Opinion
D082193
10-17-2023
In re L.Y., a Person Coming Under the Juvenile Court Law. v. K.Y., Defendant and Appellant. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent,
Sarah Vaona, under appointment by the Court of Appeal, for Defendant and Appellant. Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy County Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. EJ4802, Mark T. Cumba, Judge. Affirmed.
Sarah Vaona, under appointment by the Court of Appeal, for Defendant and Appellant.
Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy County Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and Respondent.
CASTILLO, J.
K.Y. (Mother) appeals from the juvenile court's order denying her Welfare and Institutions Code section 388 petition. She contends that the juvenile court abused its discretion by denying her petition because she had shown the request was in the best interest of her daughter, L.Y. She also contends that the court erred in failing to grant a section 352 continuance. We reject these contentions and affirm the court's order.
All further statutory references are to the Welfare and Institutions Code, unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
A. Initial Referral and Investigation in Tuolumne County
In October 2021, L.Y. (aged six at the time) came to the attention of the Tuolumne County Department of Social Services (the Department). L.Y., who is legally blind, nonverbal, and autistic, was found in a local motel wandering the hallways wearing only a shirt and with feces running down her leg. Mother admitted she was "coming down" from methamphetamines, fell asleep and did not know that L.Y. had left the motel room. She reported a history of heroin use, and indicated she would soon be entering residential treatment. Mother asked responding officers to release L.Y. and her younger sibling to the care of L.Y.'s maternal uncle. Mother said she would allow the uncle to obtain guardianship of the children.
L.Y.'s sibling is not a subject of this appeal. L.Y.'s father is not a party to this appeal. He argued against Mother's section 388 petition at trial.
A few days later, a Tuolumne County social worker contacted the maternal uncle, who reported that Mother picked up the children the previous day and that he had no legal authority to stop her. He stated that Mother did not enter treatment but instead sought to hide so that child welfare services "would stop looking for her and . . . would just send a letter." After searching for the family for several days, the Tuolumne County social worker received a call from the Calaveras County Child Welfare Services after it learned of the two open referrals for Mother in Tuolumne County. The Calaveras social worker notified the Tuolumne social worker that L.Y. was found alone wandering the hallways of a hotel unsupervised, and they had found a backpack belonging to Mother containing hypodermic needles within reach of the children in the hotel room where Mother and her male companion were staying with the children. Mother was arrested for child endangerment and possession of drug paraphernalia and the children were taken into protective custody.
B. Tuolumne County's Petition
In October 2021, the Department filed a petition pursuant to section 300, subdivisions (b) and (g) alleging L.Y. was at a substantial risk of harm due to Mother's substance abuse and inability to protect L.Y. The whereabouts of L.Y.'s father were unknown at that time. The Tuolumne County Superior Court declared L.Y. a dependent in November 2021 and placed L.Y. with the maternal uncle. At the initial disposition hearing, Mother was notified of an available bed at a Salvation Army residential substance abuse treatment program and was directed to meet with the social worker.
Mother's visitation with L.Y. began in November 2021. Mother tested presumptively positive for opiates and amphetamines prior to her visit with L.Y. In December 2021, she tested presumptively positive for marijuana and methamphetamine.
Also in December 2021, the maternal uncle gave notice that he could no longer care for L.Y. due to her significant needs and insufficient local resources. The Department contacted more than 150 agencies across the state but was unable to find a home that could meet L.Y.'s needs. Therefore, L.Y. was placed in an emergency children's shelter.
In January 2022, Mother tested positive on two occasions, including for methamphetamine, opiates and marijuana.
At the contested disposition hearing in February 2022, the Tuolumne County Superior Court ordered L.Y. removed from parental custody and ordered reunification services for both parents. The parents' visitation remained supervised. With the court's approval, the Department expanded its search for foster placement options to San Diego County, which would support reunification efforts with the father.
C. Reunification Period
In February 2022, the Department notified all parties it intended to place L.Y. in the home of a nonrelative extended family member in San Diego County. A few days later, Mother filed a section 388 petition asking the court to return L.Y. to her custody. According to the petition, Mother was accepted into a residential treatment program, and was able to reside with L.Y. while in the program. The court summarily denied Mother's petition for an insufficient showing of changed circumstances because Mother postponed her intake appointment and had not entered treatment.
The juvenile court ordered L.Y. placed with the nonrelative extended family member in San Diego County in March 2022, over Mother's objection. The court also issued a new visitation order for two supervised virtual visits per week and one supervised in-person visit per month. The social worker and the dependency drug court made multiple efforts to engage Mother in residential treatment, but Mother resisted their efforts. Mother was terminated from dependency drug court in March 2022 for nonparticipation.
In August 2022, the Department filed a motion to transfer the matter to San Diego County, where L.Y. was placed and where the father resided.
