Opinion
E068082
11-09-2017
In re D.W., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. K.L., et al., Defendants and Appellants.
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant, K.L. Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant, B.W. Jean-Rene Basle, County Counsel, Danielle E. Wuchenich, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J263278) OPINION APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed. Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant, K.L. Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant, B.W. Jean-Rene Basle, County Counsel, Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.
K.L. is the mother (mother) of D.W., who was 16 months old on the date of the challenged orders made at a hearing held under Welfare and Institutions Code section 366.26, terminating parental rights and selecting adoption as D.W.'s permanent plan. Mother argues the court abused its discretion when it summarily dismissed mother's petition for modification under section 388 for failure to establish a prima facie case of changed circumstances and D.W.'s best interest. B.W. is D.W.'s father (father). Father joins in mother's arguments and requests that if mother's parental rights be reinstated, his rights be reinstated as well. As explained post, we find no error and affirm the court's orders.
All section references are to the Welfare and Institutions Code, except where otherwise indicated. --------
FACTS AND PROCEDURE
Petition and Detention
In December 2015, both mother and the newborn D.W. tested positive for methamphetamines and amphetamines. Mother also tested positive for marijuana. Twice in September 2015, while pregnant with D.W., mother had tested positive for amphetamines, opiates, and marijuana.
On December 14, 2015, San Bernardino County Children and Family Services (CFS) filed a section 300 petition alleging mother and father had failed to protect D.W. in that both had a history of substance abuse and domestic violence, which placed D.W. at substantial risk of physical and emotional harm or neglect.
Mother admitted to smoking marijuana every couple of weeks while pregnant. She stated she had ingested crystal meth approximately five times since February 2015 so she could finish her job when she was working late. She stated that three of these times were while she was pregnant with D.W. She claimed that, other than this episode, she had not use methamphetamines since 2001.
Father smoked marijuana because of back pain and claimed to have a medical marijuana card. Father was not present at D.W.'s birth and he was not listed on the birth certificate. Neither were he and mother living together when D.W. was conceived. Father asked for a paternity test.
The detention hearing was held on December 15, 2015. The court ordered D.W. detained and authorized weekly two-hour visits for mother. The court ordered mother to drug test that day.
Jurisdiction and Disposition
CFS recommended the court sustain the petition and remove D.W. so he could be placed in out of home care, with reunification services provided to mother and father.
Mother stated she began using marijuana at age 18 and continued while pregnant with DW. She claimed she had a Norco prescription for pain from giving birth to D.W., but provided neither the prescription nor the name of the prescribing physician. Mother's drug test after the detention hearing was positive for amphetamines, opiates, and marijuana. Mother stated she was addicted to alcohol in 2009 and had completed three inpatient treatment programs, which she found beneficial. Mother stated she did not currently drink alcohol, but had a glass of wine the previous week.
Mother was arrested for battery in 2000. When she was 17 years old, she ran away from home with her 18-year-old boyfriend. The boyfriend abused drugs and was very abusive to mother as well, until she had him arrested. Mother claimed she did not engage in domestic violence with father, although she stated a few months earlier father had become so angry with her that he threw her bag and a hammer through a window at her job, while she was pregnant. Mother did not see any reason to report the incident to police. Mother was aware of father's history of domestic violence with other women.
Mother lived with her own mother (MGM) and an older sister who was considered "brain dead." Mother stated she would be helping MGM care for her sister. Mother had been married, but her husband died in 2013 from ALS. Mother stated she was a self-employed contractor.
D.W. was placed in confidential foster care. Mother visited with D.W. on December 28, 2015, and was appropriate. Father was not offered visits because he had not complied with CFS requests.
The jurisdiction and disposition hearing set for January 5, 2016, was continued because mother asked to retain private counsel. On January 28, 2016, mother's appointed counsel asked for mediation.
In an information for the court, filed February 24, 2016, CFS reported mother failed three on-demand drug tests. Although mother had enrolled in a substance abuse and parent education program on December 28, 2015, she ceased participating in services after January 12, 2016. Mother had not shown up for her scheduled weekly visits with D.W. for the previous four weeks.
Neither parent appeared for the mediation on February 24, 2016. Also on that date, the court held the contested jurisdiction and disposition hearing with counsel only, found the allegations in the petition true, and ordered D.W. removed. The court ordered reunification services for mother, but not for father, as he had not yet completed paternity testing and was only an alleged father.
Six-Month Review
In the six-month review report filed August 15, 2016, CFS recommended setting a hearing under section 366.26 to consider a permanent plan for D.W. The foster family with whom D.W. had been placed upon discharge from the hospital wanted to adopt him.
