Opinion
A131040
08-26-2011
In re A.L. et al., Persons Coming Under the Juvenile Court Law. SOLANO COUNTY DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Plaintiff and Respondent, v. P.L., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. J38174, J38175, J38886)
In this third appeal involving mother P.L., father H.F., and their four children (sons A.L. and H.L., and daughters S.L., and H.L-F.), we consider P.L.'s challenge to the juvenile court's denial of her Welfare and Institutions Code section 388 petition seeking to reopen reunification services. P.L. contends that the court abused its discretion because the petition established that her circumstances had changed and reopening services was in the children's best interest. We conclude there is no merit to her claim, and we affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise noted.
BACKGROUND
P.L.'s lengthy history with respondent Solano County Department of Health and Social Services (the Department) has been thoroughly detailed in our two previous opinions. (In re A.L. (Feb. 4, 2011, A127658) & In re H.L.-F. (Mar. 16, 2011, A129391) [nonpub. opns.].) We reiterate the relevant portions of that history, borrowing much of it from our opinion in appeal no. A127658 and including additional facts where pertinent.
In appeal no. A127658, we rejected H.F.'s contention that the juvenile court abused its discretion when it denied his section 388 petition seeking to change the court's order terminating reunification services as to A.L., H.L., and S.L. We did conclude, however, that the Department failed to comply with the notice requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA), and conditionally remanded for the limited purpose of compliance with ICWA notice requirements. As P.L. presents no challenge to the adequacy of the ICWA notices, we do not address that issue here.
In appeal no. A129391, we rejected P.L.'s contention that there was insufficient evidence to support the court's jurisdictional findings as to H.L-F., who was born just days after the court terminated P.L.'s and H.F.'s parental rights to A.L., H.L., and S.L.
Detention
On December 12, 2007, a social worker from the Department went to an apartment building in Vallejo to conduct a welfare check after receiving information that P.L. was using drugs around her children, then-20-month-old A.L. and four-month-old H.L. The social worker was accompanied by three Vallejo police officers in light of an outstanding warrant for P.L.'s arrest. They found P.L. and the two children in a bedroom they had been renting. The room, which smelled as if someone had recently been smoking methamphetamines, was filled to capacity with belongings piled up to four and one-half feet high, with a small space on the floor for bedding. The officers found two glass pipes used to smoke methamphetamines and several small plastic baggies typically used to package narcotics for sale. H.L. was wearing a soiled diaper, and there were no clean diapers in the home. P.L. was arrested on the outstanding warrant and the children taken into protective custody.
Two days later, the Department filed a section 300 petition on behalf of A.L. and H.L., alleging that father H.F., whose whereabouts were unknown, and P.L failed to protect the children (§ 300, subd. (b)), made no provision for their support while P.L. was in jail (§ 300, subd. (g)), and abused or neglected a sibling of the children (§ 300, subd. (j)).
In factual support, the Department detailed the circumstances surrounding the children's detention, also explaining that P.L. had a history of untreated substance abuse which rendered her incapable of providing regular care for the children. According to the Department, P.L. first came to its attention in May 2001, when the boys' half-sister, I.L-D., was born. At the time of her birth, both P.L. and I.L-D. tested positive for methamphetamines. P.L. denied using illegal drugs and declined all services. In April 2006 and August 2007, when A.L. and H.L. were born, P.L. again tested positive for methamphetamines, as did the babies.
P.L.'s two older children, I.L-D. and C.L-A., lived with her mother in Georgia. H.F. was not the father of either child.
As to H.F., the Department alleged that he was unemployed, used methamphetamines with P.L., and was unable to care for the boys due to his substance abuse problems.
In an intake report filed the same day as the petition, a social worker related that she had met with P.L. the previous day. P.L. claimed that the family was being evicted from the room they were renting because they had been unable to pay rent after someone stole her purse. Their belongings were piled up because they were preparing to move. Before the police arrived, H.F. had just left to go get diapers and a moving truck. P.L. denied using drugs since she gave birth in August 2007, but was purportedly willing to address her substance abuse problems.
Following a detention hearing on December 17, 2007 (at which neither parent appeared), the court ordered both boys detained and placed in a foster home.
Jurisdiction/Disposition
In a February 20, 2008 combined jurisdictional/dispositional report, the Department explained that P.L.'s history with the Department dated back to 2001 and that, despite her denials, she had substance abuse problems dating back at least that far. H.F., the Department noted, was aware of P.L.'s substance abuse and that she continued to abuse drugs during her pregnancies with both A.L. and H.L. According to the Department, the substance abuse problems of both parents contributed to their lack of stable housing, the lack of medical care for their children, and the poor conditions under which they were living when the children were detained.
