Opinion
F077131
12-14-2018
In re B.K.M., a Person Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. V.M. et al., Defendants and Appellants.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant V.M. M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Appellant L.T. John P. Doering, County Counsel, and Carrie M. Stephens, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 509687)
OPINION
APPEAL from an order of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge. Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant V.M. M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Appellant L.T. John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
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INTRODUCTION
V.M. (father), joined by L.T. (mother), appeals the juvenile court's summary denial of father's Welfare and Institutions Code section 388 petition requesting reunification services to be reinstated as to one of his children. Parents argue on appeal the court abused its discretion in determining father had not made a prima facie case of changed circumstances nor that the request would be in the best interests of the child. We disagree and affirm.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
A dependency petition was filed by the Stanislaus County Community Services Agency (agency) on April 26, 2016, alleging that B.K.M. (B.K.), age nine, and B.S.M. (B.S.), age six, came within subdivision (b) of section 300. B.K. was reported to be severely autistic and nonverbal. The agency had received a referral because B.K. arrived at school with soiled diapers, which appeared to have been soiled throughout the night. The school reported that B.K.'s parents were difficult to reach and did not send extra diapers with B.K. to school, and that school staff found it difficult to work with B.K. due to the strong odor of feces and urine. B.K. had a case with the local regional center that was inactive because his parents were not utilizing the services.
This appeal only pertains to B.K.; thus, we will focus on the facts that pertain to him. --------
A social worker responded to B.K.'s school and learned that he had not attended school in three weeks, when the school had advised his parents to take him to a doctor to treat some sores in his mouth. B.K. had been marked absent 62 times that year, with only seven absences being reported as illness. B.K. suffers from seizures and had not seen his neurologist for two years. The parents had not provided the school with an emergency seizure plan for B.K.
The social worker visited the family's home. It was unkept, full of flies, and had a very strong, overpowering odor. The kitchen had minimal food and was overflowing with dirty dishes that appeared to have been there for some time. The children's bedroom was dirty and cluttered, and a blanket had what appeared to be feces on it.
The social worker contacted the parents, who are immigrants. Father tested positive for methamphetamines, amphetamines, MDMA (Ecstasy), and marijuana, but he denied any drug use. It took the parents 20 minutes to locate B.K.'s seizure medication, which B.K. is supposed to take every day. The bottle was nearly full and the prescription had been filled three months prior. B.K.'s diaper was soiled, his clothes were dirty, and he appeared to have a burn on his hand, which father stated was a three-year-old scar.
The social worker encountered a sleeping man at the family's home who appeared to be under the influence of drugs as he did not wake up despite the noisy environment. The backyard was noted to have five or six men living in trailers or outbuildings. Drug paraphernalia was also observed.
The children were placed into protective custody, and the court ordered the children detained on April 27, 2016.
On June 16, 2016, a first amended section 300 petition was filed. In addition to the original allegations, the amended petition made the allegation that the children also came within subdivision (j) of section 300, abuse of siblings, due to previous dependency history involving B.K. and B.S.'s half-siblings.
On July 28, 2016, at the combined jurisdiction and disposition hearing, the juvenile court found by a preponderance of the evidence that the children came within subdivisions (b) and (j) of section 300 and adjudged the children dependents of the court. Reunification services were ordered as to both parents. Father was ordered to complete a clinical assessment and follow all recommendations, complete a parenting education program, complete a substance abuse assessment and follow all recommendations, and participate in random drug testing.
The six-month status review report indicated father failed to attend a substance abuse assessment, and two referrals expired because of this. On August 29, 2016, he refused to submit to a random drug test. He requested a third referral to a substance abuse assessment and eventually attended one on October 11, 2016, at which he tested negative for illicit substances. As a result, there were no recommendations for drug treatment at that time. By the six-month review hearing on March 9, 2017, father's clinical assessment was in progress. Reunification services were continued as to both parents.
The 12-month status review report indicated father completed six parenting education sessions. The person administering the classes to him opined that father's understanding was limited in part because of culture and in part because father felt he did not do anything wrong.
On May 4, 2017, father submitted to a random drug test and tested positive for methamphetamines. He was directed to complete another substance abuse assessment.
