In re A.M.

Filed 2/19/10 In re A.M. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Marsha Slough, Judge. Affirmed.

Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, County Counsel, and Dawn M. Messer, Deputy County Counsel, for Plaintiff and Respondent.

Appellant R.M. (mother) appeals from the juvenile courts denial of her Welfare and Institutions Code^[1]section 388 petition regarding her children, C.F., K.F., M.F., and A.V. (the children). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On October 1, 2007, the San Bernardino County Children and Family Services (CFS) filed section 300 petitions on behalf of the children. At that time, C.F. was 10 years old, K.F. was 7 years old, M.F. was 5 years old, and A.V. was one month old. The petition alleged that the children came within section 300, subdivisions (b) (failure to protect), and (g) (no provision for support). Specifically, the petition alleged that mother suffered from a substance abuse problem and was arrested on September 27, 2007, for possession and sales of drugs, and child endangerment. Mother admitted using illegal drugs two days prior to her arrest.^[2]

According to the detention report, the police found methamphetamine, chemicals used to cut the methamphetamine, drug scales, baggies, and other drug paraphernalia in mothers home. After being arrested, mother admitted she was selling drugs to supplement her income in order to provide for her children. She was incarcerated, and her release date was unknown at the time the detention report was written.

The detention hearing was held on October 2, 2007. The court detained the children in foster care. The court ordered reunification services pending further hearing. The court also ordered supervised visitation, to be directed by the department.

Jurisdiction/disposition Report and Hearing

The social worker filed a jurisdiction/disposition report on October 18, 2007, recommending that reunification services be provided to mother. Mother informed the social worker that she was released from jail on October 9, 2007. She said that she was being evicted from her apartment, was very stressed out, and had used methamphetamine since her release from jail. Mother tested positive for methamphetamine on October 12, 2007. The social worker recommended a case plan, which included the requirements that mother participate in a domestic violence program, a parenting education program, a 12-step program, and a six-month outpatient substance abuse program. It also required mother to participate in substance abuse testing.

In an addendum report filed on November 20, 2007, the social worker reported that mother again tested positive for methamphetamine on November 8, 2007. Mother acknowledged that she was unable to remain drug free on an outpatient basis, and, thus, she was seeking inpatient treatment.

At a pretrial settlement conference held on January 3, 2008, the court found that the children came within section 300, subdivisions (b) and (g), declared them dependents of the court, and ordered mother to participate in reunification services.

Six-month Status Review

The social worker filed a six-month status review report on June 23, 2008. Mother had attended visits but struggled to complete any of her case plan responsibilities. Her progress was minimal. She was referred to substance abuse treatment on October 12, 2007, November 19, 2007, and March 19, 2008. She was discontinued from one program for nonattendance and noncompliance. She was homeless and would live with anyone who would take her in. The social worker recommended that reunification services continue to be provided, although she acknowledged that mother would probably not reunify with the children in the allotted time frame.

A contested six-month review hearing was held on July 24, 2008. The court continued the children as dependents and ordered reunification services to continue.

12-month Status Review

The social worker filed a 12-month status review report on January 15, 2009. The social worker recommended that a section 366.26 hearing be set, and recommended adoption as the permanent plan for K.F. M.F., and A.V. She recommended guardianship as the permanent plan for C.F. Mother moved to San Diego in August 2008 and enrolled in an outpatient substance abuse program on or around August 12, 2008. Mothers counselor reported that mother was supposed to attend the program three times per week. Mother was not attending consistently. She went to three out of 12 meetings in October, 10 out of 12 days in November, and 11 out of 15 days in December. As to visitation, mother had missed 17 visits out of 52 weeks in 2008.

A 12-month review hearing was held on January 26, 2009. The matter was set for a contested hearing.