The Department also explained that, although it had made referrals to both parents for substance abuse assessments and voluntary services, neither parent participated in the services, responded to repeated attempts to contact them, or appeared for random drug testing. Further, in the two months since detention, they had visited with the children only once, with numerous visits having been canceled because they either failed to call in advance or show up. The Department summarized: "Although the parents stated that they would 'do anything' to get their children back, neither parent has engaged in services and both have avoided contact with the Department. Due to the lack of cooperation with services, coupled with the young ages of the minors in question, the risk to the children remains very high. The Department is looking forward to working with the family and with the children doing well in their transition to foster care and continuing to thrive, the Department is hopeful that these children can be returned to the care of their parents quickly."
The Department recommended that the court adjudge A.L. and H.L. dependents of the juvenile court, continue their detention, and order reunification services for P.L. and H.F. Appended to the report was a case plan (prepared without input by P.L. and H.F. who failed to meet with the case manager or the social worker) that required both parents to participate in substance abuse treatment, obtain suitable housing for the family, and attend a parenting skills program. Supervised visitation was to be permitted for a minimum of three hours per week.
The contested jurisdictional/dispositional hearing was held on March 27, 2008. P.L. did not appear; H.F., who had been incarcerated the prior month, was transported from jail for the hearing. After H.F. submitted on the basis of the Department's report, the court adjudged A.L. and H.L. dependents of the juvenile court, ordered reunification services and supervised visitation for both parents, and continued the matter for a six-month status review.
H.F. was incarcerated from February 14, 2008 through April 2, 2008. He was again remanded into custody on July 25, 2008.
Six-Month Review
On September 19, 2008, in advance of the six-month review, the Department filed a status report recommending termination of reunification services as to P.L. She failed to provide an address, the telephone numbers she had provided were unreliable, and her whereabouts were unknown. She had been provided with numerous referrals for services but had not participated in parenting classes or substance abuse services, nor had she cooperated with a required substance abuse assessment or submitted to drug testing.
In terms of visitation, the report noted that P.L. failed to show for two visits in January and four visits in February, and was late for the three visits in January and February for which she did show up. Because she blamed the problem on a lack of transportation and money, the Department provided her with bus passes in February 2008. In March 2008, P.L. missed two visits and made two visits, one of which occurred at a McDonald's fast food restaurant.
The report also described an incident that occurred on April 5, 2008, when H.L. was hospitalized with a respiratory illness. According to the report, P.L. walked into H.L.'s hospital room, picked up A.L., and attempted to leave with him. After security and the hospital social worker intervened, P.L. put A.L. down, and he promptly ran to his foster mother. P.L. purportedly threatened to "tear that woman apart." During H.L.'s hospitalization, P.L. spent two nights in his room. According to the nursing staff, she spent the daytime sleeping next to H.L.'s bedside, ignoring his crying and refusing to change his diaper or care for him in anyway. She purportedly told the staff, "I can sleep if I want. It is your job to change his diapers."
From April 6 to August 13, 2008, P.L. did not contact the Department to request visitation, and her whereabouts were unknown. She finally contacted the Department on August 13, 2008 to request a visit. A visit occurred six days later, although P.L. showed up one-half hour late. She failed to show for visits scheduled on August 26 and September 2, 2008.
As to H.F., the Department recommended continuing reunification services. It noted that while in custody, he was participating in the Keys to Recovery drug and alcohol treatment program, attending parenting classes, and receiving visits from the boys.
At the September 24, 2008 six-month review hearing, counsel for P.L. contested termination of reunification services, and the court set a contested hearing.
On October 9, 2008, P.L. gave birth to S.L., A.L. and H.L.'s sister. Like her brothers and half-sister before her, S.L. tested positive for methamphetamines at birth. She was removed from P.L.'s care and placed in the same foster home as her brothers. The Department filed a section 300 petition, alleging that P.L. and H.F. failed to protect S.L. due to their substance abuse problems (§ 300, subd. (b)), made no provision for her support (§ 300, subd. (g)), and had abused or neglected her siblings (§ 300, subd. (j)).
P.L. failed to appear at the October 22, 2008 contested six-month review hearing, and her counsel requested a continuance on her behalf. After denying the request, the court found that P.L. failed to participate in her case plan and to make substantial progress in treatment. Because there was not a substantial probability of returning A.L. and H.L. to her care within six months, the court terminated reunification services as to P.L. It did, however, continue services as to H.F.
At a January 22, 2009 contested jurisdictional/dispositional hearing concerning S.L., the court found her to be within the jurisdiction of the juvenile court, bypassed reunification services for P.L., and ordered reunification services for H.F.
