Opinion
F080362
10-20-2020
In re H.P., a Person Coming Under the Juvenile Court Law. TUOLUMNE COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. L.P., Defendant and Appellant.
Jessica M. Ronco, under appointment by the Court of Appeal, for Defendant and Appellant. Sarah Carrillo, County Counsel, and Maria Sullivan, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JV8013)
OPINION
THE COURT APPEAL from an order of the Superior Court of Tuolumne County. Donald I. Segerstrom, Jr., Judge. Jessica M. Ronco, under appointment by the Court of Appeal, for Defendant and Appellant. Sarah Carrillo, County Counsel, and Maria Sullivan, Deputy County Counsel, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Franson, J. and Smith, J.
-ooOoo-
L.P. (mother) appeals from the November 5, 2019 order after a Welfare and Institutions Code section 388 petition hearing at which the juvenile court denied her request to increase visitation with her child, H.P., from once a month to once a week. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated. --------
SUMMARY OF FACTS AND PROCEDURE
H.P. came to the attention of the Tuolumne County Department of Social Services (department) at the time of his birth in March of 2019, when mother tested positive for methamphetamine and marijuana. The section 300 petition filed by the department alleged mother had a history of substance abuse which put H.P. at risk of harm and had impacted her ability to care for H.P.'s older half sibling E.T. The petition further alleged that E.T. had been a dependent child due to mother's substance abuse and inability to protect her from domestic violence. E.T.'s dependency was terminated, she was placed with her father, and mother allowed visitation.
A declaration for protective custody was filed, which stated H.P. was in the Neonatal Intensive Care Unit with significant respiratory complications and inability to regulate body temperature. During this time, mother was angry and belligerent on the telephone with the social worker. Detention
The detention report recommended H.P. be detained. Mother had had two child welfare referrals in 2015, which were not investigated, and one in 2016, which was inconclusive. A case had been opened for sibling E.T. in March of 2017, due to domestic violence between mother and E.T.'s father and mother's substance abuse.
Mother reported R.C. to be H.P.'s father but indicated domestic violence in the relationship. Mother denied recent methamphetamine use during pregnancy but admitted to marijuana use. However, H.P.'s blood cord tests were positive for methamphetamine. H.P. was later discharged from the hospital and placed in foster care. Mother did not visit H.P. prior to his release because she failed to set up a visit.
At the detention hearing April 3 and 4, 2019, mother appeared with private counsel. The parties submitted on the reports and the juvenile court found that a prima facie showing had been made that H.P. was a child described by section 300, and he was removed from mother's home. The juvenile court ordered a minimum of two visits per week. Jurisdiction was set for April 23, 2019. Indian Child Welfare Act (ICWA)
On April 9, 2019, mother indicated she may be a member or eligible for membership, or have Indian ancestry, with the Cherokee-Osage Nation tribe. Father indicated no Indian ancestry. The department filed proof of notice to the parents and four recognized Cherokee tribes. Jurisdiction Report and Hearing
The department's report prepared for jurisdiction recommended keeping H.P. in foster care pending disposition. Mother had a criminal history from 2017 to 2018, including vandalism and damage to power lines. R.C. had a criminal history from 2009, including a felony conviction for domestic violence, a DUI, and a misdemeanor conviction for possession of drug paraphernalia. R.C. reported no recent or significant substance abuse and claimed not to know mother was using drugs while pregnant.
The department reported that mother tested positive for marijuana on April 5, 2019, and had a faint negative for methamphetamine, which could indicate some recent residual amount in her system. Mother claimed to have stopped using marijuana the day before, but that she had not used methamphetamine since August of 2018.
In mid-April, mother stated she had started attending a substance abuse group twice a week and met with her doctor, who prescribed medication for her postpartum depression. Mother entered a shelter, the Center for a Non-Violent Community Shelter (CNVC), but left after five days. Mother claimed R.C. was not a sober person and had been emotionally and physically abusive.
Mother missed her two most recent visits: once not providing a urine sample and once oversleeping. Mother claimed it was the department's fault that she used methamphetamine, due to their involvement in her case with E.T. The department denied mother's request to move the visits to the afternoons. During the visits she had, mother was appropriate with H.P., holding and feeding him, and changing his diaper.
The department was evaluating relatives for placement. It found mother's father not an appropriate placement due to his own history of having his children removed from his care. Mother had previously participated in Dependency Drug Court (DCD) and three residential treatment programs, but had not successfully completed any of them.
Mother was present at the April 30, 2019, jurisdiction hearing with private counsel and the matter set for a contested hearing May 10, 2019.
