Opinion
D059772
12-05-2011
In re A.W., et al., Persons Coming Under the Juvenile Court Law SAN DIEGO COUNTY HEATH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. A.W. (mother), Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Diego County Super. Ct. No. 511433A-B)
APPEAL from an order of the Superior Court of San Diego County, Laura J. Birkmeyer, Judge. Affirmed.
A.W. (mother) appeals an order denying her Welfare and Institutions Codesection 388 modification petition. We affirm.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL HISTORY
A section 388 modification petition requires, in part, the petitioner to show a change of circumstance or new evidence. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) To evaluate A.W.'s contention on appeal, we believe it necessary to discuss A.W.'s and her children's extensive involvement in the dependency system over the past 16 years. The First Dependency Case (December 1995 to November 1997)
On December 28, 1995, the San Diego County Health and Human Services Agency (the Agency) filed its first petition in this case. At that time, A.W. had one son (Ao.W.) who was only two months old. A.W. was 23 years old. The petition alleged under section 300, subdivision (a), Ao.W. had suffered, or there was a substantial risk he would suffer, serious physical harm or illness, by the inability of A.W. to provide regular care due to mental illness, developmental disability, or substance abuse. Specifically, the petition alleged on December 23, 1995, the infant suffered seizures from having serum sodium as a result of being fed too much water by the mother, who was developmentally delayed.
A.W. has a history of mental illness, beginning at age 11. In April 1993, she was hospitalized in a mental health facility because of her violent behavior and hallucinations with paranoia. She also apparently contemplated suicide while pregnant with Ao.W.
A.W. had a history of alcohol abuse.
On March 14, 1996, the court sustained the petition, finding the allegations to be true by clear and convincing evidence. It subsequently declared Ao.W. a dependent and ordered Ao.W. placed in licensed foster care. The court ordered A.W. to comply with the requirements of the reunification plan.
During the first six months of the case, A.W. improved in her willingness to cooperate with the Agency and learn necessary parenting techniques. She was active with the regional center. Ao.W.'s caregiver permitted A.W. liberal visitation of Ao.W. During the extended visits, A.W. was able to feed, bathe, engage, and put Ao.W. down for his naps. A.W. eventually progressed to unsupervised day visits. On November 6, 1996, the court continued Ao.W. in foster care and ordered another six months of reunification services.
A.W.'s improvement, however, was inconsistent. For example, A.W. represented to a social worker she was not involved in a romantic relationship, which turned out to be untrue. During an unannounced visit on April 21, 1997, A.W. introduced the social worker to her boyfriend. A.W. reported she was pregnant with his child and expected to deliver in November. A.W. continued to suffer developmental delays and struggled to understand the original protective issues. She claimed Ao.W.'s seizures due to improper feeding and water intoxication were not her fault. At the 12-month permanency hearing on June 5, 1997, the court ordered Ao.W. placed back in A.W.'s care, with family maintenance services.
A.W. then received in-home services to assist her in parenting, but still struggled. During a home visit in July 1997, A.W. appeared to be just waking up at 9:00 a.m., while allowing a nine year old to care for Ao.W. A.W. admitted she had gone out "partying" the evening before the social worker's visit. A.W. did receive a positive report from P.R.I.D.E., Inc., which indicated it would continue to work with A.W. on parenting issues and life management skills even after the juvenile dependency case was closed. On November 3, 1997, the court terminated jurisdiction.
The Second Dependency Case (January 2002 to August 2003)
On January 25, 2002, the Agency filed petitions on behalf of six-year-old Ao.W. and three-year-old An.W. The petitions alleged from October 2001 to January 2002, A.W. used alcoholic beverages to excess, as evidenced by her arrest for child
endangerment and public intoxication. A.W. admitted she was an alcoholic who suffered blackouts when she drank. Additionally, the petitions alleged the mother suffered from mild mental retardation and psychosis, which rendered her unable to provide regular care for her two young sons.
This arrest was in October 2001. Three months earlier, A.W. was arrested for public drunkenness. During the previous year, A.W. had two arrests: one for fighting in public in February 2000 and one for battery in September 2000. The arrest in September 2000 occurred after A.W. pulled a knife on someone in her apartment complex. A.W.'s criminal history also included three arrests for battery and a charge for petty theft in 1995.
