Opinion
F079162
10-23-2019
In re S.T. et al., Persons Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. ANGIE B., Defendant and Appellant.
Carolyn S. Hurley, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Boze, County Counsel, and Maria Elena R. Ratliff, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. JVDP-18-000007, JVDP-18-000008)
OPINION
THE COURT APPEAL from orders of the Superior Court of Stanislaus County. Ann Q. Ameral and Rubén A. Villalobos, Judges. Carolyn S. Hurley, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Boze, County Counsel, and Maria Elena R. Ratliff, Deputy County Counsel, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Peña, J. and Smith, J.
Judge Ameral denied appellant's Welfare and Institutions Code section 388 petition; Judge Villalobos granted termination of parental rights pursuant to Welfare and Institutions Code section 366.26.
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INTRODUCTION
Appellant Angie B. (mother) contends the juvenile court erred in denying her Welfare and Institutions Code section 388 petition without an evidentiary hearing. She maintains the juvenile court erred in denying the petition without a hearing because she made a prima facie showing of changed circumstances and that granting the petition would be in the best interests of the minors. We affirm.
References to code sections are to the Welfare and Institutions Code. --------
FACTUAL AND PROCEDURAL SUMMARY
Mother is the only appellant in this case. Therefore, we focus on those facts specific to her and the issues raised in this appeal.
Mother delivered a child in 2006; mother and child tested positive for amphetamines at birth. This child was not living with mother. In 2012, mother was the subject of a substantiated referral to child welfare regarding another child. Referrals to child welfare regarding mother were evaluated out in 2006, 2012, 2014, and 2015.
The minor, S.T., was born in 2016. When tested by her parole officer in July 2017, mother tested positive for amphetamines/methamphetamines while pregnant with Z.T., her second child with father.
In October 2017, a referral for general neglect was substantiated. Mother and father apparently had been residing together. Mother was on probation, had a history of drug use, and both the home and S.T. were dirty and "unkempt." S.T. needed medical treatment and there was a failure to follow through with needed treatment.
Mother delivered Z.T., her fifth child, in October 2017. Her three older children were no longer in her custody. Z.T. tested negative for drugs at birth. Mother reported that she was on both parole and probation.
On April 7, 2018, there was an altercation at father's home instigated by mother. Father had custody of S.T. and Z.T. (the minors). Mother arrived at the home with her boyfriend and broke windows. Mother was on parole at the time and had an open child welfare case pending. Mother was arrested.
When social workers spoke with mother on April 17, 2018, they reminded her she was out of compliance with her voluntary family maintenance plan because she was not attending Alcoholics Anonymous/Narcotics Anonymous meetings, not attending counseling, and failed to keep the minors safe. On April 20, 2018, the minors were placed in protective custody.
A section 300 petition was filed on behalf of the minors on April 24, 2018. The petition alleged that mother had a history of substance abuse, an extensive criminal record, and mother and father had engaged in domestic violence in the presence of the minors. Mother's criminal history included convictions for possession of a controlled substance for sale, burglary, robbery, grand theft, and battery on a spouse. The social worker contacted mother's parole officer, who indicated mother had failed to report to him as required upon her release from custody after being arrested on April 7, 2018.
The social worker met with mother at the parole office, where it was reported mother tested negative for drugs. However, the social worker suspected mother was under the influence because of mother's slurred speech, droopy eyes, lethargy, and inability to stay on topic. Mother agreed to meet later at the social worker's office.
The social worker asked mother to take a drug test because she believed mother had manipulated the results of the test with the parole officer. Mother admitted cheating on prior drug tests and agreed to test again. During the test, the social worker observed mother making an "unusual" movement; the resulting liquid in the cup appeared to be water, did not register a temperature, and was inconsistent with the viscosity of urine.
The detention report detailed 18 prior child welfare referrals involving mother, dating back to 2006. Mother's extensive criminal history dated back to 2002. It was noted that mother had prior voluntary family maintenance cases that were unsuccessful.
Both parents appeared at the detention hearing. The minors were ordered detained and a jurisdiction and disposition hearing was scheduled.
In the jurisdiction and disposition report, it was noted that mother reported completing her education through the seventh grade and was working on obtaining her GED. Mother had a sporadic job history. Mother acknowledged a history of methamphetamine abuse. Father had served in the U.S. Army and was now suffering from PTSD and other ailments relating to his service. Father was being treated through the Department of Veterans Affairs clinic. Father and mother had married in November 2017. Father had filed for dissolution of the marriage but planned to withdraw the paperwork.