12-Month Status Review
In a February 25, 2009 12-month status review report, the Department recommended extending reunification services to H.F. for four additional months, to the 18-month review period. As to P.L., the report noted that she failed to maintain consistent visitation with her children. She had made one visit in October but had missed a second visit that month. In December, she had contacted the Department requesting a visit with her children. The social worker met with her to deliver a bus pass, and P.L. advised that she was homeless, did not have a telephone number, and was "doing self-treatment" for her substance abuse problems. P.L. made it to a visit the following day. In January, the social worker advised P.L. that weekly visits would be arranged but that she needed to contact the Department the night before each visit to confirm her attendance. She failed to do so throughout the months of January and February.
At the 12-month review hearing, the court continued reunification services for H.F. for four months and set the matter for a June 10, 2009 18-month review hearing.
18-Month Review
In a May 22, 2009 18-month status review report, the Department recommended that A.L., H.L., and S.L. remain in out-of-home placement and that reunification services for H.F. be continued. It noted that H.F. had relapsed three times in late April and early May 2009 but that despite his relapses, he was making progress with his case plan objectives. Based on the recommendation of his substance abuse counselor, H.F. was referred for a residential drug treatment program, but because there was no bed available at the time, he was placed on a waiting list and was to continue outpatient treatment until a residential program had an opening. The report indicated that the Department was unaware of P.L.'s current situation as she had not provided it with a telephone number or address, and contacted the Department only sporadically.
It was the six-month review for S.L.
With respect to visitation, the Department noted that H.F. had attended 22 out of 25 visits since February 26, 2009. He had been granted unsupervised visits, but that arrangement was revoked after he allowed P.L., who was only permitted supervised visits, to be present at two of the visits. Additionally, H.F. had taken the children to his home without the social worker having first assessed its appropriateness for visits.
At the June 10, 2009 18-month status review hearing, counsel for the children opposed the Department's recommendation for continuation of services. The court expressed skepticism that it could terminate services at that point because H.F. had only been provided services as to S.L. for six months. It then set a contest date for July 28, 2009.
Two days later, H.F. was terminated from his drug treatment program following a positive drug test. The discharge summary explained that he "had too many positive tests. He was unable to stay clean in outpatient." Residential treatment was again recommended on the ground that H.F. needed a "higher level of treatment."
A July 27, 2009 addendum filed by the Department advised the court that in light of H.F.'s positive drug tests and termination from his substance abuse treatment program, it was now recommending that the court terminate reunification services and set a section 366.26 hearing.
At the September 15, 2009 contested hearing, the court adopted the recommendation of the Department, terminated services, and set the matter for a section 366.26 hearing on January 6, 2010, which was subsequently continued to February 3.
Section 366.26 Report
On December 15, 2009, the Department submitted its section 366.26 report recommending termination of parental rights and a permanent plan of adoption. It summarized H.F.'s visitation history, noting that he had eight visits in 2008 (seven of which occurred while he was in jail), 14 out of 24 visits from January to March 2009, seven visits in April 2009, no visits in September and October 2009, and one visit each in November and December 2009. The Department characterized the visits as positive, noting that H.F. would play with the children, bring them snacks, and change their diapers.
As to P.L., in addition to summarizing her lengthy substance abuse problem, the report related her erratic visitation history: "The mother, P.L., has not maintained consistent visitation with the children. She has gone for long periods of time without visiting them. Ms. L. stated that the reasons that she did not visit the children are because she did not have a home and she did not have transportation. Ms. L. saw the children January 2, 2008. She did not visit the children for 7 months until August 18, 2008. She showed up for 1 visit in October, no visits in November 2008, and 1 visit on December 24, 2008. Ms. L. missed her visits in January 2009, had 2 visits in February 2009, 1 approved visit and 1 unauthorized visit in March 2009, approved visit [sic]and 1 authorized visit in April 2009, 1 visit in May 2009, none in June 2009. In July Ms. L.'s visits were decreased to once per month due to numerous no shows. Ms. L. participated in one visit July 2009, none between August to November 2009, and one in December 2009. Ms. L. shows the children affection. The children are not attached to her. The children rarely interact with their mother. Ms. L. is appropriate during some of the visits and other times, she does not change them, she brings unapproved people, and she argued with social workers in the presence of the children." The report advised that P.L. claimed to have been clean and sober for seven months.
The report also related a social worker's recent interview with P.L. and H.F.: "On December 3, 2009, when I interviewed Mr. F. and Ms. L., they blamed the Department for not helping them. They admitted that they have been together on and off for seven years. They reported that they were told to pretend that they were not together and that they do not know who to trust at Child Welfare. Mr. F. and Ms. L. are still struggling and trying to get on their feet. Mr. F. and Ms. L. have been provided family reunification services and they have not completed their case plans. They have not progressed in services sufficiently to have unsupervised visitation. Mr. F. was provided 18 months of family reunification services and the children have been in foster care for two years already. Mr. F. and Ms. L. would like to have custody of their children. However, they cannot provide for the children's basic needs, they still have inadequate housing for a family of five, they do not have financial stability, Ms. L. has not maintained a relationship with the children, they have not shown for any substantial period of time that they can stay drug free, and both of the parents appear to be suffering from depression. Mr. F. and Ms. L. are both missing teeth, which is indicative of long-term methamphetamine abuse. Although Mr. F. has maintained some visitation with his children, the visitation has been sporadic and the benefits of adoption outweigh the relationship between Mr. F. and his children."