--------
Leading up to the filing of the petition, A.W. was again spiraling out of control. In early January 2002, A.W. was hospitalized in a mental health facility for six days. Her diagnosis upon discharge was psychosis and mild mental retardation. When she entered the hospital, A.W. stated she had been drinking and was feeling angry and frustrated. She also was having trouble with her boyfriend and hearing voices. In addition, A.W. threatened to kill herself if her children were taken from her and said she "would take the children with her." Around this time, Ao.W. stated A.W. "whoops him with a belt" sometimes, and he did not always feel safe at home.
During an interview with a social worker, A.W. reported she started drinking at age 16. A.W. described herself as an alcoholic, who would drink anything. She drank to the point of blacking out and would have no memory of the events that took place while she was intoxicated.
On February 20, 2002, the court sustained the petitions, declared the boys dependents, and ordered them placed in licensed foster home care. It ordered A.W. to comply with the requirements of the case plan and set a review hearing in six months. A.W.'s visits were to remain supervised.
In April 2002, G. Preston Sims, Ph.D., performed a psychological evaluation of A.W. He gave her an axis I diagnosis of alcohol abuse, schizophrenia, and borderline intellectual functioning. On axis II, he diagnosed her with mild mental retardation and antisocial personality disorder. Dr. Sims assessed A.W. as a risk to others, but indicated the risk would be reduced if she were to remain sober for a period of six months. During the psychological evaluation, A.W. reported that from approximately April 2001 to January 2002, she drank six Long Island ice teas every evening. She stopped on New Year's Day 2002 because she put her hands on the boys "in the wrong way." She apparently put her hands around her sons' necks. On the advice of her regional center counselor, A.W. went to the hospital to get help for herself.
A.W. participated in a program called Parent Care from March through May 2002, but she continued in her relationship with her abusive boyfriend, who was reportedly a drug dealer. A.W. admitted relapsing on alcohol in May 2002. She enrolled in treatment at the House of Metamorphosis on May 28.
The House of Metamorphosis offered a dual diagnosis group for residents who also suffered from mental illness, but A.W. attended this group on an inconsistent basis. A.W. also had verbal confrontations with some of the staff members. Although A.W.'s performance was somewhat erratic, A.W. was allowed to remain in the residential program to determine if medication would stabilize her.
A.W. began taking medication in November 2002, which helped stabilize her, but she still had difficulty controlling her emotions. A.W.'s House of Metamorphosis counselors and an Agency caseworker agreed it would be best for A.W. to transition into a sober living facility, where she would remain for at least three months before moving into an apartment.
Also, while at the House of Metamorphosis, A.W. exhibited signs of understanding her previous failures to provide her children with a stable environment. For example, she talked about her bad decisions that led to the children being removed from her care. She admitted subjecting her children to the traumatic experience of witnessing her boyfriend abuse her. She recalled Ao.W. asking her to stop drinking. She was, however, visiting the boys regularly. At the six-month review hearing on August 19, 2002, the court continued the boys in foster care and ordered another six months of reunification services.
Ao.W. and An.W. participated in individual therapy and were doing fairly well. They were making progress in their social and language skills. According to the foster caregiver, the boys were doing well in school. On February 18, 2003, the court continued reunification services another six months.
The Agency's 18-month permanency report dated July 22, 2003, recommended the boys be transitioned back into their mother's care. This recommendation was made with some reservations. A.W. seemed overwhelmed that she needed to continue in her 12-step program and drug test while also working and attending school. However, all A.W.'s tests had been negative, and she was scheduled to graduate from the House of Metamorphosis. A.W. continued to receive services from the regional center to help her with money management, obtaining an apartment, and securing childcare.
By August 2003, A.W. had secured childcare and the boys returned to live with her on a 60-day trial visit. On September 23, the court ordered the boys placed with A.W.
The Agency's family maintenance review report dated January 5, 2004, recommended termination of dependency jurisdiction. The boys were doing well back home with A.W. During the social worker's home visits, the children were well-groomed, well-behaved, and the apartment was clean. The boys reported they were happy to be home and had continued to maintain contact with their former foster mother. A.W. remained active with the regional center. On January 5, 2004, the court terminated jurisdiction.
