Opinion
E081665
04-16-2024
In re A.O. et al., Persons Coming Under the Juvenile Court Law. v. K.O., Defendant and Appellant. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Jill Smith, under appointment by the Court of Appeal, for Defendant and Appellant, K.O. Tom Bunton, County Counsel, and David Guardado, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super.Ct.Nos. J288711, J288712 and J288713, Lynn M. Poncin, Judge.
Jill Smith, under appointment by the Court of Appeal, for Defendant and Appellant, K.O.
Tom Bunton, County Counsel, and David Guardado, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
FIELDS, J.
I. INTRODUCTION
K.O. (Mother) is the mother of D.O., G.R., and A.O. In April 2021, San Bernardino County Children and Family Services (CFS) filed petitions on behalf of all three children pursuant to Welfare and Institutions Code section 300 et seq., alleging Mother's inability to supervise, protect, or provide for her children as the result of her history of domestic violence, history of mental illness, and unresolved substance abuse.
Undesignated statutory references are to the Welfare and Institutions Code.
In June 2022, the juvenile court held a 12-month review hearing, terminated Mother's reunification services, and set the matter for a selection and implementation hearing pursuant to section 366.26. The trial court held the selection and implementation hearing in October 2022, but it ultimately continued the hearing to permit CFS to address unresolved issues related to the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.).
In June 2023, Mother filed petitions pursuant to section 388 requesting the court reinstate reunification services and increase visitation with respect to all three children. The juvenile court summarily denied Mother's petitions without conducting an evidentiary hearing, and Mother appeals. We find no abuse of discretion and affirm the orders.
II. FACTS AND PROCEDURAL HISTORY
In March 2021, CFS received a referral alleging that Mother had given birth prematurely to A.O. and that both Mother and A.O. had tested positive for amphetamines. After conducting an initial investigation, CFS detained Mother's three children, D.O., G.R., and A.O., and filed petitions pursuant to section 300 et seq. on their behalf. Specifically, CFS alleged that Mother was unable to supervise, protect, or provide for her children as the result of her history of domestic violence, history of mental illness, and unresolved substance abuse.
According to the detention report, a social worker confirmed with the hospital that A.O. had tested positive for amphetamines and methamphetamines at birth and required medical care in the neonatal intensive care unit. Mother was interviewed and admitted the following: (1) she was currently using illicit drugs; (2) she started using illicit drugs beginning at 12 years of age; and (3) she had a complicated history of addiction involving multiple periods of sobriety followed by relapses. Mother stated that her longest period of sobriety was three years, but she relapsed after the birth of her second child. Additionally, Mother admitted that D.O. had previously been removed from her care for a period of time as the result of domestic violence. Finally, Mother acknowledged that she required medication to address multiple diagnosed mental health issues, but she was not concerned with simultaneously using medication and illicit drugs.
Mother reported that she suffered from anxiety, post-partum depression, post-traumatic stress disorder, and depression.
In August 2021, the juvenile court held a jurisdictional and dispositional hearing; sustained allegations that Mother had a history of domestic violence, unresolved substance abuse issues, and mental health issues requiring treatment; and ordered the children formally removed from Mother's custody.
CFS filed a six-month review report in February 2022. At the time, Mother did not have stable housing or employment. Mother had been ordered to participate in individual counseling, parenting education, a domestic violence program, an outpatient substance abuse program, and periodic alcohol/drug testing. While Mother had made significant progress in individual counseling, completing seven out of eight sessions, she missed her last session and had yet to complete it. Additionally, Mother completed only three of 12 assigned domestic violence classes; failed to undergo substance abuse treatment; tested positive for illicit substances on four different occasions during random drug tests; and failed to submit to drug testing on 14 other occasions. Mother did not appear at the six-month review hearing, and the juvenile court ordered that the children continue as dependent children of the court.
CFS filed a 12-month review report in May 2022 and recommended termination of Mother's reunification services. Mother remained without stable housing or employment and confirmed she had not participated in any additional counseling or domestic violence classes since the six-month review report. Mother also confirmed that she had not started her outpatient substance abuse treatment program. Instead, Mother stated she had been attending narcotics anonymous meetings and expressed the belief that these meetings should be considered as a suitable substitute for her court-ordered treatment. CFS reported that Mother failed to appear for random substance abuse testing on an additional four occasions since the last report. Mother did not appear at the 12-month review hearing and the juvenile court ordered that reunification services with Mother be terminated.