Mother was not present when the hearing was held May 10, 2019, but counsel submitted on her behalf. The juvenile court found mother voluntarily absented herself and it found the allegations in the petition true. A disposition hearing was set for May 21, 2019. Disposition Report
The report prepared for the disposition hearing recommended H.P. be removed from mother's care and that the juvenile court bypass reunification services for mother pursuant to section 361.5, subdivision (b)(13), due to chronic substance abuse and past failure in treatment. Two of the four Indian tribes had responded stating H.P. was not eligible for membership; the other two had not yet responded.
Mother missed eight out of 13 visits with H.P. The missed visits were due to positive or missed drug tests, as well as mother's failure to show up.
Mother reported she was terminated from a substance abuse program because she was unable to get to the meetings. She also reported that she missed the May 10, 2019, hearing as she was arrested on outstanding warrants on her way to court.
Because mother blocked access to her telephone, her social history from her previous case was utilized. In it, mother reported her own father was abusive towards her as a child; she did not have a good relationship with any family members; there was domestic violence in her relationship with E.T.'s father; and she had used marijuana since she was a teenager.
H.P. was healthy and doing well in foster care placement. His withdrawal symptoms had nearly ceased and he was developmentally on track.
The department recommended bypass of reunification services for mother due to her prior resistance to court-ordered drug treatment during E.T.'s dependency. She had failed to complete residential treatment on three prior occasions, she resumed her methamphetamine use while pregnant with H.P., and her drug use continued. Motion to Rehear Jurisdiction
On June 10, 2019, mother's counsel filed a motion requesting a new contested jurisdictional hearing as mother had been arrested while driving to court for the original jurisdiction hearing and therefore did not voluntarily absent herself.
On June 11, 2019, the juvenile court found good cause to set aside the jurisdictional findings and reset the matter for another jurisdictional hearing to be combined with the dispositional hearing on July 19, 2019. First Amended Disposition Report
In the first addendum to the disposition report filed July 19, 2019, the department recommended that the juvenile court find R.C. to be the biological father of H.P. and offer him reunification services.
The department also requested that the juvenile court find that the ICWA did not apply, as two tribes responded that H.P. was not eligible to register for membership and the other two tribes did not respond.
The report stated that mother tested positive for methamphetamine on June 3, 2019, although she claimed to have last used around May 10, 2019. Mother missed a visit on June 17, 2019, because she was late. She tested positive on June 20 and 25, 2019, and admitted she had used methamphetamine the previous week. She missed a visit on June 27, 2019 because she was too late to drug test, and she tested positive on July 2, 2019. When mother called the department about changing her visits, she shouted profanities at the social worker, even though the social worker told her the visits had been changed at mother's request.
Mother and R.C. both attended a Team meeting on July 3, 2019. Mother reported she was attending AA meetings and provided an attendance card for three meetings. R.C. claimed not to be a substance user, but refused to test, or tested positive for alcohol when he did test.
Mother was arrested on July 5, 2019, for possession of fireworks and three outstanding misdemeanor warrants. She later threatened to overdose at CNVC, where she was living, and the staff called the police. Mother tested positive on July 11, 2019, and in all, had seven positive drug tests in June and July of 2019. Jurisdiction and Disposition Hearing
On July 19, 2019, the juvenile court found the allegation of the section 300 petition true and found H.P. came within the definition of subdivisions (b) and (j). As to disposition, the juvenile court found, by clear and convincing evidence that H.P. had to be removed from mother's care and that the ICWA did not apply. It ordered reunification services for R.C., and bypassed reunification services for mother pursuant to section 361.5, subdivision (b)(13). Visits were changed to monthly for mother. A six-month review hearing was set for November 19, 2019. Section 388 Petition
On September 26, 2019, mother filed a section 388 petition requesting visits be changed from once per month to once a week. According to mother, she was now paying for drug testing; attending meetings; starting DDC; building a support group; attending parenting classes; going to Behavioral Health; and seeing a therapist. Mother believed it was in H.P.'s best interests as he wanted to be with her.
Attached to the petition, mother showed she had attended 26 AA meetings from August 29 to September 28, 2019. She provided receipts for five drug tests, three of which were positive for marijuana only.
On September 30, 2019, the juvenile court set a hearing on whether to grant or deny an evidentiary hearing on the petition. The juvenile court appointed counsel for mother. At an interim hearing on October 29, 2019, the department and minor's counsel objected to the section 388 petition. Hearing on the Section 388 Petition
At the section 388 petition hearing November 1, 2019, mother testified that, prior to disposition, she had had visits twice a week, but when they were canceled due to previously scheduled appointments, the department never rescheduled them. Mother acknowledged methamphetamine use prior to disposition, and that she was required to drug test before visits.