The social worker then filed an addendum report on March 20, 2009, and continued to recommend that reunification services be terminated and a section 366.26 hearing be set. The social worker reported that mother admitted she had relapsed on methamphetamine and needed help getting into an inpatient treatment program. Mother said the methamphetamine was offered to her at a party and she could not control herself. The social worker made an intake appointment for mother at St. John of God, and mother made an appointment at another facility. The social worker opined that mothers progress on her case plan had been moderate up to this point, but now her prognosis was poor due to her relapse. Furthermore, mother had still failed to obtain a stable and suitable residence for herself and her children.

A contested 12-month review hearing was held on April 9, 2009. The court adopted the social workers findings, terminated reunification services, and set a section 366.26 hearing.

Section 366.26 Report and Adoption Assessment

The social worker filed a section 366.26 hearing report on July 24, 2009, and recommended that mothers parental rights be terminated. The social worker reported that the children had been in two foster homes. K.F., M.F., and A.V. were in the home of Mr. and Mrs. S., and C.F. was in the home of Mr. and Mrs. K. The social worker reported that the foster parents of C.F. were committed to providing a stable and permanent home for him under a legal guardianship. C.F. was doing well in their home and expressed his desire for the foster parents to become his guardians. He still wanted to remain in contact with his biological family.

The social worker reported that the childrens caregivers and other social workers had noticed a change in the childrens behavior after visits with mother. C.F., K.F., and M.F. became quiet and moody. K.F. had been observed to have nightmares. The social worker noted this conduct seemed to occur each week after visits.

The social worker specifically reported that K.F. had been having difficulty dealing with his emotions. He often acted out after visits with mother and cried before visits, begging not to go. He stated that he did not want to visit with mother anymore. He asked to be excused from all future visits, except the last one. He said he did not want to visit with her anymore because he was afraid of her.

Additionally, the social worker reported that A.V., M.F., and K.F. had lived with the S. foster family since December 26, 2007. They had developed a significant attachment to Mr. and Mrs. S. and considered them as their parental figures. They were progressing well in the S. home. Mr. and Mrs. S. were willing, able, and eager to meet the needs of A.V., M.F., and K.F. on a permanent basis. The social worker opined that they were strong, stable, nurturing, honest, and dependable.

Section 388

On August 7, 2009, mother filed a section 388 petition requesting the court to return the children to her care under a plan of family maintenance. In the alternative, mother requested the court to reinstate reunification services and liberalize visitation to include unsupervised and overnight visitation. As to changed circumstances, mother stated that, since the court terminated her reunification services, she had completed her case plan. She alleged that she entered an inpatient treatment program at New House on April 27, 2009, and completed it on July 25, 2009. She had also regularly attended 12-step meetings. Since completing the inpatient program, she had moved into a transitional living home where she was required to maintain her sobriety and where she lived with two other women. She stated that if the children were returned to her, she would receive her own two-bedroom apartment. As to best interests of the children, mother alleged that the children were bonded with her, and she was stable and able to care for them.

In response, the social worker filed an addendum report stating that mother had already received over 18 months of services, and she did not complete her case plan in a timely manner. Mother had been sober from drugs less than six months at that time and was currently living in a sober living apartment and attending several groups to remain sober. However, the home and the treatment were temporarynot to exceed six months. Thus, mother could relapse at any time and lose her housing.

Sections 388 and 366.26 Hearing

The court held a combined hearing pursuant to sections 388 and 366.26 on September 1, 2009. Regarding the section 388 petition, mother testified on her own behalf. She admitted that by the time her services were terminated, she had not completed any component of her case plan. However, since her services were terminated, she had completed an inpatient program, a parenting program, and an anger management program. Mother said she began abusing illegal substances when she was 25 years old, and she was 32 years old at the time of the hearing. Mother said in those seven years she had had one period of sobriety for eight months. It was the eight months prior to her relapse in March 2009. When asked what was different now than when she had relapsed, mother said she had learned a lot about herself and that she did not need to use drugs to make herself happy. When asked why she thought her section 388 petition should not be denied, she responded that she felt she could be a better mom to her kids and that she was trying. Mother admitted her seven-year history of methamphetamine addiction was not in remission, and that was why she continued to go to her meetings.