As for father's mental health services, father completed several sessions of counseling and underwent a psychological evaluation wherein the evaluator concluded father does not consider that he needs to make any changes to have his children returned to him, does not recognize the special needs of either child, and does not have the capacity for dealing with the special needs of either child. Father was interviewed for approximately 3.5 hours and completed the evaluation on May 10, 2017. The evaluator asked father if he had ever used drugs, and father said no and quickly changed the subject. When asked about giving a positive test, father said someone must have slipped drugs into his beer. Father later admitted to using drugs since he was a teenager.
The evaluator asked father if B.K. had any problems, and father replied that he did not. Father told the evaluator he would do anything to get his son back but was unable to identify any changes he could make for B.K. if B.K. were to come home. The evaluator reported that father clearly did not understand his responsibility in reunification despite a year of interacting with the agency and the court system. Father told the evaluator the problem was that the school had exaggerated and made up stories about B.K. and that father would try to find a new school for B.K. when he returned home.
The evaluator reported that the problems in father's case are the result of a combination of substance abuse and cultural/language barriers. The evaluator concluded that father's "blaming others for his drug problem as well as his children's behavior problems took on a paranoid quality making it very unlikely he can benefit from any educational skill building such as parenting training or counseling both of which would be hampered by his negative attitude and drug dependence."
The evaluator went on to say:
"[B.K.] has a severe autistic condition with seizures and limited verbal ability. Even a family without the problems noted for this family would have a difficult time managing his behavior and dealing with his condition. Successful management would require a highly structured home environment with both parents working as a team to provide a consistent therapeutic setting. While having an outside care provider coming to their home to provide in-home therapeutic guidance could be an option, this would have to be a 24 hour service and this is not feasible. In my opinion, they do not have the capacity for meeting [B.K.'s] care needs and he would be better off in a setting suited to his medical and behavioral requirements. [¶] [Father] does not consider that he needs to make any changes to have his children returned to him. He does not recognize that his son's Autism requires special considerations and, more importantly, is not prepared for dealing with a child whom he considers to not have behavioral or mental health problems. He does not recognize the special needs of either child and if the children are returned to them he has no plans for making any personal or home changes to make this successful. In my opinion, he does not have the capacity for dealing with the special needs of either child and I recommend that reunification [services] be terminated."
As a result of father's substance abuse assessment, he was referred to an intensive outpatient treatment on May 16, 2017. While at the treatment center on July 11, 2017, he tested positive for amphetamines and opiates.
The 12-month status report indicated that B.K. had improved greatly in his current placement, a regional center. He had increased his verbal communication and was still working on being potty trained and how to appropriately engage someone's attention. He required constant supervision because of his lack of safety awareness combined with his constant aggression toward others. The staff of his placement reported that B.K. was a joy to have, and that B.K. would be attending summer camps and activities during the school break.
The 12-month review hearing was held on July 28, 2017, and father testified. He testified that his home was free of hazards and that if the children were returned to him, he would take care of them with his older brother. He further testified that he had been receiving outpatient substance abuse treatment services as of June 29, 2017, and that he went to treatment because he was told to. He explained he tested positive for methamphetamines because someone who used methamphetamines bathed in front of his house, and it got into the water he later drank. There was no questioning regarding B.K.'s special needs.
The court concluded the parents had not made significant progress in resolving the issues that caused the children to be removed and there was not a substantial probability that the children could be returned to the parents' custody within 18 months. Thus, reunification services were terminated as to both parents, and a section 366.26 hearing was set. In making its ruling, the juvenile court noted it was concerned because one of the reasons the children were removed was substance abuse, and father had used methamphetamine recently. The court also noted it had concerns that the parents had not demonstrated they have the ability to provide for the care and needs of their children, "especially with regard to [B.K.], who has very special needs." The court noted it was compelled by the psychological evaluation wherein the evaluator opined that (1) father does not consider he needs to make any changes to have the children returned to him, (2) father does not recognize his son's autism requires special considerations, and more importantly, is not prepared for dealing with a child whom he considers to not have behavioral or mental health problems, and (3) father does not have the capacity for dealing with special needs of either child and recommends termination of reunification services as to father.
On September 22, 2017, father filed a section 388 petition requesting the court change its termination order and reinstate reunification services. Father alleged he had graduated from a substance abuse treatment program, had been sober since May 15, 2017, and had obtained employment working at an auto body shop. He alleged the changed order was in the best interests of the children because: "Both children express a desire to go home at and after each and every visit. They are not placed together and their best chance of being raised as siblings would be in their parents' home. Father believes he is now safe to parent these kids and meet their daily needs."