The Third Dependency Case (June 2008 to May 2011)
On June 10, 2008, the Agency filed a petition on behalf of Ao.W. and An.W. alleging the mother was unable to provide regular care due to alcohol abuse. The Agency filed the petition because, on June 5, 2008, A.W. was extremely intoxicated and belligerent. She punched nine-year-old An.W., lost her balance, and hit her head on a brick wall, causing a deep laceration to her head. The petition stressed A.W.'s history of alcohol abuse.
The investigating social worker noted A.W.'s long criminal history, which included multiple arrests for battery and being drunk in public. Regarding the events on June 5, 2008, A.W. stated she was at the bus stop and her bus pass had been stolen by a "white guy." A.W. had been drinking during the day, and stated her blood alcohol level was "only 2.8." When her sons approached her at the bus stop she thought An.W. was the white guy who stole her bus pass, so she hit him. A.W. was arrested and An.W. was taken to Children's Hospital.
At Children's Hospital, An.W. was treated for a headache as well as abrasions and swelling of his face. An.W. disclosed he was fearful of his mother when she got drunk. Apparently, the last time A.W. was intoxicated, she told An.W. she wanted to kill herself. Ao.W. stated, "My brother and me stay up late because we're afraid of her when she drinks. But she is great when she doesn't drink."
On July 31, 2008, the court sustained the petitions, declared the boys dependents, and removed physical custody from A.W. It ordered Ao.W. and An.W. placed in licensed foster care. The court ordered reunification services be provided.
On August 25, 2008, A.W. entered the residential substance abuse recovery program called CRASH. However, A.W. was terminated from the program on September 12 due to her aggressive behavior. On October 8, 2008, A.W. entered a different residential treatment program called the Serenity House. On December 22, A.W. was discharged from Serenity House after she was discovered under the influence of alcohol and became belligerent with staff. Immediately thereafter, A.W. entered treatment at the House of Metamorphosis. During the first six months of the case, the boys remained placed in a licensed foster home. The caregiver facilitated weekly supervised visits with A.W. At the six-month review on January 26, 2009, the court ordered the boys remain in foster care, found the services provided had been reasonable, and continued services for another six months.
A.W. was discharged from the House of Metamorphosis due to inappropriate conduct in February 2009. However, A.W. did complete a parenting class and was participating in individual therapy. A.W.'s drug tests had been negative, and she maintained weekly supervised visits. A.W. began unsupervised visits with Ao.W. and An.W. on July 18. At the 12-month permanency hearing on July 27, 2009, the court found there was a substantial probability the boys would be returned to A.W. by the 18-month date and continued reunification services to December 2009.
The Agency's 18-month permanency report dated December 7, 2009, recommended the boys be placed back with A.W. A.W. had made significant progress in therapy and received positive feedback from her counselor. The therapist indicated A.W.'s biggest struggle would be to stay connected to her 12-step meetings and sponsor. A.W. had participated in outpatient substance abuse treatment at Mujer Women's Recovery Center since March 2009. The Agency arranged for A.W. to receive in-home services from the Intensive Family Preservation Program.
The court appointed special advocate (CASA) prepared a report for the court dated December 7, 2009. She supported a return of the boys to A.W. on a 60-day trial visit. She noted A.W. had been through the dependency process on three prior occasions, had 13 prior child abuse or neglect referrals, and a lengthy criminal history. Ao.W. and An.W. had been placed together in a licensed foster home since June 2008, which provided a very stable environment for them. The boys stated they wanted to live with A.W. The CASA supported reunification, as well as conjoint therapy between A.W. and the boys. A.W. also was scheduled to begin anger management classes at the end of November 2009.
On December 7, 2009, the court ordered a 60-day trial visit that was not to begin until conjoint therapy was in place. It continued the 18-month permanency review hearing to February 2010. On February 18, 2010, the court placed Ao.W. and An.W. with A.W. and set a review hearing in six months.
On May 3, 2010, the Agency filed a section 387 petition on behalf of Ao.W. and An.W. alleging placement of the boys with A.W. was no longer effective and a higher level of care was required. The Agency filed the petition because, on April 27, 2010, A.W. was arrested after consuming excessive amounts of alcohol and clashing with police officers.
