Opinion
D075953
10-08-2019
In re M.S., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. T.S., Defendant and Appellant.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Tahra Broderson, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J519542) APPEAL from orders of the Superior Court of San Diego County, Edlene C. McKenzie, Judge. Affirmed. Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Tahra Broderson, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
T.S. (Mother) appeals two juvenile court orders restraining her ability to visit telephonically and in-person with her teenage daughter and the subject of this dependency proceeding, M.S. The first order denied a petition filed by Mother under Welfare and Institutions Code section 388 seeking to set aside visitation restrictions imposed after she absconded for much of the reunification period, missed several visitations with M.S., and had a series of poor visitations with M.S. The court entered the second order at a section 366.26 hearing after adopting a permanent plan of legal guardianship for M.S. and designating the paternal grandmother as M.S.'s legal guardian. (§ 366.26, subd. (c)(4)(C).)
All further statutory references are to the Welfare and Institutions Code, unless otherwise noted.
We conclude the juvenile court did not abuse its discretion in entering the challenged visitation orders. Therefore, we affirm.
II
BACKGROUND
A
On June 7, 2017, the Agency received a request to commence dependency proceedings as to 12-year-old M.S. M.S.'s father was deceased and Mother was homeless, suffered from a history of drug and alcohol abuse, and had a record of drug- related arrests. The Agency found there were "complicating factors within the family," but concluded M.S. was cared for by the paternal grandmother with whom she resided and thus declined to initiate a dependency case.
The juvenile court received an application requesting that it review the Agency's decision. It granted the application and ordered the Agency to commence a dependency action. Pursuant to the court's order, the Agency filed a petition alleging M.S. was a person described in section 300, subdivision (g), because she "[1] ha[d] been left without any provision for support ... or [2] a relative or other adult custodian with whom ... [she] reside[d] or ha[d] been left [was] unwilling or unable to provide care or support for ... [her], the whereabouts of the parent [were] unknown, and reasonable efforts to locate the parent ha[d] been unsuccessful."
At the detention hearing, the Agency recommended dismissal of the petition on the basis that M.S. was supported, well-nourished, and healthy in the care of the paternal grandmother. Notwithstanding the Agency's recommendation, the juvenile court found a prima facie showing had been made that M.S. was a person described in section 300, subdivision (g), and detained M.S. in the home of the paternal grandmother. The court ordered supervised visitation for Mother facilitated by an assigned social worker.
B
Following the detention hearing, Mother contacted M.S. on multiple occasions without prearranging the contacts with the social worker as required. During one unsupervised call, Mother told M.S. she was unwanted and blamed her for the dependency case. During another unsupervised call, Mother said she planned to "steal" M.S. if she was unable to regain custody. Further, in unsupervised text messages, Mother called M.S. "disrespectful," told her she was a "liar," and claimed she would "slap that [sic] fuck outta" her. During the same time period, the paternal grandmother provided M.S. adequate food, clothing, shelter, medical care, and supervision, stabilized M.S. in school, and surrounded M.S. with positive role models.
Mother was unable to attend the jurisdiction and disposition hearing because she was arrested for being intoxicated in a public place (Pen. Code, § 647, subd. (f)), resisting a peace officer (id., § 148, subd. (a)(1)), and possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)). Therefore, the juvenile court continued the matter to a later date. The Agency then filed an amended petition alleging M.S. was a person described in section 300, subdivision (b), on grounds that she had suffered or was at substantial risk of suffering serious physical harm or illness. The court dismissed the count under section 300, subdivision (g), and found a prima facie showing had been made as to the new count under section 300, subdivision (b).
At the contested disposition hearing, the juvenile court declared M.S. a dependent of the court, granted the paternal grandmother de facto parent status, and ordered reunification services. It granted Mother supervised visitation with M.S. and permitted the Agency to allow unsupervised visitation with prior notice to M.S.'s counsel.
C
Approximately one month later, Mother moved from California to another state without notifying the Agency or providing contact information to the paternal grandmother. Mother did not participate in reunification services until approximately five months after the hearing, at which point she enrolled in a parenting class and a substance abuse program. Mother had minimal and inconsistent contact with M.S. during this period. She had no in-person contact with M.S. and wrote to her on only one occasion. A supervised, biweekly telephonic visitation schedule was ultimately established; however, Mother regularly missed or was late to the scheduled calls.
Based on Mother's minimal progress towards reunification and her inconsistent visitation, M.S. filed a request for termination of reunification services, which the Agency did not oppose. Following a contested modification hearing, the court found Mother's compliance with her reunification case plan was minimal, granted M.S.'s request to terminate services, and scheduled a hearing under section 366.26.