S.T. had been born with a club foot. While she had undergone surgery, she was significantly behind in recovery because mother and father failed to follow through with therapy. S.T. would now need serial casting to recover flexibility and fit into a brace. S.T. also needed speech and language development services. Z.T. appeared to be on track developmentally.
Following detention, mother had attended a substance use disorder assessment but had failed to provide a urine sample; a hair follicle test was pending. Mother had not completed an application for services.
The proposed case plan called for reunification services. Mother was to complete a clinical assessment and follow all recommendations. Mother also was to engage in a substance abuse assessment, treatment, and testing. Further, mother was to complete individual counseling focusing on domestic violence, perpetrator issues, anger issues, childhood molestation, codependency, and other issues as identified by the clinician or mother.
At the May 31, 2018 jurisdiction and disposition hearing, the minors were declared dependents of the juvenile court. The proposed case plan was adopted.
A progress review hearing was held on August 31, 2018. Mother failed to appear. It was noted that mother failed to follow through with referrals for residential treatment, tested positive for methamphetamines in June and July, failed to test in August, and participated in only two visits with the minors. The juvenile court found mother's progress was "very poor."
Due to the lack of progress, the six-month review report recommended termination of reunification services and the setting of a section 366.26 permanent plan hearing with a recommended permanent plan of adoption. The report also noted that mother had been arrested on September 13, 2018, for violation of parole and inflicting corporal injury on a spouse; the charges were subsequently dismissed.
The six-month review report noted that following her third referral, mother entered a residential treatment program on October 19, 2018. She tested positive for amphetamines at admission. Mother had not started any of her other services. Mother had visited the minors a total of four times but missed 14 scheduled visits. At all the visits except one, she was accompanied by father.
S.T. was found to be behind on immunizations; a plan was in place to address this. Her club foot was being treated regularly and appropriately in her current placement and she now was able to walk. Her vocabulary was improving greatly, although she was still slightly behind for her age. S.T. no longer needed behavioral health services.
Z.T. was developmentally and emotionally on track. Her immunizations were behind, and a plan was in place to bring them current.
The police report of the September 13, 2018 incident was attached to the six-month review report. Mother had punched and scratched father and father called police. Mother had also caused a disturbance at one of the treatment centers on August 18, 2018.
When mother eventually agreed to enter a treatment program, she told the social worker that father makes her commit criminal acts to get money and hits her in ways that do not leave bruises. A few days later, mother told the social worker that everything she had said was a lie.
Mother and father requested a contested review hearing. At the December 7, 2018 hearing, mother testified that she did not start services timely because she did not take the matter seriously and was continuing to use controlled substances. She testified that methamphetamine and alcohol were her drugs of choice. She had been in residential treatment for 47 days; her treatment had been extended to 90 days. She acknowledged being in a "relapse mode" and using drugs regularly since the minors were removed in April 2018.
Mother testified that since detention, she had been arrested two times for domestic violence, but the charges were dismissed. She had completed her parole. Mother began using methamphetamine and alcohol when she was 12. Her longest period of sobriety was between ages 15 and 19 and most recently for seven months.
Additionally, mother testified she had not commenced any of her individual counseling. She also was not visiting with the minors while she was in "relapse" mode.
At the conclusion of the hearing, the juvenile court found that mother had not made substantial progress towards alleviating the conditions that led to removal of the minors from her custody. Reunification services were terminated, and a section 366.26 hearing was set.
On April 2, 2019, mother filed a section 388 petition seeking reinstatement of reunification services. Mother claimed that her "efforts" after the termination of reunification services qualified as changed circumstances. Mother asked for the "opportunity to show that she can demonstrate significant change in behaviors and patterns that would translate to a secure and loving home" for the minors. Mother alleged the reinstatement of reunification services would be in the best interests of the minors but provided no specific reasons.
In support of her section 388 petition, mother attached numerous documents, including her treatment plan for the next 90 days. Her relapse prevention plan also was attached and included staying away from drug dealers and "old places, old people, old things." Mother had attended three of eight anger management sessions, completed 60 days of substance abuse treatment, and her probation had terminated on December 12, 2018. Her domestic violence classes were due to start on April 12, 2019, and consisted of 16 sessions. However, mother's future plans included maintaining a relationship with father.