A.W. admitted relapsing on alcohol since April 1, 2010. She had been drinking gin, vodka, and beer every other night for the last month. The boys were detained back with their previous foster mother. The social worker noted that after 22 months of services, A.W. had not mitigated the original protective issues. A.W. admitted she could not care for the boys and wanted them somewhere safe.
A.W. registered to begin treatment on May 11, 2010, but she failed to attend the intake appointment. During a supervised phone call, Ao.W. voiced his anger at A.W. by telling her she had not been a mother to them and was choosing alcohol over her sons. On May 19, A.W. refused to submit to an on-demand drug test. The boys were detained in relative care. On June 30, 2010, the court sustained the section 387 petition. The Agency's addendum report dated August 26, 2010 recommended a section 366.26 hearing be set to select and implement a permanent plan. The report noted, despite an abundance of services, the original protective issues remained and the risk to the minors remained "very high."
On August 20, the boys moved to the home of two of their relatives. On August 26, 2010, the court ordered physical custody of the boys be removed from A.W. and followed the Agency's recommendations by terminating reunification services and scheduling a section 366.26 hearing.
According to the section 366.26 WIC report dated December 27, 2010, both boys appeared to be developmentally on target and in good physical health. Ao.W. was 15 years old and An.W. was 12 years old. They had completed individual therapy. The social worker described them as respectful and well-mannered. Not counting the times they were reunified with the mother or unofficially residing with relatives, Ao.W. experienced 10 placements, and An.W. endured six. A.W. had been maintaining regular weekly visits.
The boys were considered generally adoptable because there were three local families as well as several out-of-county placements interested in adopting a sibling set like Ao.W. and An.W. However, the social worker recommended guardianship as the most appropriate permanent plan. The social worker opined it would be detrimental to the boys to terminate parental rights due to the fact that the boys were older and objected to adoption; the social worker also considered the positive relationship they shared with A.W.
The relative caregivers with whom the boys had been placed were committed to providing the boys a permanent home through guardianship. The couple had been together for seven years and married for almost five years. One of caregivers worked full time and the other stayed at home. Ao.W. and An.W. had known their relative caregivers their entire lives. The boys had stayed with them for certain periods of time, over the years, when A.W. battled alcohol abuse. The relative caregivers were capable of meeting the boys' needs.
Although sober, A.W. still exhibited anger management problems. During a supervised visit on January 16, 2011, there was a disagreement between the caregivers and A.W. The argument escalated to the point that one of the relative caregivers called the police to intervene. A.W. became upset and grabbed An.W. by the shirt and pulled him to the ground. An.W. had redness on his chest but no significant injuries.
Following two continuances, the matter came before the court for a section 366.26 hearing on April 25, 2011. On that date, A.W. filed a section 388 petition seeking return of the boys to her care or additional reunification services. In her petition, A.W. alleged she had been sober for almost six months. She also claimed to be participating in services at Harmony West, which included a parenting course, counseling, relapse prevention, and a domestic violence seminar. The court found A.W. had made a prima facie showing of changed circumstances and continued the matter for an evidentiary hearing on A.W.'s petition for modification.
The court held the contested section 388 hearing on May 13, 2011. A.W. was present with counsel as were Ao.W. and An.W. The court allowed the parties to stipulate to testimony. Thus, counsel stipulated A.W. would testify she loved her children and wanted to remain part of their lives. She had always provided for them, even when she was sick. A.W. worried every day about their well-being. She wanted the boys placed back with her. A.W. felt that the caregiver was interfering with visitation. A.W. wanted to close by stating her children were all she had and all she wanted.
Counsel also stipulated Ao.W. and An.W. would testify they felt safe with A.W. and wanted to live with her. They loved A.W. very much and would like to visit her as much as possible. Their second choice would be to continue living with their current caregivers.
The court also received into evidence copies of A.W.'s NA meeting slips, copies of the boys' report cards showing they were doing well in school, and the Agency's reports. After considering all the evidence presented and hearing argument of counsel, the court denied the mother's section 388 petition, finding she failed to establish either changed circumstances or a modification would be in the boys' best interest.
