Opinion
D076173
01-27-2020
In re T. R., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. V. R., Defendant and Appellant.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Patrice Plattner-Grainger, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SJ13124) APPEAL from an order of the Superior Court of San Diego County, Michael J. Popkins, Judge. Affirmed. Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.
V.R. appeals a juvenile court order terminating the court's jurisdiction over her minor son T.R., removing T.R. from her care, and placing him in the custody of his father. V.R.'s sole contention on appeal is that insufficient evidence supports the court's finding that removal was necessary to protect T.R. We reject this argument and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
On March 26, 2015, the Agency filed a petition under Welfare and Institutions Code section 300, subdivision (b)(1) on behalf of newborn T.R. alleging that he suffered, or that there was a substantial risk that he would suffer, serious physical harm or illness, due to the inability of V.R. to provide care because of substance abuse. The petition alleged that V.R. and T.R. both tested positive for methamphetamine at the time of the minor's birth, that V.R. admitted using methamphetamine during the pregnancy, and that V.R. and the minor's father J.R had a history of drug abuse. V.R.'s oldest child, who was five at the time of T.R.'s birth, resided with his biological father. At the time the petition was filed, J.R. was in custody for a probation violation and drug possession. V.R. and J.R. also share an older daughter, L.R., who was in the care of a paternal relative in Tijuana, Mexico when the petition was filed.
Subsequent statutory references are to the Welfare and Institutions Code.
At the detention hearing, the juvenile court detained T.R. and placed him in the care of paternal cousins. At the jurisdiction hearing, the court sustained the petition, finding the allegations to be true by clear and convincing evidence. At the subsequent disposition hearing, the court declared T.R. a dependent, removed him from parental custody, and ordered him placed in relative care. The court also ordered reunification services and supervised visitation for both parents.
At the time of the first review hearing, T.R. remained in relative care. J.R. had not participated in services and his whereabouts were unknown. The Agency recommended that the court terminate his reunification services. V.R. was attending outpatient treatment for drug abuse, visited T.R. regularly, and had resumed care of one-year-old L.R. V.R. reported to the Agency's social worker that she was committed to reunifying with T.R. At the hearing, the court terminated J.R.'s reunification services and ordered continued services for V.R.
By the time of the next review hearing, the Agency reported that V.R. was continuing to progress in her reunification efforts. She was living in an apartment with L.R., her boyfriend, and their newborn son. She had completed an outpatient recovery program and had progressed to unsupervised visitation with T.R. At the 12-month review hearing, the juvenile court found that returning T.R. to parental custody would be detrimental, but ordered continued services for V.R.
During the final review period, the Agency received a referral of suspected child abuse by V.R. after an unsupervised visit. A social worker observed bruising on T.R.'s arm and hand and V.R. admitted that she may have grabbed the child too hard when she was trying to manage her three small children. As a result, the Agency mandated supervised visitation and provided V.R. with parenting coaching services. In its initial report for the 18-month review hearing, the Agency expressed concern about V.R.'s ability to manage three children all under the age of three, and recommended termination of V.R.'s reunification services and that the court set a permanency planning hearing.
In a supplemental report before the hearing, however, the Agency changed course. It reported that V.R. was doing well with the coaching services and that she had again been approved for unsupervised visitation. As a result, the Agency arranged V.R.'s first overnight visit and obtained a four-week continuance of the review hearing to allow for additional time to consider placement with V.R. In its final report before the hearing, the Agency recommended placement with V.R. with family maintenance services. In this period, T.R. who was then almost two and still nonverbal, was diagnosed as autistic. The court adopted the recommendation and set an additional review hearing in six months.
During the subsequent review period, V.R. maintained her sobriety but stopped taking T.R. to therapy and reported that she was overwhelmed by T.R.'s care. The Agency recommended continuation of the dependency and family maintenance services. The juvenile court again adopted the Agency 's recommendation and set another review hearing for January 2018. By the time of that hearing, V.R.'s circumstances had deteriorated, and she was living in a hotel with T.R. and his two siblings. The Agency had referred V.R. to a housing program, but the program's coordinator reported that V.R. was difficult to get in touch with and had not completed the application process. The Agency was also investigating new reports of neglect, including that the children were not receiving regular meals and were living in dangerous conditions. T.R.'s service providers reported that V.R. regularly missed his appointments.