In October 2022, the juvenile court held a hearing pursuant to section 366.26.
CFS recommended that the juvenile court terminate parental rights and select a permanent plan of adoption for G.R. and A.O., and further recommended that the juvenile court select an alternative permanent plan for D.O. Mother appeared at the section 366.26 hearing to contest CFS's recommendations, but the juvenile court ultimately continued the hearing to permit CFS to address unresolved ICWA issues.
D.O. was already a teenager at the time and objected to termination of parental rights. Eventually, the juvenile court determined that termination of parental rights as to D.O. would be detrimental and selected a "planned permanent living arrangement."
In April 2023, CFS filed an additional information report, notifying the juvenile court that Mother reported she had relocated out of state, given birth to another child, and was now living with family out of state.
On June 2, 2023, Mother filed petitions pursuant to section 388, requesting that the juvenile court reinstate reunification services and increase the frequency of visitation with each of her children. In support of her petition, Mother attested that she had begun individual counseling, parenting education classes, a domestic violence program, and a substance abuse treatment program. She attached a report indicating that she had tested clean for illicit substances on one occasion in April 2023. The juvenile court summarily denied the petitions without an evidentiary hearing, finding that the petitions failed to state new evidence or a change of circumstances, failed to explain why the proposed modification would be in the best interest of the children, and demonstrated only "changing circumstances" because Mother "has yet to complete services or provide evidence of sobriety for a lengthy period of time." Mother appeals from the summary denial of her section 388 petitions.
III. DISCUSSION
The only issue raised in mother's appeal is that the juvenile court abused its discretion in refusing to grant her an evidentiary hearing on her section 388 petitions prior to denying the petitions. As we explain post, we find no abuse of discretion in the record before us and affirm the orders.
A. General Legal Principles and Standard of Review
"Section 388 allows a parent to petition to change, modify, or set aside any previous juvenile court order. [Citation.] 'The petitioner has the burden of showing by a preponderance of the evidence (1) that there is new evidence or a change of circumstances and (2) that the proposed modification would be in the best interests of the child.'" (In re J.M. (2020) 50 Cal.App.5th 833, 845; § 388, subd. (a).) "The juvenile court has discretion whether to provide a hearing on a petition alleging changed circumstances." (In re Aljamie D. (2000) 84 Cal.App.4th 424, 431.) However, a"' "parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." '" (Id. at p. 432.) "If the liberally construed allegations of the petition do not show changed circumstances such that the child's best interests will be promoted by the proposed change of order, the dependency court need not order a hearing." (In re Anthony W. (2001) 87 Cal.App.4th 246, 250; Cal. Rules of Court, rule 5.570(d)(1).)
"We normally review the grant or denial of a section 388 petition for an abuse of discretion." (In re Alayah J. (2017) 9 Cal.App.5th 469, 478.) This includes the juvenile court's summary denial of a section 388 petition without a hearing. (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079.)
B. Application
In this case, Mother's petitions requested the juvenile court reinstate reunification services for an additional six months and increase her visitation to twice a week. The juvenile court summarily denied the petitions after concluding that the petitions failed to state a prima facie case of changed circumstances or that the requested modifications would be in the children's best interest. In this context, the juvenile court does not abuse its discretion "if even a liberal interpretation of the proffered evidence of changed circumstances might not justify modifying the order terminating reunification." (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1414.) As we explain, even accepting Mother's proffered evidence as true, this evidence did not show changed circumstances that might justify modification of the juvenile court's prior orders.
With respect to Mother's request to reinstate reunification services, the petitions alleged that Mother had reengaged in services that were previously required as part of her case plan by resuming individual counseling and enrolling in parenting education classes, a domestic violence program, and a substance abuse treatment program. However, the record in this case shows that Mother had previously enrolled in and participated, to some degree, in many of these services prior to termination of reunification services but had failed to complete any of them. It was not Mother's unwillingness to participate in services but her inability to commit to and successfully complete services that resulted in the orders terminating reunification services. Thus, merely showing that Mother was again willing to participate in counseling, classes, and treatment did not show a material change of the circumstances that already existed at the time the juvenile court entered the orders which Mother now seeks to modify.