After noting that the children were young, healthy, able to attach to parental figures, and adoptable, the Department concluded: "The L. children are young children in need to [sic] a permanent home. The children have been in foster care for a substantial period of time and they deserve to be in a permanent home with stability. The children have been assessed as adoptable. Their caretaker has expressed her desire to adopt the children. The children are doing well in their placement. Termination of parental rights is not detrimental to the children. Adoption is in the best interest of the children. There is clear and convincing evidence that the children will likely be adopted."
Section 388 Requests to Change Orders
Shortly before the section 366.26 hearing, H.F. and P.L. both filed requests to change an order of the court pursuant to section 388. P.L. sought to change the court's January 22, 2009 order bypassing reunification services for S.L.
Referred to as JV-180 requests or section 388 petitions or requests.
Although P.L.'s written request sought to change only the order bypassing services as to S.L., the hearing on the section 388 requests appeared to concern services as to all three children.
Exhibit A to the request, identifying "[w]hat had changed after the judge's order that would change the judge's mind," stated: "Ms. L., mother of A.L., H.L., and S.L., has made substantial progress towards recovery and has been clean and sober for a little over six months. See attachment A, Certificate of Sobriety. Ms. L. has worked diligently to achieve and maintain this sobriety by her involvement with the Vallejo Fellowship and various other A.A. and N.A. meetings. See attachment B, A.A. and N.A. signatures. Ms. L. has added to her substance abuse recovery efforts by enrolling in a structured substance abuse program, Project Aurora, on December 12, 2009, where she attends group five days a week. See attachment C, Letter from counselor. Furthermore, Ms. L. has supplemented these efforts with ancillary visits related to her prenatal care at Kaiser Vallejo by meeting with an Early Start Specialist for support and education on having a healthier baby and pregnancy. See attachment D, Letter from Early Start Specialist."
In Exhibit B, addressing why the requested change would be better for the children, P.L. stated: "A significant bond exists between the three siblings in this matter and their parents, who remain together and could provide a two-parent home for all three children upon successful reunification, free from the substance abuse problems that brought the minors before the court. The change of circumstances in the form of Ms. L.'s significant progress towards recovery creates a substantial likelihood of family reunification, thereby furthering the goal of dependency court to preserve the family."
Appended to P.L.'s request was a six-month certificate of sobriety from Vallejo Fellowship, an attendance sheet for A.A./N.A. meetings, and letters confirming her participation in a substance abuse treatment program through Youth and Family Services and her meetings with an early start specialist at Kaiser.
Two weeks later, P.L. submitted additional documentation in support of her section 388 request. This included letters confirming that she was receiving prenatal care, had completed a car seat safety class, and was participating in a smoking cessation class; the results for three negative drug tests in December 2009; and attendance sheets for numerous A.A. meetings in between January 6 and 23, 2010.
Similarly, H.F.'s section 388 request sought to change the court's September 15, 2009 order terminating reunification services. Like P.L., he claimed to have made "substantial progress" toward addressing his substance abuse issues, purportedly having been clean and sober since May 2009. And, again like P.L., he claimed that a "significant bond" existed between H.F., P.L., and their children and that there was now a significant likelihood of reunification. H.F. appended attendance sheets for A.A./N.A. meetings and a letter confirming his participation in prenatal classes.
The court granted an evidentiary hearing on the requests, scheduled to coincide with the February 3, 2010 contested section 366.26 hearing.
Hearing on the Section 388 Requests
On February 3, 2010, the court heard the section 388 requests, with H.F. the first to testify. He explained that he and P.L. had been living together, but she had recently moved. He was planning to do the same, renting a room from someone in his bible study group, although he did not know the address of his intended residence. He testified that he had been clean since May 2009, was attending three to five A.A./N.A. meetings per week, was working on the second of the 12 steps, and received a key chain for being clean for six months. He was submitting to drug testing as required by the terms of his probation, and as far as he knew, his tests had been clean since September 2009. Similarly, he had not been advised of any probation violations since September 2009. He had been attending prenatal classes with P.L., including car seat, parenting, and childcare classes. He was participating in visits with his three children, but his lack of transportation sometimes made it difficult to get to the visits. He was allowed two visits per month, and made two visits in November 2009, two in December 2009, and one in January 2010. H.F. denied that he recently refused a drug test requested by the Department, claiming instead that he was ill at the time, and did not recall failing to take a drug test requested by the Department in August 2009.