During the review period, J.R. resumed contact with the Agency. J.R. complained that V.R. was not letting him see T.R. or L.R. J.R. told the family's social worker that he had not used any substances since he was released from custody in May of 2015 and that he wanted visitation and partial custody of T.R. At the family maintenance review hearing on January 30, 2018, the court continued T.R. as a dependent placed in V.R's care, with continued family maintenance services. The court also ordered enhancement services and visitation for J.R. and scheduled the next review hearing for July 2018.
In the Agency's report before the next hearing, the family's social worker stated that V.R.'s housing remained inconsistent and she and the children had been moving between hotels and family members. V.R. continued to miss appointments for T.R. and was not cooperative with the housing specialist assigned to assist her. The report also stated that the Agency was investigating a new referral alleging that V.R. was emotionally abusing T.R. In addition, the social worker reported that V.R.'s parental education services had been terminated in April because she had failed to attend any scheduled appointments in February and March. Then, on May 1, 2018, V.R. was arrested for theft of a cell phone. She reported that she was released from police custody the same day and was required to do community service.
During this review period, J.R. maintained steady employment and reported that he had negative drug tests throughout his probation. The Agency reported that J.R. had been arrested for driving while intoxicated on December 31, 2017, but that he was participating in recovery services through the MAAC project. J.R. maintained weekly visits with T.R. in the home of the paternal grandmother, where J.R. resided, and was also participating in parenting classes. The Agency again recommended continued placement with V.R. and continued services for both parents. At the July 2018 hearing, the court agreed and found that continued jurisdiction was necessary, ordered continued services for both parents, and set additional review hearings for October 31, 2018 and January 30, 2019.
In its review report for the October hearing, the Agency stated that it had received a referral from the child abuse hotline alleging that a paternal relative had sexually abused T.R. and L.R. The next day, V.R. reported that L.R. had told her that she was touched inappropriately by a paternal relative and that three-year-old T.R., who was still nonverbal, was also abused. Both minors were evaluated by child abuse experts, and they did not disclose any abuse. The Agency noted that J.R. continued to participate in parent training and maintained weekly supervised visits with T.R. At the interim review hearing on October 31, 2018, the court again ordered T.R. remain placed with V.R. and continued services for both parents.
For the next review hearing, the Agency reported that V.R. had finally obtained stable housing and that she was meeting the basic needs of T.R. and her other children. However, she had missed several drug tests throughout the review period. V.R. was on the waitlist to restart developmental services for T.R., but the Agency's social worker remained concerned that V.R. was inconsistent in following through with services. V.R. was also preventing J.R. from visiting with the minors and accused J.R. of abusing them. The Agency had investigated the abuse allegations and closed them as unfounded. Because V.R. was preventing visitation, J.R. had initiated custody proceedings for L.R. in family court.
At the review hearing on January 30, 2019, J.R. was present with his counsel. V.R. was not present. The Agency's counsel advised the court that V.R. was not permitting J.R. to visit T.R. The Agency also requested unsupervised visitation for J.R. The court ordered V.R. to allow T.R. to visit his father and also granted the request for J.R. to begin unsupervised visitation. The court then continued the hearing for two weeks so that V.R. could be present.
In the Agency's report for the continued hearing, the family's social worker stated that after she informed V.R. that J.R. was to receive visitation, V.R. became irate, told the social worker that she would not permit the minors to see J.R. unless he took a lie detector test, and lashed out angrily at the social worker. The social worker also reported that V.R. had not permitted J.R. to visit T.R. for five months. At the hearing, the court expressed dissatisfaction with V.R.'s failure to allow J.R. to visit the minor and suggested that continued placement with V.R. might not be appropriate. J.R.'s counsel stated that he intended to file a petition under section 388 seeking placement of T.R. and the court continued the hearing.
On March 29, 2019, J.R. filed a section 388 petition seeking placement. J.R. asserted that there was a substantial risk of harm to the minor if he were to remain in V.R.'s care. Additionally, J.R. asserted that he had a safe and stable home, a strong support network, and that he had regularly participated in services, while V.R. had repeatedly failed to drug test and failed to obtain needed services for T.R. In the Agency's addendum report for the hearing, the Agency supported J.R.'s petition and expressed continued concern over V.R.'s failure to obtain necessary services for T.R. or to enroll him in preschool, and her inability to cope with T.R.'s autism. The Agency was also concerned that V.R. was abusing substances because of her repeated failure to drug test. The Agency reported that T.R. had begun regular visitation with J.R., had a successful overnight visit, and that J.R. was committed to providing a stable home for T.R.
