hearing. (Id. at p. 462.)
The appellate court in Angel B. acknowledged the petition showed the mother was doing well, "in the sense that she has remained sober, completed various classes, obtained employment, and visited regularly with [the child]." (Angel B., supra, 97 Cal.App.4th at pp. 464-465.) The court also assumed for purposes of the appeal "that this time her resolve is different, and that she will, in fact, be able to remain sober, remain employed, become self-supporting and obtain housing." (Id. at p. 465, italics omitted.) Nevertheless, the court concluded "such facts are not legally sufficient to require a hearing on her section 388 petition." (Ibid.) The court explained: "[T]here is a rebuttable presumption that, in the absence of continuing reunification services, stability in an existing placement is in the best interest of the child, particularly when such placement is leading to adoption by the long-term caretakers. [Citation.] To rebut that presumption, a parent must make some factual showing that the best interests of the child would be served by modification." (Ibid.) The mother in Angel B. did not make such a showing. Nor do Mother and Father here.
Mother's section 388 petition stated only that she believed granting her section 388 petition was in the J.H.'s best interest because she had "diligently visited with the child and established a bond to the extent possible under the current circumstances." Father's section 388 petition asserted merely that he believed granting his section 388 petition was in J.H.'s best interest because he had a bond with her and wanted to raise her with stability and permanency. Father also stated that he had been "clean, honest and cooperative with CFS" and that he had a stable income and home. He further noted that he was aware of his past history, had insight into "reforming his past," and was "working diligently to provide for [J.H.]." Other than the statement Mother visited J.H. regularly, the parents' allegations are conclusory, not a factual showing that granting reunification services would promote the child's best interest. (In re Ramone R. (2005) 132 Cal.App.4th 1339, 1348, 1349 ["allegations of her [section 388] petition were to be liberally construed, but conclusory claims are insufficient to require a hearing"].)
The parents' petitions offered no evidence of the nature of their own bond or that J.H. wanted to live with the parents. (See Angel B., supra, 97 Cal.App.4th at p. 465 [the mother's petition, denied without a hearing, stated that she had bonded with the child, who was happy to see her and reached for her on their visits].) We conclude neither Mother nor Father had made a prima facie showing that J.H.'s best interest would be served by placing her with either parent. The juvenile court therefore did not abuse its discretion in summarily denying the parents' section 388 petitions without a hearing.
IV
DISPOSITION
The juvenile court's orders summarily denying the parents' section 388 petitions are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. SLOUGH
J.