Mother testified that, although she had not been provided reunification services, she had enrolled in parenting classes on her own and had been attending them for approximately three weeks. She had referred herself to DDC in early September and was required to attend group meetings once a week and attend a minimum of two AA/NA meetings per week, although she usually attended "about four times a week."
Mother testified she had been attending individual domestic violence counseling sessions where she was living and attending counseling at Behavioral Health since July. She was scheduled to see a therapist at a program the following week. Mother drug tested on her own through Job Care approximately twice a week. She acknowledged occasionally smoking marijuana for her anxiety, but claimed she no longer used methamphetamine.
Mother recently purchased a vehicle, which helped with visitation. Her case involving E.T. closed in October of 2018; she had 50 percent legal custody, no physical custody, but weekly visits.
Mother testified that she had supplies for H.P., including a stroller, car seat, crib, bassinet, diapers, and clothing. She was participating in all of the services on her own and wanted to be a mother to her children. She identified herself as an addict and knew she needed to stay clean and sober to get her life back on track.
Mother acknowledged she had had no contact with the department between July 19 and September. According to mother, she missed her monthly visit with H.P. in August, because her previous counsel told her he would set everything up and she had trouble getting in touch with him.
Mother testified she had tried to get into residential treatment but was not able to. She did not qualify through the criminal justice system and her insurance would not cover it. Instead, she began a case plan on her own. She got the ideas for her current services from her earlier case with E.T., but this time was doing it "on [her] choice" and not the department's way, which was "a little overwhelming."
Mother testified that her last visit with H.P. was on October 1, 2019, that he recognized her, and got fussy when the visit ended. She had had seven visits overall since H.P.'s birth: five prior to disposition and two since.
A social worker testified she had been the social worker for H.P.'s case since September. The department did not believe it would be in H.P.'s best interests to increase visitation since the department was recommending services to R.C. be terminated and the movement of the case was towards permanent placement for H.P. H.P. was bonded and happy in foster care, where he had been since birth. The social worker was concerned that mother did not visit in July, when two or three visits were cancelled due to mother not showing up or not drug testing.
At the close of testimony, mother submitted additional documentary evidence including a safety plan regarding E.T. from mid-October 2019; proof of participation in services at Behavioral Health on July 15, September 13, and October 9 and 11, 2019; proof of participation in various services in a domestic violence program for September and October 2019; and proof of a 14-week Nurturing Parenting group started on October 18, 2019. Mother also provided proof of drug testing on 10 occasions in September and October 2019, showing positive results for marijuana, but no other substances. She also provided verification of having attended approximately 49 AA/NA meetings from August 29 to October 26, 2019.
Mother's counsel argued that mother had shown a change of circumstance and that the increase in visitation would be in H.P.'s best interests. The department and minor's counsel disagreed.
At the continued hearing on November 5, 2019, the juvenile court found mother's circumstances were changing but not changed. It found that mother's substance abuse was long-standing and she had just recently "started to recognize the problems that led to detention of her children." It found her recent sobriety "tenuous" and not changed circumstances to justify a change in the order. It then denied the section 388 petition.
DISCUSSION
On appeal, mother contends the juvenile court erred when it denied her section 388 petition for increased visitation, arguing that it would promote the best interests of H.P. We find no abuse of discretion and affirm. Section 388 Petitions and the Appellate Standard of Review
Section 388, subdivision (a)(1) provides in relevant part: "Any parent or other person having an interest in ... a dependent child of the juvenile court ... 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[.]" At a hearing under section 388, "[t]he burden of proof ... is on the moving party to show by a preponderance of the evidence both that there are changed circumstances or new evidence and that also a change in court order would be in the best interest of the child." (In re D.B. (2013) 217 Cal.App.4th 1080, 1089; In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).)
A ruling on a section 388 petition 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." (Stephanie M., supra, 7 Cal.4th at p. 318.) " ' "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." ' " (Id. at pp. 318-319.) Where the appellant contends the trial court has abused its discretion, the appellant's showing on appeal " 'is wholly insufficient if it presents a state of facts ... which ... merely affords an opportunity for a difference of opinion. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' " (In re Marriage of Varner (1997) 55 Cal.App.4th 128, 138.) "The Court of Appeal is not a second trier of fact[.]" (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1021.) Given the wide latitude afforded to the juvenile court, the denial of a section 388 petition rarely merits reversal as an abuse of discretion. (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)
Mother's task on appeal is difficult, because she bore the burden of proof in the court below. (In re D.B., supra, 217 Cal.App.4th at p. 1089.) Thus, to the extent she challenges the juvenile court's factual findings, "the question becomes whether [mother's] evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.' [Citation.]" (In re I.W. (2009) 180 Cal.App.4th 1517, 1528, disapproved on another ground in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.)