At the continued hearing, minor's counsel joined in the Agency's recommendation to grant J.R.'s section 388 petition. The court agreed that J.R. had made a prima facie showing of changed circumstances and that placement with him was in T.R.'s best interests. The court set the matter for a contested evidentiary hearing.
In its report for the evidentiary hearing, the Agency stated that V.R. was difficult to get ahold of and that she continued to miss drug tests. She had finally enrolled T.R. in preschool but was not otherwise proactive in obtaining services. V.R. did ultimately allow J.R. to resume visitation and he began regular, overnight visits with T.R. that went well. V.R. missed a child and family team (CFT) meeting on May 6, 2019. By this time, T.R. was receiving both occupational and speech therapy twice a week through his preschool. At the CFT meeting, the parties discussed areas of concern with T.R.'s development and V.R.'s failure to pick up T.R. from school several times.
By the time of the hearing, J.R. had completed community service and probation, and was about to complete the MAAC project. J.R. continued to be committed to caring for T.R. and was continuing to seek custody of L.R. in family court. J.R. had also participated in an in-home parent training program that focused on healthy relationships, listening skills, and family violence. At the evidentiary hearing on May 23, 2019, both V.R. and J.R. were present in court with their counsel. The parties agreed to continue the matter to June 26, 2019, for V.R. to drug test. The court ordered T.R. to begin an extended visit with J.R. and for V.R. to have one overnight visit per week, conditioned on a negative drug test.
In its next supplemental report, the Agency supported placement with J.R. in the paternal grandmother's home with visitation for V.R. and termination of the court's jurisdiction. Four-year-old T.R. was doing well there, and the social worker noted that he had gained weight and was talking more. V.R. continued her pattern, missing drug tests on May 29, June 11, and June 17, 2019. On June 18, 2019, the Agency received another referral for neglect of the two nondependent children in V.R.'s care and was in the process of investigating the allegations. The social worker reported that she had difficulty contacting V.R. When she finally reached her on June 19, V.R. said that she had missed her most recent drug test because she had food poisoning and was six months pregnant. V.R. also stated that she believed J.R. was behind the new referral for neglect and that she would not cooperate with any investigation.
At the contested hearing on June 26, 2019, V.R. and J.R were again both present with their counsel. All parties agreed that the court should grant custody of T.R. to J.R. but counsel for the minors, the Agency, and J.R. all wanted additional clean drug tests by V.R. before allowing overnight visitation. As a result, the court directed V.R. to submit to a drug test that day and again continued the contested hearing to July 3, 2019.
In the Agency's final addendum report, it again asked the court to award custody to J.R., with supervised visits to V.R., who had disobeyed the court's order and again failed to submit to a drug test. V.R. had also missed another CFT meeting on July 1, 2019. At the continued hearing, J.R. was present with his counsel. V.R. did not attend. The court received the Agency's reports in evidence. The social worker was present in court but was not examined. In its opening argument, the Agency advocated in support of J.R.'s petition, noting that V.R. had not been compliant with the Agency's drug testing requirements, had neglected needed services for T.R. throughout the case, and had prevented J.R. from visiting the minor for five months despite court orders requiring visitation. The Agency asserted that removal under section 361, subdivision (c) and section 388 was appropriate. The minor's counsel joined in the Agency's position, asserting that T.R. was "at substantial risk of harm if he were to remain in the care of the mother. The mother is using, and that's evidenced by all of her missed test[s]; and that use is having an impact on her ability to care for the minor which is evidenced by her neglect of his developmental needs and all of his services."
V.R.'s counsel asked the court to deny the petition, contending that removal was not warranted because J.R. had not shown that there was any risk of harm to T.R. if he were to remain in V.R.'s care. Counsel acknowledged the missed drug tests, but noted that the one test V.R. had taken was negative and that V.R. had recently shown progress in obtaining services for T.R. After hearing the arguments of counsel, the court granted J.R.'s petition, finding a change in circumstances and that granting the change in placement was in T.R.'s best interests. The court also found by clear and convincing evidence that there would be a substantial risk of harm if the child was placed with V.R. The court awarded physical custody of the child to J.R., ordered joint legal custody, and ordered V.R. to receive reasonable, supervised visits. The court then terminated its dependency jurisdiction. V.R. timely appealed.