Mother travelled back to California shortly after the contested modification hearing. M.S. invited Mother to her school promotion ceremony, but Mother did not attend. During a supervised visit after the ceremony, Mother made disparaging comments to M.S. in which she called her fat and told her she needed to lose weight. Shortly after, M.S. was admitted to the hospital due to an apparent suicide attempt. She suffered from depression and reported feeling upset by Mother's inappropriate comments towards her and the fact that Mother "did not fight for her." M.S.'s therapist advised it would be preferable for M.S. not to have contact with Mother due to the nature of their past interactions. M.S. reported she did not want to speak with or see Mother.
In July 2018, M.S. filed a petition under section 388 requesting a suspension of contact between Mother and M.S. The Agency supported the request. The juvenile court found M.S. had made a prima facie showing of changed circumstances, scheduled a contested special hearing, and suspended in-person and telephonic contact between Mother and M.S. The court permitted Mother to send letters to M.S., but only if M.S.'s therapist reviewed them prior to delivery and found them appropriate. Notwithstanding the court's order suspending telephonic visitation, Mother attempted to call M.S. directly on two separate occasions from multiple phone numbers. M.S. did not accept the calls.
At the contested special hearing, the court granted M.S.'s petition and suspended all contact between Mother and M.S., except for letters approved by M.S.'s therapist. The court granted the Agency discretion to reinstate additional forms of contact between Mother and M.S., subject to the concurrence of M.S.'s counsel.
D
In April 2019, Mother filed a petition under section 388 requesting that M.S. be placed with her or, in the alternative, in-person or telephonic visitation be permitted. Mother argued there were changed circumstances warranting modification of the court's prior placement and visitation orders because she had completed a parenting course and a six-week substance abuse program. Mother attached two certificates confirming her completion of the parenting course and substance abuse program, one set of drug test results from February 2019 showing a positive result for PCP, and two later sets of drug test results from February and March 2019 showing negative results. Further, Mother alleged M.S. had posted "provocative" pictures on social media and argued this demonstrated M.S. was "not being properly supervised" by the paternal grandmother.
M.S. and the Agency opposed Mother's request. They argued M.S. did not want visitation with Mother and wanted her paternal grandmother to be her permanent legal guardian. They contended Mother's completion of a short-term substance abuse program did not establish long-term sobriety. Further, they claimed Mother's completion of a parenting class did not rectify the strained relationship between Mother and M.S.
The court denied Mother's request for modification of its prior placement and visitation orders, finding she had not made a prima facie showing entitling her to relief. The court commended Mother for participating in a parenting class and drug treatment program, but found Mother had not made a prima facie showing of changed circumstances because she had a "long history of substance abuse" and only "recently" completed the programs. It further opined Mother had not made a prima facie showing the requested modification would be in the best interests of M.S. The court cited the impact Mother's lengthy substance abuse history had on M.S., Mother's unannounced move to another state, M.S.'s stated desire not to have contact with Mother, and the inconsistency and poor quality of the visitations between Mother and M.S.
At the section 366.26 hearing, the juvenile court adopted a permanent plan of legal guardianship and designated the paternal grandmother as legal guardian. The court did not terminate Mother's parental rights, but ordered Mother she could only communicate with M.S.: (1) through letters; or (2) in-person at the discretion of the legal guardian.
III
DISCUSSION
A
Mother challenges the juvenile court's order denying her section 388 petition to set aside the restrictions on her visitations with M.S. She contends she made a prima facie showing of changed circumstances because she completed a parenting course and a substance abuse program, passed random drug testing mandated by the substance abuse program, and obtained stable housing. She also claims she made a prima facie showing the modification to the juvenile court's visitation order would be in M.S.'s best interests because the parental grandmother had provided too "permissive" an environment for M.S. and Mother had obtained stable housing. Therefore, she argues the court should have scheduled an evidentiary hearing instead of denying her petition ex parte.
Mother does not challenge the juvenile court's denial of her request to modify or set aside existing placement orders.
Under section 388, any person having an interest in a dependent of the juvenile court may petition to change, modify, or set aside a prior order of the court. (§ 388, subd. (a)(1).) The petitioner has the burden of showing: (1) there has been a change of circumstance or new evidence; and (2) the proposed modification is in the child's best interests. (§ 388, subds. (a)(1) & (d); see In re Z.F. (2016) 248 Cal.App.4th 68, 72-73.) " '[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 Daniel C. (2006) 141 Cal.App.4th 1438, 1445.) We review an order on a section 388 petition under an abuse of discretion standard. (Ibid.)
On the record before us, we conclude the juvenile court did not abuse its discretion in finding Mother failed to make a prima facie showing of changed circumstances. In reaching this conclusion, we "consider the entire factual and procedural history of the case." (In re Jackson W. (2010) 184 Cal.App.4th 247, 258.) Therefore, we evaluate the claim of changed circumstances in light of Mother's five-month disappearance during reunification, her uneven participation in the visitation options made available to her throughout the dependency proceeding, the troubling criticisms and blame she levied on M.S., and her lengthy history of substance abuse and drug-related arrests.