Attached to father's petition was a discharge plan from his treatment center, dated September 11, 2017. It indicated father had reported 55 days' clean and sober, he is "motivated toward recovery," and his "prognosis is positive if [he] continues to follow through with continued [substance use disorder] recovery support." (Italics omitted.) It also indicated he was being referred to further outpatient treatment.
The juvenile court summarily denied the petition and filed a written order stating:
"Although the court has no reason to disbelieve father's assertion that he has graduated from [substance abuse treatment] and remained clean and sober, there is no prima facie showing that father's request is in the children's best interests. Further, given his lengthy history of substance abuse, there is no evidence that the father will be able to maintain his sobriety for any substantial period. Father claims to have remained sober from May 15, 2017 to the present. However, the [attachment], dated Sept. 11, 2017, indicates father has 55 days sober, which would compute to a clean date of July 18, 2017 and not May 15, 2017.
"The best interests of the children are of paramount consideration when a 388 petition is filed after termination of reunification services. The court's
focus is on the needs of the children for permanence and stability rather than the parent's interest in reunification. The 'escape mechanism' provided by section 388 after reunification efforts have ceased is only available when a parent has completed a reformation before parental rights have been terminated.
"There is no evidence presented by the father of a completed reformation. At best, father's circumstances are changing, but they have not changed. Of even greater importance is the prior finding by [the psychological evaluator] that the father does not have the capacity for dealing with the special needs of either of his children."
The section 366.26 report was filed on November 15, 2017, and recommended that B.K. be continued as a dependent of the court and that a permanent plan be established for him to remain in foster care with a permanent plan of adoption or legal guardianship.
The section 366.26 report detailed the history of contacts between the children and family throughout the reunification period, father and mother visited regularly. They had weekly visits from April 22, 2016, through July 28, 2017, when reunification services were terminated, and monthly visits after that. In the report, the social worker pointed out that although the parents visit consistently, there appears to be a detriment to the children during the visits. The report stated that father had made some progress with his interaction with B.K., but he continues to focus solely on B.S.
As to B.K., the section 366.26 report indicated that B.K. requires a highly structured home environment and his current placement at the regional center has been able to meet B.K.'s medical, emotional, and developmental needs. The current placement provides a routine and structure, which is crucial in the development of B.K. It stated that B.K. is learning a variety of daily living skills and has made great strides in placement, but struggles with the understanding of safety awareness. To that end, B.K. was approved to have a personal aide work with him for 300 hours per month. B.K.'s communication had greatly increased since B.K. was placed in the home and this had facilitated a great bond between B.K., the care providers, and the other children in the home.
B.K. had an individualized education program evaluation, which indicated his primary disability is intellectual disability, and his secondary disability is autism.
Father filed a second section 388 petition on January 10, 2018, eight days before the section 366.26 hearing was to be held. He again requested that the court change its order terminating his reunification services and that services be reinstated. To show changed circumstances, father alleged that he had continued to work on his sobriety. He alleged he had completed an intensive outpatient program on December 12, 2017, and continued to attend Alcoholic Anonymous/Narcotics Anonymous (AA/NA) meetings. He alleged he was working full time and wanted to provide a sober and safe home for his children. Attached to his second petition was an AA/NA attendance record from September 14, 2017, to December 26, 2017, that indicated he attended several AA/NA meetings. Also attached was a letter from father's employer, dated December 11, 2017, indicating father had been employed for eight months.
To show the proposed order was in the best interests of the children, father alleged, "Father is sober, and wishes to reunify with his children. He loves his children and they resided with him full-time prior to removal. He has consistently been at visits with the children. He wishes to care for them and have them returned to his custody."
On January 12, 2018, the juvenile court summarily denied the petition by written order stating, "Father made a similar request on Sept. 22, 2017. Prior reasons for the court's denial continue to exist."
On the final day of the section 366.26 hearing on January 22, 2018, the court found that father had made efforts as it related to his substance abuse issue, but his progress was minimal. Parental rights were terminated as to B.S. As to B.K., the court found B.K. was not adoptable at that time due to his developmental delays. The court found there was no suitable adult willing to accept legal guardianship, and there was no fit and willing relative available to provide placement. The court ordered continuance of foster care with a permanent plan of adoption or legal guardianship. The court found that B.K. would continue to be a dependent of the court and set a postpermanency review for B.K. for July 17, 2018. Father filed a timely notice of appeal, to which mother joins, to the summary denial of father's second section 388 petition.