The juvenile court denied mother's section 388 petition on April 3, 2019, finding that she failed to demonstrate a change of circumstances or that it would be in the best interests of the minors to reinstate reunification services. The juvenile court noted that the minors were detained at 23 and six months of age and were out of mother's care for nearly one year. As of the filing of mother's section 388 petition, mother had a long history of substance abuse with less than six months of "clean time," had not completed anger management sessions, and had not yet engaged in domestic violence counseling. The juvenile court noted that domestic violence and substance abuse issues were the major causes of the dependency case.
The juvenile court's denial of mother's section 388 petition also noted that the "best interests of the children are of paramount consideration" and the "focus is on the needs of the children for permanence and stability rather than the parent's interest in reunification." Of particular note was that mother had failed to address S.T.'s medical needs and they were being addressed in her current placement.
The juvenile court concluded by stating that mother presented no evidence "of a completed reformation—just the mere beginning of reformation. The children have been in a stable and concurrent placement since June 15, 2018. Delaying permanency in this instance would not be in either of the children's best interests."
The section 366.26 report filed on April 8, 2019, noted that the current caregivers of the minors were the prospective adoptive parents. At the April 18, 2019 section 366.26 hearing, the juvenile court terminated both mother's and father's parental rights and set a permanent plan of adoption.
Mother filed a notice of appeal on April 23, 2019. Mother states that she is appealing from the denial of her section 388 petition without a hearing and the termination of her parental rights.
DISCUSSION
Mother contends the juvenile court erred in denying her section 388 petition without an evidentiary hearing because she made a prima facie showing of changed circumstances and that granting the petition would be in the best interests of the minors. Section 388 Petition
Standard of Review
We review the juvenile court's denial of mother's section 388 petition without an evidentiary hearing for abuse of discretion. (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079.) "A petition for modification is 'committed to the sound discretion of the juvenile court, and the trial court's ruling should not be disturbed on appeal unless an abuse of discretion is clearly established.' " (In re A.R. (2015) 235 Cal.App.4th 1102, 1116-1117.) The denial must be upheld unless we can determine from the record that the juvenile court's decision exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, we have no authority to substitute our decision for that of the juvenile court. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)
Analysis
A petition to modify a juvenile court order under section 388 must allege facts showing new evidence or changed circumstances exist and that changing the order will serve the child's best interests. (§ 388, subd. (a)(1)-(2); In re Nolan W. (2009) 45 Cal.4th 1217, 1235.) Courts must liberally construe a section 388 petition in favor of its sufficiency. (In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.).) However, section 388 requires a petitioner to make a prima facie showing of both elements to trigger an evidentiary hearing. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) If, for instance, the parent makes a prima facie showing of changed circumstances, the juvenile court can still deny the petition without an evidentiary hearing if the parent fails to make a prima facie showing that the relief sought would promote the child's best interests. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-190; see In re Elizabeth M. (1997) 52 Cal.App.4th 318, 322-323.)
" 'A "prima facie" showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited.' " (In re Josiah S. (2002) 102 Cal.App.4th 403, 418.) Consequently, section 388 petitions with general, conclusory allegations do not suffice. Otherwise, the decision to grant a hearing on a section 388 petition would be nothing more than a pointless formality. (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) "In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case." (In re Jackson W. (2010) 184 Cal.App.4th 247, 258.)
We conclude that the juvenile court did not abuse its discretion in denying mother's section 388 petition without a hearing.
No Changed Circumstances
To support a section 388 petition, the change in circumstances must be substantial. (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.) To require a hearing on the merits of the petition, a mere showing of "changing circumstances" is insufficient. (In re A.S. (2009) 180 Cal.App.4th 351, 358.)
"Not every change in circumstance can justify modification of a prior order. [Citation.] The change in circumstances must relate to the purpose of the order and be such that the modification of the prior order is appropriate. [Citations.] In other words, the problem that initially brought the child within the dependency system must be removed or ameliorated. [Citations.] The change in circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged order." (In re A.A. (2012) 203 Cal.App.4th 597, 612.)
Mother's efforts at sobriety were too recent to establish that her circumstances had changed and granting the section 388 request to change order was in the minors' best interests. (See In re C.J.W., supra, 157 Cal.App.4th at p. 1081 [parents with extensive drug use history did not show changed circumstances where rehabilitation efforts were only three months old at time of § 366.26 hearing]; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423 [seven months' sobriety does not constitute changed circumstances where parent has history of periods of sobriety and relapse]; In re Kimberly F. (1997) 56 Cal.App.4th at 519, 531, fn. 9 ["It is the nature of addiction that one must be 'clean' for a much longer period than 120 days to show real reform."].)