Mother's section 388 petition for modification, even liberally construed in favor of the requested relief, does not plead changed circumstances in view of the history just discussed. Mother generally alleged in her petition that she completed a parenting course, but provided no information about the applicability of the lessons learned in the course to her individual circumstances. Further, she did not allege facts pertaining to the quantity and quality of her visitations with M.S. Given the concerning case history discussed ante, the court did not abuse its discretion in concluding the generic averment that Mother completed a single parenting class was insufficient to establish a prima facie case of changed circumstances. (In re A.S. (2009) 180 Cal.App.4th 351, 358 [allegation that father completed parenting class insufficient to warrant evidentiary hearing].)
To the extent Mother's substance abuse gave rise to the dependency proceeding, Mother's allegation that she completed a six-week, short-term substance abuse treatment also did not make a prima facie showing of changed circumstances. "To support a section 388 petition, the change in circumstances must be substantial." (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.) Here, the record reflects changing circumstances, but not substantial changed circumstances. For instance, Mother attached results from drug testing performed just two months prior to the section 388 petition, but these results included a positive test result for PCP. Further, while her recent completion of a treatment program shows she is in the early stages of recovery for a chronic substance abuse problem, it does not demonstrate a sustained period of recovery. (See, e.g., Ernesto R., at p. 223; In re Marcelo B. (2012) 209 Cal.App.4th 635, 642.)
Even if Mother had pleaded changed circumstances, the juvenile court did not abuse its discretion in finding Mother failed to make a prima facie showing that modification of the existing visitation order would be in the best interests of M.S. The petition alleged Mother had a stable home and the paternal grandmother had provided a "permissive" living environment for M.S., which enabled her to engage in certain "behavioral issues" such as posting "provocative" photographs on social media. These allegations, while potentially relevant to the placement of M.S., are not especially relevant to whether modification of existing visitation restrictions was warranted.
In any event, the juvenile court reasonably could have concluded the best interests of M.S. would not be served by the removal of visitation restrictions. Mother had little, if any, bonded relationship with M.S., who had resided with the paternal grandmother for two and a half years. Mother's history of visitations with M.S. consisted of months without contact, missed telephone calls, infrequent letter writing, and unaccepted invitations to important events such as M.S.'s school promotion graduation. Further, the quality of the visitations that did occur were, by all accounts, poor. The inconsistent nature and poor quality of the visitations took its toll on M.S., who herself initiated the suspension of visitations and stated she did not want to be "forced" into further visitations with Mother. After one particularly troublesome visitation in which Mother belittled M.S.'s physical appearance, M.S. was hospitalized due to an apparent suicide attempt and reported feeling upset by Mother's inappropriate comments towards her.
Considering this history and the sparse allegations in the section 388 petition, we conclude the juvenile court was well within its discretion in denying the petition ex parte.
B
Mother also challenges the order entered at the section 366.26 hearing imposing visitation restrictions on her. In the contested order, the court ruled Mother could communicate with M.S. only via letter and during supervised in-person visitation approved by the legal guardian. Mother claims the court erred in entering these restrictions because they will make it difficult for her to form a healthy parent-child relationship with M.S. and less restrictive forms of visitation could have been ordered.
When a juvenile court orders a permanent plan of legal guardianship or long-term foster care placement for a dependent child, it must "make an order for visitation with the parents or guardians unless the court finds by a preponderance of the evidence that the visitation would be detrimental to the physical or emotional well-being of the child." (§ 366.26, subd. (c)(4)(C).) Although parent-child visitation should generally be as frequent as possible during the reunification period to maintain ties between the parent and child (§ 362.1), the court "must turn its focus to the child's best interests" after reunification has been terminated. (In re S.H. (2011) 197 Cal.App.4th 1542, 1559.) Thus, the court may consider the minor's interest in deepening his or her attachments with the legal guardian, unhindered by disruption from the parent. (Ibid.) We review a visitation order attendant to a permanent legal guardianship order under an abuse of discretion standard. (In re Rebecca S. (2010) 181 Cal.App.4th 1310, 1314.)
Citing case law addressing the propriety of visitation orders under section 362.4, Mother contends we should apply a hybrid standard of review incorporating elements of abuse of discretion and substantial evidence review. We decline to do so. As noted ante, visitation orders entered in connection with the establishment of permanent legal guardianships are governed by section 366.26, subdivision (c)(4)(C). --------
For many of the same reasons discussed ante, we conclude the juvenile court did not abuse its discretion in imposing the visitation restrictions at issue. The court held the section 366.26 hearing and entered the challenged visitation order a mere two weeks after the contested modification hearing at which it denied Mother's section 388 petition. The parties did not notify the court of any changed circumstances after the contested modification hearing necessitating expanded visitation rights for Mother, nor are any such circumstances apparent from the appellate record. Thus, the same factors supporting the court's denial of Mother's section 388 petition support the visitation order entered at the section 366.26 hearing.
IV
DISPOSITION
The orders are affirmed.
McCONNELL, P. J. WE CONCUR: BENKE, J. GUERRERO, J.