DISCUSSION
Parents' sole contention on appeal is that the juvenile court erred in summarily denying father's second section 388 petition to reinstate reunification services as to B.K. Parents contend father made the requisite prima facie showings entitling him to a hearing. We disagree.
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); 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, 309-310.) 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 review the juvenile court's summary denial of father's second section 388 petition for abuse of discretion. (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079.) The denial must be upheld unless we can determine from the record that the juvenile court's decisions 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.)
We conclude that the juvenile court did not abuse its discretion in summarily denying father's second section 388 petition. The court's finding that father's period of sobriety did not constitute "changed circumstances" was reasonable. Appellate courts have often held that when a parent has a history of substance abuse, recent relatively brief sobriety constitutes "changing" rather than "changed" circumstances. To support a section 388 petition, the change in circumstances must be substantial. (In re Heraclio A. (1996) 42 Cal.App.4th 569, 577.) At the time father's second petition was filed, he had been sober for approximately six months. Father was approximately 48 years old at the time he filed his second petition and had reported using drugs since he was a teenager. Father's then-recent sobriety reflects "changing," not changed, circumstances. (See e.g., In re Casey D. (1999) 70 Cal.App.4th 38, 49.) "It is the nature of addiction that one must be 'clean' for a much longer period than 120 days to show real reform." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9, italics added.) Father's completion of a drug treatment program and allegation of six months of sobriety, though commendable, is not a substantial change of circumstances.
The court's finding that the proposed order was not in the best interest of the child was also reasonable. 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. (In re 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.) 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. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
To make the best interest showing, father asserted he was sober, the children lived with him prior to removal, he consistently visited, and he loves his children and wishes to have them back. These allegations do not take into account the shift in focus of the proceedings. Father does not attempt to rebut the presumption that continued out-of-home placement was in the best interests of B.K. In the court's ruling on the denial of father's first section 388 petition, it indicated the primary reason it had denied the petition summarily is because the petition did not include an allegation that addressed the psychological evaluator's comments that father did not understand B.K.'s special needs. To make a prima facie showing that the proposed order was in the best interest of B.K. in his second petition, father would have needed to address this point. Though by the time father had filed his second petition, he had achieved approximately four additional months of sobriety and had remained employed, there was no allegation father was prepared even in part to address B.K.'s special needs. Further, B.K. was reported to be making great developmental progress and was bonded to his caretakers and the other children in the placement. The court's holding that the reasons for denying the first petition still existed was not an abuse of discretion.
Father alleges for the first time on appeal the granting of the second section 388 petition was in B.K.'s best interest because he had a positive visit with B.K. on January 11, 2018, during which he demonstrated progress in attending to B.K.'s special needs. At the section 366.26 hearing on January 18, 2018, the juvenile court requested that the visit report be produced, as it was not in the record, in order to determine whether a last visit would be appropriate as to B.S. Upon receipt of the visit report, the juvenile court commended father on the visit. Neither the report nor any evidence of the positive visit was in the record at the time father's second section 388 petition was considered.
Father also alleges for the first time on appeal that the granting of the second section 388 petition was in B.K.'s best interest because B.K. was not found to be adoptable; thus, granting the second petition would not extend the proceedings or delay permanency for B.K. However, at the time the juvenile court considered father's second petition, it had not yet made the finding that B.K. was not adoptable.
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; [citation].)" (In re James V. (1979) 90 Cal.App.3d 300, 304.) We will not take a position either way in regard to whether the January 11 visit report or the finding that B.K. was not adoptable would have affected whether father made a prima facie showing. At the time the juvenile court ruled on father's second section 388 petition, it did not have before it evidence that father had done anything new to recognize his son's special needs. It had before it evidence that B.K. was doing very well in his current placement and had formed a bond with his caregivers and the other children in the center. For the reasons set forth in this opinion, based on the record before the juvenile court at the time father's second section 388 petition was filed, we find the juvenile court did not abuse its discretion in summarily denying the second section 388 petition.
DISPOSITION
The juvenile court's order is affirmed.
/s/_________
DE SANTOS, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
SMITH, J.