P.L. testified next, explaining that she had just moved out of the home where she and H.F. had been tenants because it was not a safe living environment. She had moved into a sober living home called "The Renaissance Family Center," which allowed children. She and H.F. were still a couple and were in fact expecting another child. She had been clean and sober for the past seven months and had been participating in a program called Project Aurora, a program for pregnant women that included individual and group counseling and parenting instruction, since December 12, 2009. She was attending A.A./N.A. meetings three to five times a week and church on a regular basis. She was getting prenatal care, was enrolled in a smoking cessation program, and had taken classes in baby care, breastfeeding, and car seat usage.
P.L. acknowledged that she had missed numerous visits with her children, including all visits during a seven-month period when she was homeless, had no telephone, and was stressed and depressed due to H.F.'s incarceration. She lacked reliable transportation and funds and had difficulty trusting people who let her down about transportation. She found it hard to express herself, had a problem dealing with people, and made little effort to maintain contact with the social worker. P.L. acknowledged that the problems were her own fault, but claimed that the programs in which she was participating had helped changed her perspective.
Franceen Rea, a social worker from the Department, testified that she had reviewed the documents submitted in support of the parents' section 388 requests. Regarding the signatures purportedly attesting to their attendance at A.A./N.A. meetings, she testified that both parents submitted attendance records containing duplicate signatures. Specifically, 25 of the signatures submitted by P.L. were duplicates, while nine of those submitted by H.F. were, meaning they had attended far fewer meetings than it appeared. Ms. Rea also testified that the week before the hearing, she had requested that H.F. and P.L. submit to a hair strand test which would test for drug use over the past 90 days, but they did not show up for the test. Neither parent had supplied her with any evidence of drug testing since September 2009.
Concerning visits, Ms. Rea testified that H.F. did not visit with his children in September 2009 or October 2009. He visited once in November, twice in December, and once in January 2010. Ms. Rea observed H.F.'s visits during November and December, testifying that he brought snacks and acted appropriately, and that the children appeared to follow his directions. She confirmed that previous social workers had noted that the children appeared bonded to him. His visits had previously been reduced to two per month because he had missed a number of visits and then services were terminated.
The Department's report noted one visit in December. Presumably H.F. had visited with the children for a second time in December after the Department submitted its report.
As to visitation by P.L., Ms. Rea testified that she had two visits in February 2009, one supervised visit and one unauthorized visit in both March and April 2009, and one visit in May. In July 2009, visits were reduced to once a month, and P.L. had one visit in July 2009 and another one in August 2009. From September through November 2009, P.L. had not visited with the children, and she had two visits in December 2009 and one in January 2010.
Following the presentation of evidence, counsel for H.F. argued that the change of circumstances justified granting H.F.'s request to change the order terminating reunification services. His substance abuse problems had, in part, prompted the Department's involvement, and while he had been assessed as needing residential treatment, there was no such program available to him before reunification services were terminated. Despite this, he had "done his best to cobble together services since that time without the help of the Department," abstaining from the use of drugs, remaining clean and sober, regularly attending A.A./N.A. meetings, complying with the terms of his probation, and becoming involved in church. In light of this change in circumstances, his counsel submitted, it would be in the children's best interest to reinstitute reunification services.
Counsel for P.L. likewise argued that P.L. had changed her circumstances by "essentially putting programs together for herself in order to improve herself in order to address her substance abuse issues and in order to prepare herself for parenthood." She was participating in Project Aurora to address her substance abuse problems, attending A.A./N.A. meetings to supplement that program, and seeking additional support through her church, all on her own initiative. She also found housing at the Renaissance Center, a center geared towards mothers with children. In addition to being clean for several months, she had recognized that it was her problems that brought about the dependency, and she was changing her attitude for the better. Counsel claimed it would be in the children's best interest "to remain in a sibling group with two parents who are both committed to their recovery and who are both committed to the children as a family."
Counsel for the children disagreed, arguing instead that the circumstances were not very different from those at the inception of the dependency. P.L. had joined Project Aurora in December, but H.F. was about to lose his housing again and was unable to provide a new address. He had lengthy periods of time when he did not visit the children, and while he had resumed visitation, it was still sporadic. There were, she argued, changing circumstances, but not changed circumstances that warranted the reinstitution of reunification services.
Counsel for the Department likewise urged the court to deny the requests. She argued that the circumstances had not changed sufficiently to justify granting the parents' request. She described their living situation as "tenuous," noting that they were being evicted from the house where they had been living, H.F. was unable to provide an address of where he would be moving, and there was no evidence that all three children could live at the Renaissance Center with P.L. She also noted that the A.A./N.A. attendance sheets contained duplicate signatures, making it appear that the parents had attended more meetings than they actually had. She further argued that under section 388, the parents bore the burden of showing not only a genuine change of circumstances, but also that modifying the court's prior order was in the children's best interest. And here, she argued, there was no evidence that extending reunification services was in the children's best interest.