DISCUSSION
I
Under section 388, a party may petition the court to change, modify, or set aside any previously made order, including orders for guardianship. (See § 360, subd. (a).) The petitioning party has the burden of showing, by a preponderance of the evidence, that (1) there are changed circumstances or new evidence, and (2) the proposed modification is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.)
Once a child is initially removed from a parent or guardian, and the parent or guardian files a section 388 modification petition to change the child's placement, "the burden of proof is on the [petitioning] party to show by a preponderance of the evidence that there is new evidence or that there are changed circumstances that make a change of placement in the best interests of the child." (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.); § 388.) Generally, "[t]he petitioner seeking modification must satisfy a preponderance of evidence standard." (In re A.R. (2015) 235 Cal.App.4th 1102, 1116-1117 (A.R.), citing Welf. & Inst. Code, § 388, subds. (a)(2), (c), (d); Cal. Rules of Court, rule 5.570(h)(1).) However, "[t]he heightened standard of proof [of clear and convincing evidence] stated in section 361, subdivision (c), applies to an order removing a child . . . from [a] parent's physical custody pursuant to a request for modification under section 388." (A.R., at p. 1116, citing In re M.V. (2006) 146 Cal.App.4th 1048, 1059 ["the clear and convincing standard is applied to protect the rights of parents and guardians, but it is applied to no one else"].)
"A petition for modification is 'committed to the sound discretion of the juvenile court, and the . . . court's ruling should not be disturbed on appeal unless an abuse of discretion is clearly established." (A.R., supra, 235 Cal.App.4th at pp. 1116-1117.) " ' "[']The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.' " ' " (Stephanie M., supra, 7 Cal.4th at pp. 318-319.) Importantly here, "[t]he factual findings necessary for removal of a child from parental custody pursuant to section 361, subdivision (c), must meet the substantial evidence test." (A.R., at p. 1117.)
II
As noted, V.R.'s sole appellate contention is that insufficient evidence supported the juvenile court's finding that T.R. would be at risk of harm if placed in her care. This argument is not well taken. In its argument in support of J.R.'s petition, the Agency asserted that removal from V.R.'s care was appropriate under section 361, subdivision (c)(1). This section provides for removal where there is a risk of substantial danger to the minor's physical health and safety or emotional well-being if the minor is not removed. (§ 361, subd. (c)(1).) Critically, the law does not require harm to have befallen a child in order for removal to be appropriate. Rather, "the focus of the [law] is on averting harm to the child." (In re F.S. (2016) 243 Cal.App.4th 799, 813, italics added; see also In re R.V. (2012) 208 Cal.App.4th 837 ["The court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child."].)
As set forth above, in the months leading up to the termination of the court's jurisdiction, V.R. continuously missed drug tests, which the juvenile court appropriately construed as having been positive tests. Further, V.R. did not return calls from the family's social worker for multiple days and, when new reports of neglect of her other children surfaced in the days before the contested hearing, V.R. refused to cooperate with the Agency's investigation. This evidence supported the court's finding that V.R. was again abusing drugs and that T.R. would not be safe if returned to her care. (See, e.g. In re Lana S. (2012) 207 Cal.App.4th 94, 105-106 [Mother's "lengthy history of drug abuse, denial of any drug problem," and "refusal to voluntarily drug test and enter drug treatment" sufficient evidence to support removal.].) Further, T.R. had significant special needs because of his autism diagnosis and V.R. failed throughout the dependency to ensure that he received appropriate medical and developmental support. Indeed, even after the juvenile court made a prima facie finding on J.R.'s petition seeking placement with him, V.R. missed two CFT meetings to address T.R.'s needs.
Tellingly, at the initial evidentiary hearing on J.R.'s petition at which the court provided V.R. with additional time to drug test, V.R did not object to placement with J.R.
In sum, the evidence before the juvenile court was sufficient to support its findings both (1) that placement with J.R. was in T.R.'s best interests in accordance with section 388 and (2) that returning T.R. to V.R.'s care presented a significant risk to the minor's physical and emotional safety.
In the event V.R. is able to improve her situation, she has the ability to seek a different custody arrangement in the family court proceeding initiated by J.R.
DISPOSITION
The order is affirmed.
AARON, J. WE CONCUR: McCONNELL, P. J. DATO, J.