As of August 2022, Mother had not begun any court-ordered services, had tested positive on numerous drug tests, and was a no-show for many other drug tests. Mother was given opportunities to enter residential treatment, but she failed to attend.
D. Transfer to San Diego
The case was transferred to San Diego juvenile court in September 2022. At the transfer-in hearing, the court was unable to reach Mother by telephone. The court gave the San Diego Health and Human Services Agency (the Agency) discretion to expand the father's visits to unsupervised or overnights but declined to expand Mother's visits because "she has basically made no progress." The court ordered the Agency to provide services to the parents consistent with their prior case plan.
The Agency's December 2022 status review report recommended continuing father's reunification services and terminating Mother's services. In the report, the Agency copied a report from the Tuolumne County social worker. According to the Tuolumne County social worker, during the six- to twelve-month review period, Mother had no housing and elected to stay with friends in Tuolumne and Calaveras Counties. Mother's family friend tried to take Mother to residential treatment, but she "blew her off" and "got high." Mother failed to participate in any of her case plan services and continued to test positive for amphetamine, methamphetamine, and opiates, and missed many drug testing appointments. Mother had not contacted or visited L.Y. in more than six months.
In December 2022, the court appointed Mother a San Diego attorney. L.Y.'s counsel asked the court to confirm the prior order for Mother's supervised in-person and virtual visits and noted that Mother had not had any recent contact with L.Y.
E. 12-Month Review Hearing
Mother failed to appear for the contested 12-month review hearing in February 2023. At that hearing, the court received the Agency's reports into evidence without objection. Mother's counsel offered no affirmative evidence.
The court noted Mother had not completed any services, she continued to use illegal substances, and there was no indication she had signed up for residential treatment. The court found, by clear and convincing evidence, reasonable services had been provided or offered to the parents. The court then terminated Mother's reunification services, noting there was no substantial probability of returning L.Y. to her custody by the 18-month date.
The father had been consistently visiting L.Y. and made significant progress towards alleviating the protective issues, although the court was concerned about his recent lack of contact with the social worker. The father noted he was working on his patience with L.Y. and that he relied on support from the caregiver so that he could "take a step back." He was open to engaging in additional reunification services but noted it might be better for L.Y. to remain with the caregiver. The court extended the father's reunification services to the 18-month review date.
E. 18-Month Review Hearing
Mother appeared in person for the initial 18-month review hearing in April 2023. The matter was continued to give counsel specially appearing for Mother time to review documents and for the Agency to effectuate proper notice. Counsel for the father noted he would not be contesting the recommendations:
The father's plan was to submit on the recommendations to terminate his services. He feels [L.Y.] is very well cared for in [sic] getting everything that she needs in her current placement so he is submitting.
He explained he was not prepared to care for L.Y., and he wanted her to be adopted by the caregiver who met all L.Y.'s needs and supported the father's visitation.
Mother did not appear for the continued 18-month review hearing in May 2023. Mother's counsel filed a section 388 petition, but the Agency did not have a chance to review it before the hearing.
At the continued 18-month review hearing, the court adopted the recommendations in the Agency's reports, terminated the father's reunification services, and set a section 366.26 hearing for September 2023. The court then set a special hearing for a prima facie finding regarding Mother's section 388 petition.
F. Mother's 388 Petition
Mother's section 388 petition asked the court to modify its prior February 2023 order terminating her reunification services. Mother's petition cited a recent no reasonable services finding in her Tuolumne County dependency case for L.Y.'s half-sibling as new evidence that would justify granting her additional services in L.Y.'s case. She argued the Agency had relied upon inaccurate information from the Tuolumne County social worker to support its recommendation to terminate Mother's services in L.Y.'s case.
Mother attached Tuolumne County court orders as support for her petition allegations. Mother's petition ultimately requested a new court finding that there was a failure to provide her with reasonable services in L.Y.'s case and an order for additional reunification services beyond the 18-month date.
Mother's petition alleged her requested findings and orders would be better for L.Y. because "[p]reference is placement with a healthy, protective parent. It would be in the child's best interest to reunify with, or have the opportunity to reunify with, a recovering healthy mother who can offer safety, permanency and well-being."
G. Prima Facie Hearing
At the May 2023 hearing, Mother's counsel asked the court to find prima facie with respect to the section 388 petition and to grant a continuance under section 352. The court asked Mother's counsel to clarify whether the Tuolumne County court's amended order "was with regard to another child and did not relate to [L.Y.], is that correct?" Mother's counsel responded, "Correct." Minor's counsel, father's counsel, and county counsel each argued against a prima facie finding on Mother's section 388 petition.