At the conclusion of arguments, the court the denied the section 388 requests, stating:
"I think there has been a change in circumstances and I think that the parents should be recognized for the efforts that they've made recently regarding their drug addiction issues. It's important that they continue those efforts. There's another child coming and to give that child a chance to remain with the parents, it's very important that they be successful in their drug treatment.
"However, in view of the amount of time that has been spent on the children who are presently before the court, the change isn't enough for me to make the additional findings that are necessary to recommence reunification efforts. I don't think that the general requirements of 388 apply to this case. I think what is—what is required is what would be sufficient for an extension of reunification services or at the time of the 26 hearing. I cannot make a finding that there's a substantial likelihood that the children will be returned in the next six months. I cannot find that visits have been consistent and regular. They have been at times, but at times they have not been, so I think the designation 'sporadic' is the best that I can give.
"I don't think that the children's need for permanency at this stage is outweighed by any benefit that would be caused by reopening reunification services based on just a possibility of return rather than a substantial probability. So for those reasons I'm going to deny the petitions."
Section 366.26 Hearing
After a brief recess, the court then commenced the section 366.26 hearing. Ms. Rea again took the stand, testifying that the children all assessed as adoptable, that it was very likely they would be adopted if they were freed for adoption, and that their caretaker was committed to adopting them.
When asked about the children's relationship with their parents, Ms. Rea testified that P.L. did "not have a relationship with the children." P.L. had visited three times since September 2009, and during the visits she interacted with the children very little, talking to them without playing with them. As Ms. Rea described it, "She was affectionate with them and she helped feed them, but I didn't see a strong relationship between the children and her."
Ms. Rea testified that she had personally observed two of H.F.'s visits with his children, who seemed to enjoy the time together. H.F. interacted with them, brought them toys and food, and played with them such that the visits were generally positive in nature. Nevertheless, she did not view the relationship between father and children as "strong," noting that although the two boys addressed him as "Daddy" and listened to him, they did not have a significant attachment to him. She reiterated that H.F. had not visited in September and October and had made four visits since November.
As to the children's relationship with their foster mother, Ms. Rea described it as "very attached" such that the children looked to her for a parent/child relationship. The case had been going on for 25 months, and the three children had lived with their foster mother since their respective detentions. She had taken very good care of them, and the Department had no concerns about the placement.
H.F. also testified at the section 366.26 hearing. He stated that prior to the removal of A.L. and H.L., he was regularly involved in their care, such as feeding them and changing their diapers. Since the commencement of the case in December 2007, he had made as many visits as possible, including while he was incarcerated. When he arrived, often bearing food, toys, and birthday and Christmas presents, the children would run to him and call him "Daddy." During the visits, he would play with and read to them, and correct them when they misbehaved. At the conclusion of some visits, the children wanted to leave with him because the visit was not long enough. He acknowledged that he missed some visits, but claimed it was because of difficulties with transportation (he traveled by bus from Vallejo to Fairfield) or "some misunderstanding." Despite his separation from the children, he connected with them as their father and loved them very much.
P.L. did not testify on the ground that it would be too emotionally challenging to do so. Instead, her attorney made an offer of proof as to what her testimony would be, representing that P.L. believed she had stayed connected to the children through visitation and that she had a bond with the children.
Argument followed the testimony. Counsel for the Department argued that at that stage in the proceeding, the focus was no longer on the parents but rather on permanence for the children. Based on the evidence presented, unless the court found that one of the exceptions to termination to apply, the court was compelled to terminate parental rights and free the children for adoption. The parent bond exception was, she argued, inapplicable because the parents did not and could not show that the children would be greatly harmed if the parental rights were terminated. The evidence showed sporadic visitation of a generally positive nature, which was insufficient to override the goal of permanency for the children. Given the age of the children and the length of time they had been in family reunification, it was time for permanence. She concluded: "[W]hile the Department commends the parents for the changes they appear to be making for the benefit of the child they are about to welcome, it's time for permanency for A.L., H.L., and S.L. They've waited long enough. It's time to free them so they can be adopted into a safe, secure, and stable home."
Section 366.26, subdivision (c)(1)(B)(i).
Counsel for H.F. urged the court not to terminate parental rights, claiming the evidence established that the parental bond exception applied. The exception, she explained, prohibited the termination of parental rights where the parent has maintained regular contact with the child and where the child would benefit from continuing the relationship with the parent. This was, she contended, the case here. There was a strong bond between H.F. and his three children, he had lived with A.L. for one and a half years and H.L. for five months before the dependency action began, and since their detention, he had done his best to maintain regular contact with his children. The children were happy when he arrived for a visit, the interactions were appropriate and loving, and the children often cried or were sad when the visits were over.