Assuming arguendo the allegations in mother's petition sufficiently showed her circumstances were changing, this showing was insufficient to require the court to modify its earlier orders. (In re Casey D. (1999) 70 Cal.App.4th 38, 49.) If a parent's circumstances have not changed sufficiently to permit placement of the child with that parent, reopening reunification "does not promote stability for the child or the child's best interests" when the child is otherwise adoptable. (Id. at p. 47.) Mother was not in a position to have custody of the minors; she had not completed substance abuse treatment or domestic violence and anger management courses.
Here, as the juvenile court noted in its order denying mother's section 388 petition, at most mother demonstrated changing, not changed, circumstances.
Not in the Minors' Best Interests
There also was no evidence that granting the section 388 petition was in the best interests of the minors. Parent and child share a fundamental interest in reuniting up to the point at which reunification efforts cease. (In re R.H. (2009) 170 Cal.App.4th 678, 697, overruled on other grounds in John v. Superior Court (2016) 63 Cal.4th 91, 99, fn. 2.) By the time of a section 366.26 hearing to select and implement a child's permanent plan, however, the interests of the parent and the child have diverged. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254.) Therefore, after reunification efforts have terminated, the court's focus shifts from family reunification toward promoting the child's needs for permanency and stability. (Marilyn H., supra, 5 Cal.4th at p. 309.) In fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. (Id. at p. 310.)
It is not enough for a parent to show an incomplete reformation or that he or she is in the process of changing the circumstances which led to the dependency. "After the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point 'the focus shifts to the needs of the child for permanency and stability.' " (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) "A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child." (Ibid.) " 'A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent ... might be able to reunify at some future point, does not promote stability for the child or the child's best interests.' " (In re Mary G. (2007) 151 Cal.App.4th 184, 206.)
Mother's section 388 petition contemplated a delay in permanency for the minors to afford mother yet another opportunity to demonstrate that she could provide a secure and loving home for them. However, given mother's history of substance abuse; her failure to maintain sobriety during the dependency case; her failure to make reunification with her children a priority, as demonstrated by her failure to engage in services in a timely manner; and her failure to complete the components of her case plan nearly one year after the filing of the dependency case establish that granting mother's section 388 petition is not in the best interests of the minors. Mother's reformation was far from complete and she was not in a position to accept custody of the minors.
Our role as a reviewing court is to assess whether the court below committed error based on the record before it, and we do not reweigh evidence or rely on evidence that was not in the court's record at the time it made its order. "[A]n appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration. (See People v. Pearson (1969) 70 Cal.2d 218, 221, fn. 1; People v. Preslie (1977) 70 Cal.App.3d 486, 490.)" (In re James V. (1979) 90 Cal.App.3d 300, 304.) Based on the record before the juvenile court at the time the court ruled on mother's section 388 petition, we find the juvenile court did not abuse its discretion in denying the section 388 petition without an evidentiary hearing because mother failed to make a prima facie showing either of changed circumstances or best interests of the minors. Termination of Parental Rights
Although mother failed to address termination of her parental rights in her opening brief, she did raise the matter in her notice of appeal. Therefore, we briefly note that after reunification services are terminated, " 'the focus shifts to the needs of the child for permanency and stability.' " (In re Celine R. (2003) 31 Cal.4th 45, 52.) A hearing under section 366.26 is held to design and implement a permanent plan for the child. At a section 366.26 hearing, once the juvenile court finds by clear and convincing evidence that the child is likely to be adopted within a reasonable time the court is required to terminate parental rights and select adoption as the permanent plan, unless the parent shows that termination of parental rights would be detrimental to the child under one of several statutory exceptions. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.)
"Under section 366.26, the statutory preference is to terminate parental rights and order the child placed for adoption. (§ 366.26, subd. (b)(1).)" (In re C.B. (2010) 190 Cal.App.4th 102, 121.) Here, the minors had thrived in their current placement and the caregivers were the prospective adoptive parents, who were waiting in the wings for the juvenile court's decision on whether to place the minors for adoption.
CONCLUSION
The order denying the section 388 petition is affirmed. The order terminating parental rights and placing the minors for adoption is affirmed.