In "determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case." (In re Justice P. (2004) 123 Cal.App.4th 181, 189; see In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.) Visitation
When, as here, reunification services are not provided to one parent pursuant to a bypass provision but are ordered for the other parent, "[t]he court may continue to permit the parent [not receiving services] to visit the child unless it finds that visitation would be detrimental to the child." (§ 361.5, subd. (f).) "[S]ection 361.5, subdivision (f) provides, in substance, that when the court does not order reunification services under subdivision (b)(2) through (16) or subdivision (e)(1), it 'may,' pending the section 366.26 hearing, 'continue to permit the parent to visit the child unless it finds that visitation would be detrimental to the child.' " (In re Korbin Z. (2016) 3 Cal.App.5th 511, 518. fn. 5.) "[V]isitation is not integral to the overall plan when the parent is not participating in the reunification efforts. This reality is reflected in the permissive language of section 361.5, subdivision (f)." (In re J.N. (2006) 138 Cal.App.4th 450, 458-459.) Once the court orders bypass of reunification services at the disposition hearing, it has no obligation to order visitation, particularly if it believes that such visitation would be unsafe for the minors. (Id. at p. 457.) Mother Fails to Show Changed Circumstances and Best Interests
To prevail on her section 388 petition, mother was required to show changed, not merely changing, circumstances. (See In re Casey D. (1999) 70 Cal.App.4th 38, 49 [juvenile court entitled to deny § 388 petition where it found mother's "circumstances were changing, rather than changed"].) To support such a petition, "the change in circumstances must be substantial." (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.) Indeed, "[t]he change of circumstances or new evidence 'must be of such significant nature that it requires a setting aside or modification of the challenged prior order.' [Citation.]" (In re Mickel O. (2011) 197 Cal.App.4th 586, 615.) Last minute changes, even if genuine, do not "automatically tip the scale in the parent's favor." (In re D.R. (2011) 193 Cal.App.4th 1494, 1512.)
In determining whether a legitimate change of circumstances has been achieved, the juvenile court is directed to review the seriousness of the reason for the dependency and the reason the problem was not overcome; the relative strength of the parent-child and child-caregiver bond and the length of time the child has been a dependent; the nature of the change in circumstances; the ease by which the change could be achieved; and the reason the change was not made sooner. (In re Amber M. (2002) 103 Cal.App.4th 681, 685; In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-531.)
Here, from the very beginning of the case, the overriding issue was mother's substance abuse and her inability to care for H.P. as a result. Mother's complete denial of her methamphetamine use, even in the face of drug tests to the contrary, was evident in her previous dependency case and remained unabated for the four months between H.P.'s birth and disposition. During that time period, she visited H.P. only five times, although she was given twice weekly visitation. By the time of the hearing on the section 388 petition, she had visited him only a total of seven times, again missing the monthly scheduled visits. H.P. had spent his entire life in foster care and was doing well and was bonded to his caregivers.
Mother's progress towards alleviating her substance abuse issue was in the very beginning stages of what would be a very long process. She had only admitted to being an addict in the past two months, and was attempting to address the issue on her own, as the prescribed ways were "overwhelming" to her. While mother appeared to have abstained from methamphetamine for two months, she was still self-medicating with marijuana for her anxiety. We agree that mother has only shown that her circumstances are changing and not changed. (In re Casey D., supra, 70 Cal.App.4th at p. 49.)
We also agree that increased visitation would not be in H.P.'s best interests. While mother argues that increased visitation might allow her to forestall termination of parental rights by arguing the beneficial parent-child relationship exception, this argument does not promote the best interests of H.P., who has had no relationship with mother, but instead only promotes mother's own perceived best interest for herself. The primary focus of a section 388 petition brought by a person, such as mother, who has not received reunification services, must be the bests interests of the child, not mother's best interests. (See, e.g., In re Ramone R. (2005) 132 Cal.App.4th 1339, 1348; see also In re J.N., supra, 138 Cal.App.4th at p. 460.) Thus, "[a]lthough this reality may be an unfortunate by-product of the court's order, it does not provide a legitimate basis for attacking it." (In re J.N., supra, 138 Cal.App.4th at p. 460.)
We find no abuse of discretion on the part of the juvenile court in denying mother's section 388 petition.
DISPOSITION
The order of the juvenile court is affirmed.