Mother underwent inpatient substance abuse treatment for three months from March 25 to June 22, 2016. During that time, she tested negative for drugs and visited weekly with D.W. Mother maintained contact with father during that time, brought him to a visit, and told the foster mother that they were a couple. After finishing the inpatient program, mother did not tell CFS where she was living. After being discharged from treatment, mother told the foster mother that she and father may be getting a place together and asked if the foster mother would bring D.W. to mother's home so father could participate in the visit without CFS knowing. The foster mother declined. Mother contacted the social worker twice, stating she was very sick and no longer living with MGM. The caller ID showed mother was calling from a motel. Mother had no further visits with D.W.
On September 14, 2016, the court declared father to be D.W.'s biological father and authorized one supervised visit a week for two hours.
At the six-month review hearing held on September 28, 2016, the court terminated mother's reunification services, reduced visits to once a month for one hour, and set a section 366.26 hearing for January 26, 2017.
Petition for Modification
At the section 366.26 hearing set for January 26, 2017, mother's counsel asked to set the matter contested and told the court mother would file a section 388 petition.
Mother filed the petition on February 23, 2017. Mother asked the court to modify its order of September 28, 2016, terminating her reunification services and reducing her visits. Mother asked the court to return D.W. to her on family maintenance, or in the alternative to grant additional reunification services and vacate the section 366.26 hearing. On February 24, the court summarily denied the petition on the grounds that the petition did not state a change of circumstances and that the proposed change was not in the child's best interest.
Section 366.26 Hearing
On February 28, 2017, the court relieved father's counsel and appointed new counsel. The court then continued the section 366.26 hearing to April 5.
At the contested hearing held on April 5, 2017, the court chose adoption as D.W.'s permanent plan and terminated parental rights to mother and father.
Both mother and father appealed.
DISCUSSION
Mother argues the court abused its discretion when it summarily denied her section 388 petition for modification because the offer of proof in the petition was more than sufficient to trigger the right to an evidentiary hearing.
Under section 388, a parent may petition a juvenile court to modify a previous order on the grounds of changed circumstances. (§ 388; In re Nolan W. (2009) 45 Cal.4th 1217, 1235.) The petitioner has the burden to show, by a preponderance of the evidence, a change of circumstances, and to show that the proposed modification is in the child's best interest. (In re B.D. (2008) 159 Cal.App.4th 1218, 1228; Cal. Rules of Court, rule 5.570(h)(1).)
"[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. [Citations.] 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." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) "We review the grant or denial of a petition for modification under section 388 for an abuse of discretion." (In re B.D., supra, 159 Cal.App.4th at p. 1228.)
In considering whether a prima facie showing has been made, the court may consider, among other things, "(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem 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)
Regarding changed circumstances, mother alleged in her petition: "I have progressed in all treatment areas. I am working with a therapist. I have completed inpatient treatment then transitioned to intensive outpatient sober living. I am attending domestic violence and will have completed it prior to the next court date. I attend 4-7 AA meetings a week. I have a sponsor. I have been clean and sober since my relapse on October 15, 2016." Mother attached to her petition documentation that she had completed six weeks of residential substance abuse treatment in October and November 2016, followed by three months of domestic violence services, outpatient substance abuse treatment, and residence at a sober living residence (not a facility), in addition to three weeks of a 10-week parenting course.
The problem for mother is that her changing circumstances are not the changed circumstances required by section 388. (In re Casey D. (1999) 70 Cal.App.4th 38, 49.) Mother had been struggling with addiction since age 18 in 1997, and she was only now able to show four months of sobriety, from October 2016 to February 2017. The longevity and seriousness of mother's addiction problems that caused D.W.'s dependency, in comparison with mother's short, but admirable, time in sobriety weigh heavily against a finding of changed circumstances. This is especially so given that mother had already relapsed once after inpatient treatment previously in this dependency, and had told the social worker that she had participated in three different inpatient treatment programs in prior years. Brief periods of sobriety during a longstanding substance abuse problem are not a change of circumstances. (In re Marcelo B. (2012) 209 Cal.App.4th 635, 642.) The court did not abuse its discretion when it concluded mother had not established a prima facie case of changed circumstances.
Given our conclusion that mother did not establish changed circumstances, we need not inquire further as to whether she made a prima facie case that granting the petition would be in D.W.'s best interest. However, we will note that under the test set forth in Kimberly F., supra, 56 Cal.App.4th at 531-532, regarding the relative strength of D.W.'s bonds with mother and with his caretakers, the court also did not abuse its discretion. D.W. was 14 months old when mother filed the petition for modification, had never lived with mother, had lived with the same foster family since his release from the hospital in December 2016, was doing well in the home, and the family wanted to adopt him.
The trial court did not abuse its discretion when it summarily denied mother's petition for modification.
DISPOSITION
The court's orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: CODRINGTON
J. FIELDS
J.