In re A.M.
Filed 2/24/12 In re
A.M. CA3
NOT
TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Yolo)
----
In re A.M., a Person Coming
Under the Juvenile Court Law.
YOLO COUNTY DEPARTMENT OF
EMPLOYMENT AND SOCIAL SERVICES,
Plaintiff and Respondent,
v.
M.W. et al.,
Defendants and Appellants.
C067143
(Super.
Ct. No. JV08500)
Mishell W., mother
of minor A.M., appeals from orders of the juvenile court denying her petition
for modification to reinstate reunification
services. (Welf. & Inst. Code,
§§ 388, 395.) Mother contends the
juvenile court abused its discretion in finding that it lacked authority to
reinstate services after the statutory period for reunification services had
expired. We agree and shall
reverse.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2008, minor was detained from
his parents at age 11 months due to mother’s substance abuse, mental health
issues, criminal behavior and failure to protect minor from the father, who was
arrested on a warrant. Mother claimed
Indian ancestry and it was determined that she was a member of the Pit
River Tribe of Burney,
the tribe.
The juvenile court sustained an amended
petition in December 2008 and later ordered mother to participate in
reunification services. The court
continued services for mother at the six-month review hearing in August 2009
and set a
12-month
review hearing for October 2009.
The social worker’s review report
recommended termination of services. The
social worker characterized mother’s mental health as “precarious at best”
because she was not able to maintain any significant period of stability on
medication. Mother’s success in
substance abuse treatment paralleled her periods of mental health
stability. Mother tested positive for
marijuana in August 2009. Mother visited
minor regularly and visits were generally good with interactive play. The social worker recommended termination of
services because mother was only recently becoming stable, attending
counseling and participating in substance abuse treatment. Further, based on her history, mother was
unlikely to sustain a significant period of stability. At the continued review hearing in December
2009, the court ordered an additional six months of services and increased visits.
The next review report again recommended
termination of services for the parents.
Mother reported she was pregnant and due in September 2010. Minor had been in the same placement for 16
months. Mother was twice enrolled in,
but did not complete, residential treatment, was in an outpatient program, and
now felt she needed a higher level of treatment (although she previously stated
she did not like residential treatment).
Mother was discharged from her collateral programs when she entered
residential treatment, so she could not complete other aspects of her
plan. There were also concerns about
mother’s compliance with her medication regime.
Mother had twice-weekly visits with minor and interacted
appropriately. There were some concerns
about mother’s ability to parent minor in a community setting since the visit
supervisor had to intervene and suggest ways for mother to interact with
minor. The foster parents reported that,
following the increase in visits, minor’s post-visit behaviors escalated. Mother could not demonstrate her ability to
live in the community and maintain her recovery and, despite domestic violence
classes, had resumed a relationship with the father. After 18 months of services, mother was still
unstable and unable to meet minor’s needs.
The juvenile court set a contested 18-month
review hearing in April 2010. The matter
was heard over several days and, in May 2010, the court terminated services and
set a section 366.26 hearing.
The report prepared for the section 366.26
hearing recommended termination of parental rights as minor was adoptable. Minor, then three years old, was in good
health and developmentally on target. He
had no significant mental or emotional issues beyond some shyness. Mother’s visits had been decreased to twice a
month and the caretakers reported that reducing the frequency of mother’s
visits seemed to help minor’s behavioral issues. Minor had been in his current placement
nearly two years and his caretakers expressed a strong desire to adopt
him. The report recommended termination
of parental rights and a permanent plan of adoption. The court set a contested section 366.26
hearing for November 2010.
Mother filed a petition for modification
prior to the section 366.26 hearing, seeking reinstatement of reunification
services. She alleged changed
circumstances because she had been clean and sober for a year, maintained
attendance at A.A. meetings, and now had her infant daughter in her care. She had a temporary restraining order in
place against the father and was avoiding contact with him. She was currently attending counseling,
classes at Birth and Beyond, and was to begin a Native American domestic
violence program. She was compliant with
her medications and had stabilized emotionally.
She had stable housing in her own residence. She alleged she had a close and loving
relationship with minor. The court set
the petition for hearing in November 2010.
At the hearing, following the presentation
of evidence in the form of multiple witnesses, mother requested an additional
six months of services. The court
indicated it would grant additional services if it were legally possible,
citing mother’s increased support and favorable housing situation, but
expressed concern that it lacked the authority to extend services past the
18-month statutory limit. The court
permitted the parties to brief the issue.
When the hearing resumed in December 2010, the court denied the petition
for modification, concluding there was no legal authority to extend services past
the 18-month time limit described in section 361.5, subdivision (a)(3) and
section 366.26.