After hearing argument from all counsel, the court determined Mother had met her burden under a low, prima facie standard to show changed circumstances or new evidence. Nevertheless, Mother had failed to meet her burden to show the proposed order served the child's best interest, which was the second required element of a section 388 petition. Consequently, the court summarily denied Mother's petition and confirmed the 366.26 hearing for September 2023.
DISCUSSION
Mother now appeals from the juvenile court's summary denial of her section 388 petition and the court's finding that she failed to prove adoption was not in L.Y.'s best interest. She also appeals the denial of a section 352 continuance.
SECTION 388 PETITION
A. Legal Principles
"Section 388 provides an' "escape mechanism"' for parents facing termination of their parental rights by allowing the juvenile court to consider a legitimate change in the parent's circumstances after reunification services have been terminated. [Citation.] This procedural mechanism, viewed in the context of the dependency scheme as a whole, provides the parent due process while accommodating the child's right to stability and permanency. [Citation.] After reunification services have been terminated, it is presumed that continued out-of-home care is in the child's best interests. [Citation.] Section 388 allows a parent to rebut that presumption by demonstrating changed circumstances that would warrant modification of a prior court order." (In re Alayah J. (2017) 9 Cal.App.5th 469, 478 (Alayah J.)
"[A] section 388 petition seeking reinstatement of reunification services or return of the child 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.)
A modification petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) A proper exercise of discretion is" 'not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles . . . to be exercised in conformity with the spirit of the law[,] and in a manner to subserve and not to impede or defeat the ends of substantial justice.'" (In re Robert L. (1993) 21 Cal.App.4th 1057, 1066.) Exercises of discretion must be" 'grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.'" (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 15.)
B. L.Y.'s Best Interest
The concept of a child's best interest" 'is an elusive guideline that belies rigid definition.'" (In re Ethan N. (2004) 122 Cal.App.4th 55, 66, quoting Adoption of Michelle T. (1975) 44 Cal.App.3d 699, 704.) Its purpose is to maximize a child's ability to mature into a stable, well-adjusted adult. (Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1124.) Courts assessing petitions for modification filed after termination of reunification services should remember the shift in focus to a child's need for permanency and stability. (In re I.B. (2020) 53 Cal.App.5th 133, 159.)
In her petition, Mother asked the court to set aside its February 2023 order terminating her reunification services. Mother's petition claimed it was in L.Y.'s interest because of the preference for "placement with a healthy, protective parent. It would be in the child's best interest to reunify with, or have the opportunity to reunify with, a recovering healthy mother who can offer safety, permanency and well-being." The court noted that Mother's argument was that "the family should be together, the children should be with the parents." Mother's generic allegations were insufficient to establish that additional reunification services would be in L.Y.'s best interest. (See, e.g., Alayah J., supra, 9 Cal.App.5th at p. 478 [petition allegations "must not be conclusory"]; In re Anthony W. (2001) 87 Cal.App.4th 246, 251 [affirming denial of petition where it "does not demonstrate how a change in the order would be in the best interest of these children"].)
Moreover, the juvenile court appropriately considered the record of L.Y.'s special needs as she is legally blind, nonverbal, and autistic, and the neglect she experienced, as well as Mother's drug addiction and her failure to seek treatment. In determining whether to grant the petition, the court could consider "the entire factual and procedural history of the case." (In re Mickel O. (2011) 197 Cal.App.4th 586, 616.) Factors that the court could consider include "the seriousness of the reason leading to the child's removal, the reason the problem was not resolved, the passage of time since the child's removal, the relative strength of the bonds with the child, the nature of the change of circumstance, and the reason the change was not made sooner." (Ibid.) Here, the court "considered . . . the totality of the circumstances" in assessing L.Y.'s best interest.
The record supports the court's finding that Mother did not have much contact with L.Y., especially "given her needs." Mother visited L.Y. sporadically when they both resided in Tuolumne County and failed to contact her for more than six months in 2022. After L.Y. moved to San Diego, the Department offered to fly Mother and a social worker to San Diego to visit L.Y. if Mother could demonstrate some sobriety and stability. The Department noted that Mother's "current use and occasional bursts of anger were a safety concern for traveling to San Diego." The record does not show that Mother ever achieved a period of sobriety.
When Mother finally had a virtual visit in December 2022, L.Y. made loud noises and covered her face in response to Mother's greeting. According to the social worker, L.Y. "appeared distressed" and turned her back away from the camera. The visit ended in less than 10 minutes. Mother had no contact with the Agency from early January 2023 until April 2023. As the social worker noted, visitation between parent and child "is one of the top predictors of reunification."
There is also no dispute that Mother received six months of reasonable reunification services before her case was transferred to San Diego in September 2022. Mother was offered a "Dependency Drug Court (DDC) Family Reunification Case Plan," but continued to use methamphetamine, opiates, and other drugs. She had access to 12-step meetings but decided not to attend. Mother also missed several intake appointments for counseling services. She was referred to a parenting program, but she did not engage in that service either.