On appeal, mother also argues that the subsequent birth of a new child is a fact supporting changed circumstances. However, the record shows that mother did not present this fact as a basis for finding changed circumstances in support of her section 388 petition. "[T]he mandate requiring courts to give a liberal construction to a section 388 petition does not authorize a petitioner to avoid describing the purported changed circumstances or new evidence" (In re Edward H. (1996) 43 Cal.App.4th 584, 593); and, "[i]In dependency litigation, nonjurisdictional issues must be the subject of objection or appropriate motions in the juvenile court; otherwise those arguments have been waived and may not be raised for the first time on appeal" (In re Christopher B. (1996) 43 Cal.App.4th 551, 558). Accordingly, we decline to consider a fact that was never presented to the juvenile court as a basis for finding changed circumstances in support of the petitions.
On appeal, Mother concedes that she has yet to complete any services previously required as part of her case plan, but she argues that she need only demonstrate the potential to complete such services to establish a change of circumstances warranting modification of the prior order. However, as multiple Courts of Appeal have observed, "a section 388 petition seeking reinstatement of reunification services . . . will necessarily involve a parent who has made mistakes sufficient to support termination of services at some point in the past. The question must be whether the changes the parent made since then are substantial enough to overshadow that prior determination, such that reunification is now in the child's best interests." (In re J.M. (2020) 50 Cal.App.5th 833, 848; In re Ernesto R. (2014) 230 Cal.App.4th 219, 223 ["To support a section 388 petition, the change in circumstances must be substantial."].) Thus, merely establishing that the parent has recently reengaged in services or recently experienced a brief period of sobriety is not sufficient to show the type of changed circumstances required to support a modification order under section 388. (In re Ernesto R., at p. 223 [Where a parent "has a history of drug relapses, is in the early stages of recovery, and is still addressing a chronic substance abuse problem," the parent's "recent sobriety reflects 'changing,' not changed circumstances" and "is not a substantial change of circumstances."]; In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081 [Parents did not demonstrate changed circumstances where "both have extensive histories of drug use," and "[t]heir recent efforts at rehabilitation were only three months old."].)
While Mother's recent efforts are commendable and may eventually progress to a point at which Mother can show a material change of circumstances warranting granting a hearing on another 388 petition that might be filed in the future, merely showing that Mother was again willing to engage in services, which she had already attempted to complete in the past, does not represent the type of material change of circumstances that would justify revisiting any of the juvenile court's prior orders. Given this conclusion, we need not discuss in detail whether Mother's petition also showed a prima facie case that her requested modification would be in the children's best interest. (In re G.B. (2014) 227 Cal.App.4th 1147, 1157 ["[T]he parent must sufficiently allege both a change in circumstances or new evidence and the promotion of the child's best interests," and "[a] prima facie case is made if the allegations demonstrate that these two elements are supported by probable cause."]; In re Justice P. (2004) 123 Cal.App.4th 181, 191 ["Section 388 contemplates that a petitioner make a prima facie showing of both elements to trigger an evidentiary hearing on the petition."]; Cal. Rules of Court, rule 5.570(d)(1) [A juvenile court may deny a petition under section 388, subdivision (a) ex parte if the petition "fails to state a change of circumstances or new evidence that may require a change of order . . . or fails to show that the requested modification would promote the best interest of the child ...."].)
We observe that Mother's petition alleged that a modification was in the children's best interest because "Mother is bonded with the minor and it is in the child's best interest to reunify." Mother referred to her own declaration repeating this same conclusory statement as evidentiary support for this allegation. However, unsubstantiated conclusory allegations are generally not considered sufficient to constitute a prima facie showing on a section 388 petition. (In re Anthony W., supra, 87 Cal.App.4th at p. 250 ["The petition may not be conclusory."]; In re Edward H. (1996) 43 Cal.App.4th 584, 593 ["If a petitioner could get by with general, conclusory allegations, there would be no need for an initial determination by the juvenile court about whether an evidentiary hearing was warranted," and "the decision to grant a hearing on a section 388 petition would be nothing more than a pointless formality."].)
Where, as here, the evidence proffered in support of a section 388 petition would not support the modification of a prior order even if accepted as true, such evidence does not show a prima facie case for relief, and the juvenile court does not abuse its discretion by denying the petition without proceeding to a full evidentiary hearing. Thus, Mother has not met her burden on appeal to show an abuse of discretion warranting reversal of the juvenile court's orders.
IV. DISPOSITION
The orders are affirmed.
We concur: MILLER Acting P. J., MENETREZ J.