The court then proceeded to the section 366.26 hearing, considered the evidence previously admitted, and heard additional argument from counsel. It appointed the relative caregivers as guardians for the boys, ordered reasonable visitation with A.W. at a minimum of one time per week, and terminated dependency jurisdiction. A.W. timely appealed the denial of her section 388 petition.
DISCUSSION
A.W. contends the court abused its discretion when it denied her modification petition. She argues she established a change of circumstances by remaining sober for six months and participating in a parenting course, relapse prevention, a domestic violence seminar, counseling, and NA meetings. Relying on the factors set forth in In re Kimberly F. (1997) 56 Cal.App.4th 519, 528, A.W. asserts the evidence shows it was in her children's best interests to modify the section 366.26 order. We disagree.
Under section 388, subdivision (a), a parent, interested person, or the dependent child (generically, petitioner) may petition the court to change, modify, or set aside a previous order on the grounds of changed circumstances or new evidence. (§ 388, subd. (a).) The petitioner requesting the modification has the burden of proof to show a change of circumstances or new evidence, and that the proposed modification is in the child's best interests. (In re Jasmon O., supra, 8 Cal.4th at p. 415.)
We review the grant or denial of a petition for modification under section 388 for abuse of discretion. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) Although the abuse of discretion standard gives the trial court substantial latitude, " '[t]he scope of discretion always resides in the particular law being applied, i.e., in the "legal principles governing the subject of [the] action . . . "'"
(Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 119, citing City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.) The focus of a petition for modification under section 388, subdivision (a) is whether the petitioner has shown a legitimate change of circumstances.
The court did not abuse its discretion when it determined A.W. did not show changed circumstances. In all, A.W. has received almost 70 months of reunification services. During this time, she enjoyed periods of sobriety and participated, often inconsistently, in various self-help programs. However, these glimpses of stability have been consistently interrupted by episodes of alcohol abuse and violence, often triggered by the return of A.W.'s children to her custody.
While A.W.'s most recent six-month sobriety and involvement in multiple programs is commendable, we share the court's concern that A.W.'s claimed change in circumstances is no different than her previous respites during her troubled history. In other words, nothing in the record leads us to conclude A.W. can or will sustain her present circumstances, especially if her children are returned to her custody.
Further, even had A.W. established changed circumstances, the court acted within its discretion when it determined that modifying the order was not in the children's best interests. In considering a child's best interests, the court considers many complex factors and does not reduce the analysis to a comparison of the parent's and caretaker's households. (In re Kimberly F., supra, 56 Cal.App.4th at p. 530.) The court in In re Kimberly F. suggested these factors include the seriousness of the reason for the dependency, the reason the problem was not remedied sooner in the proceedings, the relative strength of the child's bonds to the parent and caretaker, the length of time the child had been in out-of-home placement, and the nature of the change in circumstances. (Id. at pp. 530-532.)
Here, A.W. has consistently shown she becomes overwhelmed when Ao.W. and An.W. are placed in her care. In these circumstances, she abuses alcohol and often becomes violent, placing her children in danger. A.W.'s periods of stability and sobriety have been sporadic at best. Simply put, A.W. has not shown she is capable of providing a stable environment for her children.
We acknowledge Ao.W. and An.W. testified that they love their mother and want to live with her. For her part, A.W. testified she loves her children. While we do not discount the love between a mother and her children, these feelings do not compel us to conclude a modification would be in the children's best interest. Indeed, A.W.'s affection for her children has not led her to consistently provide a stable and safe environment for them.
Further, we cannot ignore the stability enjoyed by Ao.W. and An.W. with their relative caregivers. They have both improved in school and benefited from a positive home environment. Also, A.W. is permitted reasonable visitation with the boys at least once a week. Thus, Ao.W. and An.W. can remain in a secure and loving home with their relative caregivers while they continue to develop their relationship with A.W. In short, A.W. has provided no evidence it would be in Ao.W.'s and An.W.'s best interest to modify the court's section 366.26 order or provide additional reunification services.
The court did not err when it denied A.W.'s petition to modify the order setting a permanency plan hearing under section 366.26.
DISPOSITION
The order is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.