Counsel for P.L. argued that P.L. shared a bond with her children such that the children would benefit from continuing the relationship. This was evidenced by the positive reactions the children exhibited in response to visits from their parents. Counsel further noted that A.L. lived with P.L. for over one and a half years prior to his removal, time that was a significant bonding period between the young child and his mother.
Counsel for the minors concurred with the Department, disagreeing that the parental relationship exception applied in this case. Visitation had not been regular and consistent, nor did the evidence establish that it would be detrimental to the children to terminate parental rights.
Following the conclusion of argument, the court terminated the parental rights of P.L. and H.F. to all three children, stating: "It is clear—it has been shown by clear and convincing evidence that it is likely that each of the three children will be adopted, which leads me to the exceptions. The only possible exception is the first one that counsel have mentioned. I do think that the visitation has been substantial and regular, but—and I do think that there is a bond between the children and their parents—but I don't think it rises to the level that is contemplated by Autumn H. in that the parents have not shown that the termination of the relationship would be detrimental to the children. It's not a compelling reason as what is required by the statute and I'm going to find that no exception applies. I'm going to find that the child's permanent plan is adoption."
In re Autumn H. (1994) 27 Cal.App.4th 567.
Fifteen days after the section 366.26 hearing, the Department filed an advisement of placement change, notifying the court that on February 9, 2010—a mere six days after the hearing—the three children were removed from their foster home and placed in a new foster home in Nevada City. The reason for this change does not appear in the record.
On March 9, 2010, P.L. filed a timely appeal from the termination of her parental rights.
ANALYSIS
The Juvenile Court Did Not Abuse Its Discretion In Denying P.L.'s
Section 388 Request Seeking to Reopen Reunification Services
P.L. challenges the trial court's order denying her section 388 request to change its prior order terminating reunification services. She contends that the court abused its discretion because her request demonstrated that her circumstances had changed and that reinstating reunification services would be in the best interest of her children. The Department presents two arguments in response. First, it contends that P.L. waived her right to pursue this appeal. Second, it disputes that the trial court abused its discretion. We find no waiver, but conclude that the trial court was within its discretion in denying P.L.'s section 388 request.
Regarding the Department's waiver argument, on February 23, 2010, H.F. timely filed a notice of appeal from the court order terminating his parental rights to A.L., H.L., and S.L. On March 9, P.L. did the same. The superior court forwarded H.F.'s notice to this court, but for reasons not evident from the record, it failed to timely forward P.L.'s notice to us. In fact, P.L.'s notice was not lodged with us until February 1, 2011, 11 months after she filed it. As a result, while H.F.'s appeal proceeded to disposition, culminating in our February 4, 2011 opinion in no. A127658, P.L.'s appeal languished, making no progress for nearly a year.
The Department now urges that because P.L. failed to move her appeal forward despite knowing that H.F.'s appeal—which raised a similar claim—was progressing, we should find that she waived her right to pursue her appeal. We decline to do so, since the delay was apparently the result of an error by the superior court, not by P.L., who did as she was instructed by filing her notice of appeal. We thus turn to the merits.
As we explained in our opinion in appeal no. 127658: "Section 388, subdivision (a) provides in pertinent part: 'Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.' Under this section, the juvenile court may modify or set aside a previous order if new evidence or changed circumstances exist, and the proposed modification is in the best interests of the minor. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806 [section 388 permits the modification of a prior order where the evidence shows that (1) changed circumstances or new evidence exists; and (2) the proposed change would promote the best interests of the child].) The parent seeking to change the court's prior order bears the burden of proof by a preponderance of the evidence (Zachary G., supra, at p. 806), and the juvenile court must liberally construe a section 388 petition in favor of its sufficiency. (Cal. Rules of Court, rule 5.570(a); In re Marilyn H. (1993) 5 Cal.4th 295, 309; In re Edward H. (1996) 43 Cal.App.4th 584, 592.) The 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 Jasmon O. (1994) 8 Cal.4th 398, 415; In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.)" The record here supports the juvenile court's conclusion that P.L. failed to meet her burden.
P.L. had a history of chronic substance abuse so severe that four of her six children tested positive for methamphetamines at birth. It was this drug problem that led to the detention of A.L., H.L., and S.L. From the time of detention in December 2007 to July 2009, a period of 20 months, P.L. made no attempt to address her problems. She failed to avail herself of any services offered by the Department, and failed to seek treatment on her own once services were terminated. She claimed to have gotten clean in July 2009, but she did not begin to participate in a structured treatment program until December 2009, two months before the hearing on her section 388 request. Given that P.L.'s drug problem dated back to 2001, and likely earlier, she was still very new to recovery.