After considering mothers petition and attachments submitted, as well as her testimony, the court acknowledged that mother loved her children, and that she was in the process of getting it straight. The court added: We went for over 18 months, mother made very little progress whatsoever. Unfortunately, at this time, it is too little and it is too late. These childrens stability cannot be predicated on the hope that mother gets it right this time . . . . The court denied the section 388 petition. The court further found that the three children were adoptable, terminated parental rights, and determined that adoption was the permanent plan. As to C.F., the court continued the hearing so that the guardianship papers could be in court in order to address that issue.

ANALYSIS

The Court Properly Denied Mothers Section 388 Petition

Mother argues that the juvenile court abused its discretion in denying her section 388 petition. She believes we should not conclude that just because she suffered a one-time relapse, she had not been clean long enough to be able to provide a safe and sober home for her children. She further argues it was in the best interests of the children to return to her care, or reinstate her services. Specifically, she claims that she had an emotional bond with C.F., and he wanted to return to her home. She also asserts the three other children also had a close bond with her, as demonstrated at the visits. We conclude that the court properly denied mothers petition.

B. The Court Properly Denied the Section 388 Petition

A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new or changed circumstances exist, and (2) the proposed change would promote the best interest of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 316-317.) A section 388 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 Stephanie M., supra, at p. 318.) 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 [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interest of the child. [Citation.] 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 interest of the child. (Id. at p. 317.)

The juvenile court here did not abuse its discretion in denying mothers section 388 petition, as she failed to show changed circumstances or that a changed order would be in the childrens best interests. As to changed circumstances, mother alleged that she had completed a three-month inpatient treatment program at New House on July 25, 2009. Mother also regularly attended 12-step meetings and moved into a transitional living home. However, she admitted at the hearing that she had abused illegal substances for seven years. She also admitted that she recently relapsed in March 2009 after having been sober for only eight months. She stated she ran into some people, and [] wasnt strong enough to say no. As of the September 1, 2009, hearing, she had been sober for only six months since her relapse, and she had just completed her inpatient program about one month prior. Significantly, mother admitted that her seven-year history of methamphetamine addiction was not in remission, and that was why she continued to go to her meetings. Mother, at best, was in the process of changing, but her circumstances had not changed. Moreover, as the court pointed out, the stability of the children could not be predicated on the hope that mother [got] it right this time. Consequently, mothers petition simply failed to demonstrate the requisite changed circumstances.

Additionally, mother was unable to demonstrate that a changed order was in the best interests of the children. [A] primary consideration in determining the childs best interest is the goal of assuring stability and continuity. [Citation.] (In re Stephanie M., supra, 7 Cal.4th at p. 317.) Mother merely alleged that the children were bonded with her and that she was stable and able to care for them. However, she was living in a transitional living home where she was required to maintain sobriety in order to continue living there. Thus, if mother relapsed again, she would lose her housing. Moreover, mother produced no evidence that she was employed. The challenge of remaining sober, obtaining employment, and learning to care for four children all at once would have been a lot for mother to handle.

We further note that A.V., M.F., and K.F. had lived with the S. foster family for nearly two years, at the time of the hearing. They were attached to Mr. and Mrs. S. and considered them as their parental figures. They were progressing well in the S. home. Mr. and Mrs. S. were willing, able, and eager to meet the needs of A.V., M.F., and K.F. on a permanent basis. C.F. was also doing well in his placement with his foster family. He wanted to stay with the family, and the family was committed to providing a stable home for him through adulthood.

We conclude that the juvenile court evaluated the evidence, determined that mother had not carried her burden of proof, and properly denied the section 388 petition.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

J.

We concur:

RAMIREZ

P.J.

MCKINSTER

J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] The petitions also contained allegations regarding A.V.s father, R.C., and the father of C.F., K.F., and M.F., C.F. However, R.C. and C.F. are not parties to this appeal.