The court then considered the section
366.26 issues. The parties
clarified that the customs of the Pit River Tribe dictated that if parental
rights were terminated, the minor would lose his membership in the tribe if not
adopted by a tribal member. The court
declined to terminate parental rights, found guardianship was in the minor’s
best interests, and set visitation for mother at once a month.
DISCUSSION
Mother contends the juvenile court abused
its discretion in denying her section 388 petition for modification, because it
erroneously concluded it lacked the authority to grant the petition if the
consequence were to extend services beyond the statutory maximum of 18 months.
A parent may bring a petition for
modification of any order of the juvenile court pursuant to section 388 based
on new evidence or a showing of changed circumstances.
Hunter S. (2006) 142 Cal.App.4th 1497, 1506 (Hunter S.).) Each stage in
the dependency process serves a purpose, however; all are part of the overall
process and no stage can be considered in a vacuum. (Hunter
S., supra, 142 Cal.App.4th at p. 1507.)
When considering the constitutionality of
section 366.26, the California Supreme Court in In re Marilyn H. (1993) 5 Cal.4th 295, recognized the
importance of section 388 in satisfying due process and fundamental fairness. Our Supreme Court stated that “throughout the
reunification period and thereafter,
the parent has the continuing right to petition the court for a modification of
any of its orders based upon changed
circumstances or new evidence pursuant to section 388.” (In re
Marilyn H., supra, 5 Cal.4th at pp. 308-309, emphasis added.) Thus, section 388 provides an “escape
mechanism” to allow the juvenile court to consider new information prior to
terminating parental rights. (
“Marilyn
H. makes clear that reunification pursuant to section 388 must remain a
viable possibility even after the formal termination of reunification services
in a 12- or 18-month review if there is, as the court put it, a ‘legitimate
change of circumstances.’” (
56 Cal.App.4th 519, 529, internal cites omitted, [abuse of discretion in
denying a 388 petition brought after the 18-month review hearing].) The section 388 petition is “the final
opportunity available to a parent to demonstrate the possibility circumstances
may have changed enough to warrant further reconsideration of
reunification.” (Hunter S., supra,
142 Cal.App.4th at p. 1508 [reversing denial of a 388 petition
brought after services were terminated and the minor was in guardianship
pending adoption].)
It is clear from the foregoing authorities
that the juvenile court has the authority to entertain a petition for
modification pursuant to section 388 after termination of reunification efforts
at an 18-month review hearing.
Determination of a petition to modify is
committed to the sound discretion of the juvenile court and, absent a showing
of a clear abuse of discretion, the decision of the juvenile court must be
upheld. (In re Stephanie M.
(1994) 7 Cal.4th 295, 318-319; In re Robert L. (1993)
21 Cal.App.4th 1057, 1067.) Here,
however, the court, believing it lacked authority
to grant the reinstatement of services sought by mother’s section 388
petition
due to the number of months mother had already been extended services, failed
to exercise its discretion to determine the merit or lack thereof of the
petition. Failure to exercise
discretion is an abuse of discretion. (
41 Cal.4th 825, 847-848; Kim v.
Euromotors West/The Auto Gallery (2007) 149 Cal.App.4th 170, 176-177
[judge incorrectly believed there could be no prevailing party when the parties
agree to pretrial settlement and
failed to exercise discretion to determine if plaintiff prevailed];
116 Cal.App.4th 84, 99 [judge did not believe he had discretion to dismiss
misdemeanor under Penal Code section 1385 and did not weigh the relevant
factors].)
Because the juvenile court abused its
discretion by failing to exercise it in deciding to grant or deny the section
388 petition, we must reverse. In
conducting a new hearing on the section 388 petition, the juvenile court must
carefully consider the current
circumstances of both mother and minor in determining and considering the facts
supporting the findings necessary to grant mother’s modification
petition--changed circumstances and best interests of the child.
DISPOSITION
The order of the
juvenile court denying mother’s petition for modification is reversed and the
case remanded for a new hearing. At the
hearing, the court must consider both minor’s and mother’s current
circumstances in determining whether both
criteria necessary to grant a
modification of its prior order exist.
DUARTE , J.
We concur:
BLEASE , Acting P. J.
HULL , J.
name="_ftn1" title="">[1] Further undesignated statutory references are
to the Welfare and Institutions Code.
name="_ftn2" title="">[2] Section 388 provides, in pertinent part: “Any parent . . . may, upon grounds
of change of circumstance or new evidence, petition the court in the same
action in which the child was found to be a dependent child of the juvenile
court . . . for a hearing to change, modify, or set aside
any order of the court previously made or to terminate the jurisdiction of the
court. . . . [¶] If it appears that the best interests of the
child may be promoted by the proposed change of order, recognition of a sibling
relationship, termination of jurisdiction, or clear and convincing evidence
supports revocation or termination of court-ordered reunification services, the
court shall order that a hearing be held . . . .”