Further, while P.L.'s efforts to achieve sobriety were commendable, her claim of seven months' sobriety was not fully substantiated. She had only been participating in Project Aurora since December 2009, a period of just over two months at the time of the hearing. Any claimed sobriety prior to that time must be met with skepticism given her history of failed "self-treatment." Additionally, she had provided the Department no evidence of drug testing since September 2009, and the drug test result submitted in support of her petition showed that at most she had a negative drug test on December 21, 2009. And, according to Ms. Rea's testimony, she failed to comply with the Department's recent request for hair strand testing.
Ms. Rea also testified that the A.A./N.A. attendance verification forms P.L. submitted in support of her petition contained duplicate signatures, making it appear as if she had attended 25 more meetings in December 2009 and January 2010 that she in fact had. P.L. presented no evidence to refute this testimony, and made no effort to explain the appearance of the duplicate signatures.
Finally, P.L.'s visitation record can be described as sporadic at best. She visited with her children in January, February, and March 2008, and saw them in the hospital in April 2008. She then failed to contact the Department until August 2008, a period of four months. She had one visit in August, and then only two more for the duration of 2008. She fared marginally better in 2009, visiting a total of 12 times, two of which visits were unauthorized. Significantly, however, although P.L. claimed to have been sober since July 2009, she failed to visit with her children between August and November 2009. She offers no explanation for the lack of visits during this supposed time of sobriety. And in the six months preceding the hearing on her section 388 request, P.L. visited with her children at most four times.
In light of the foregoing, the record showed that at the time of the hearing on P.L.'s section 388 request, she was overcoming her substance abuse problems, not that she had overcome them. Or in the words of the court in In re Casey D. (1999) 70 Cal.App.4th 38, 49, the record showed "changing" circumstances, not "changed" ones.
P.L. challenges what she regards as the juvenile court's suggestion that she was too late in showing changed circumstances, arguing that "a parent may file a section 388 petition even long after the expiration of the reunification period." But her argument misses the point. The court was not disputing the timeliness of her petition. Rather, it was rejecting as inadequate her eleventh hour attempt to derail a stable, permanent alternative for the children. Given that P.L. had a documented substance abuse dating back to 2001 and that the children had been detained since December 2007, her two months of treatment at Project Aurora could easily be construed as a "last-minute change of heart during the last brief months of a long saga of poor choices, inappropriate behavior and refusals to care for her [children, which was] not compelling evidence of a 'legitimate,' 'genuine' or 'lasting' change of circumstances." (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 447-448.)
But even if P.L. had carried her burden of establishing changed circumstances, the court was well within its discretion in concluding that reopening reunification services was not in the best interest of the children. At the point of permanency in a dependency case, there is a rebuttable presumption that continuing the children in their placement outside of the home is in their best interest. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) The determination of a child's best interests under section 388 involves looking at a number of factors, including the seriousness of the problem leading to the dependency and the reason for its continuation; the strength of the parent-child and child-caretaker bonds and the time the child has been in the system; and the nature of the change of circumstance, the ease by which the change could be achieved, and the reason the change did not occur sooner. (In re Kimberly F., supra, 56 Cal.App.4th at pp. 530-532.)
As P.L. candidly admits, "Demonstrating that the efforts to reunify would benefit the [children] was an uphill battle, as each minor had been drug exposed as a result of [her] poor decisions. In addition, during the reunification period [P.L.] went through extended periods of having no contact with her children [citation], or attending visits only sporadically." At best, she identifies the 12 visits she had with the children in the year preceding the section 388 hearing and claims that she "interacted positively with them" during those visits. That was not enough to meet her burden. The evidence showed that the children looked to their foster mother for a parent/child relationship, while they had essentially no relationship with P.L. A.L. and H.L. had been living with their foster mother for 25 months, A.L. since he was 20 months old and H.L. since he was four months old. S.L., who was detained at birth, had never lived with either of her parents. By all indications, the foster mother had provided a loving, stable home for over two years and would continue to do so. In light of this, we cannot conclude that the juvenile court exceeded the bounds of reason when it found that the best interests of the children would not be served by reinstituting reunification services.
Finally, we close, as we did in our opinion affirming denial of H.F.'s section 388 request, with an observation that within days of the section 388 and 366.26 hearings, the Department removed the children from their long-term foster home with their prospective adoptive mother and placed them in a foster home in a different county. We do find this curious because the children had been placed with their foster mother since their respective detentions, the Department's reports all spoke very highly of her parenting skills and relationship with the children, and it appeared likely that she would adopt the children. But, as P.L. concedes, the change of placement cannot serve to support her abuse of discretion argument, as we must consider the evidence that was before the court at the time it ruled on her section 388 request. And that evidence amply supports the court's decision to deny her petition.
DISPOSITION
The orders denying P.L.'s section 388 request and terminating her parental rights to A.L., H.L., and S.L. are affirmed.
Richman, J. We concur: Haerle, Acting P.J. Lambden, J.