During a hearing in February 2022, the Tuolumne County drug court scheduled an intake appointment for Mother at a residential treatment facility. Mother became frustrated, was visibly upset, and left the courtroom before the hearing ended. In June 2022, Mother entered residential treatment for one night until staff discovered she possessed methamphetamine. The program manager opined that Mother would not have shown up to the facility with the drugs if she wanted to be sober.
At the contested 12-month review hearing in February 2023, the court found the "extent of progress made by [Mother] toward alleviating or mitigating the causes necessitating placement has been none." Mother repeatedly agreed to participate in residential substance abuse treatment and then failed to do so. She had been expected to begin at least four different residential treatment programs and was referred to additional treatment options. Based on Mother's history during the reunification period, further services were unlikely to be successful. (See Michael G. v. Superior Court, supra, 14 Cal.5th 609, 636 ["Where the available evidence reliably demonstrates that further reunification services would be unlikely to succeed, due process does not require that a court delay permanency for the child."]; Earl L. v. Superior Court (2011) 199 Cal.App.4th 1490, 1505 ["It defies common sense to continue reunification efforts for a parent who has made minimal efforts throughout a case."].)
The court did not abuse its discretion when it focused on the importance of providing timely permanency for L.Y. Indeed, on the eve of the section 366.26 hearing, L.Y.'s "interest in stability was the court's foremost concern, outweighing any interest mother may have in reunification." (In re Anthony W. (2001) 87 Cal.App.4th 246, 251-252.) Here, the court's conclusion that L.Y.'s best interest would be served by proceeding to a permanent plan was supported by L.Y.'s social worker, L.Y.'s counsel, and L.Y.'s father.
L.Y.'s caregiver met all L.Y.'s medical and developmental needs and was committed to caring for L.Y. permanently through guardianship or adoption. The social worker described the caregiver as "a strong advocate for [L.Y.'s] needs at school and with services." The father and the caregiver each noticed that L.Y. thrived in the caregiver's home as her interactions and communications improved and her tantrums decreased. Finding a dedicated caregiver was not easy as a prior relative caregiver and more than 150 placement agencies were unable or unavailable to meet L.Y.'s special needs. The court acted reasonably in ensuring L.Y.'s stable placement became permanent as soon as possible.
Additionally, although Mother complains that the juvenile court relied on inaccurate information, she cites to the Tuolumne County court's amended order while acknowledging that it concerned "another child" and did not relate to L.Y. She also cites the Agency's May 2023 addendum report as an example of where the Agency relied on the Tuolumne County social worker's false and misleading statements. But that report summarized the San Diego social worker's communications with Mother and her attempts to assist Mother with services before they were terminated in February 2023. It does not include any statements from the Tuolumne County social worker.
Finally, the California Supreme Court recently held that "[a] parent who has not received reasonable services may seek an extension of services beyond 18 months, but such extensions are not automatic." (Michael G. v. Superior Court (2023) 14 Cal.5th 609, 620.) The Supreme Court further explained that, in evaluating whether an extension is warranted, the court must find that further reunification efforts and the resulting delay to the child's permanent plan will serve the child's best interest. (Id. at pp. 628629, 634-635, 637.) Consistent with Michael G., the juvenile court here considered L.Y.'s best interest and gave substantial weight to L.Y.'s need for "prompt resolution" of her custody status and a "stable environment[.]" (Id. at pp. 631-632.)
For all these reasons, Mother failed to show the court abused its discretion by summarily denying her section 388 petition.
SECTION 352 CONTINUANCE
Mother also argues that the court erred by failing to grant a section 352 continuance. Mother's reliance on In re Michael R. (1992) 5 Cal.App.4th 687 is misplaced. There, the court believed it had "no authority" to consider the mother's section 352 motion to continue the section 366.26 hearing. (Id. at p. 692.) On appeal, we held that the juvenile court erred, explaining that "the Legislature enacted section 352 so a party could continue the section 366.26 hearing to acquire the facts necessary to be able to make an adequate showing to obtain a section 388 hearing." (Id. at pp. 692-694.)
Here, there was no such motion as Mother knew about the amended order in Tuolumne County before she filed her section 388 petition. Thus, there was no basis for delay because Mother was not seeking to acquire any facts and, in any event, her section 388 petition was unsuccessful. Mother's argument that the juvenile court should have used section 352 to" 'extend family reunification services'" is similarly misplaced because Mother's reunification services had already been terminated and there was no upcoming statutory review hearing.
DISPOSITION
The order denying the section 388 petition is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., BUCHANAN, J.