In re D.D.
Filed 6/21/13 In re D.D. 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
(Butte)
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>
In re the Juvenile Court Law. | |
BUTTE COUNTY DEPARTMENT OF EMPLOYMENT AND SOCIAL SERVICES, Plaintiff and Respondent, v. JENNIFER D., Defendant and Appellant. | C072125 (Super. Ct. Nos. J35568, J35569) |
Jennifer D.
(mother) appeals from the juvenile court’s order denying her petition to
reinstate reunification services as
to minors D. D. and P. D. (Welf. &
Inst. Code,
title="">[1]
§ 388.) We affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
On November 10, 2010, the
Department of Employment and Social Services (the department) filed section 300
petitions as to
age 9, and P. D., age 10. The petitions,
as later amended, alleged: (1) Mother
was found unconscious and transported to the hospital. Law enforcement officers determined (though
mother denied it) that she had attempted suicide by overdosing on
methamphetamine, prescription medications, opiates, and marijuana, and had left
a note. (2) Mother had left the minors in the care of her
new husband, who had an extensive criminal history and no legal standing to
care for the minors.
name="_ftnref2" title="">[2] (3) Mother told the social worker she did not
think what she had done was wrong and did not see what the “big deal†was.
The
detention report alleged that mother had multiple referrals to Child Protective
Services (CPS) in 2000 and 2001 based on alleged drug use and general
neglect. The minors’ older sister, K.
D., was reported as a possible subject for detention, but she was not at the
family home when her brothers were detained and her whereabouts were unknown.
According
to a jurisdiction report dated January
26, 2011, since the minors’ detention mother had failed to
participate in offered services, had continued to test positive for
methamphetamine and ecstasy, and had missed drug tests. Robert L., mother’s husband according to the
section 300 petitions, was actually her boyfriend. He had offered to care for the minors, but
was told he had no legal rights to them.
The
jurisdiction/disposition report, dated March
10, 2011, recommended continued foster care for the minors and
reunification services for mother, although mother had made minimal progress so
far. She acknowledged a substance abuse
problem and said she would participate in inpatient rehabilitation, but had not
used the services available to her and had tested positive for drugs as
recently as February 25, 2011. Her substance abuse and depression severely
impacted her ability to benefit from services.
Mother’s
boyfriend, Robert L., had a criminal history dating back 33 years, including
drug and child cruelty offenses.
name="_ftnref4" title="">[4] He was awaiting sentencing on his latest
convictions. Mother recognized that she
might have to put her relationship with him aside to focus on recovery.
Mother had
supervised visitation with the minors once a week. She had missed or been late for numerous
visits. The location of visits had been
changed because Robert L. was making unauthorized contacts with the
minors. Mother insisted he was an
important part of their lives.
The minors
were doing well in school and had the support of extended family members. They wanted to return to mother’s care, but
had difficulty recognizing the depths of her addiction and seemed to perceive
her inconsistent visitation as abandonment.
At the
jurisdiction/disposition hearing on March
10, 2011, the juvenile court ordered continued foster care for the
minors and reunification services for mother.
The court found her progress to date poor, due to inconsistent
participation in services and visitation and continued use of illegal
substances.
The
six-month status review report recommended granting further services to mother,
though her participation in services was “minimal.†Her visitation, though more consistent, was
still supervised because of persistent lateness, failure to test for drugs, and
lack of progress in services. The visits
went well, but she related to the minors more as a peer than as a parent.
Mother
became homeless around June 2011. She
and Robert L. stayed in motels or camped.
Neither was gainfully employed.
She felt that her lack of housing and income impeded her participation
in services.
Since
mother’s relationship with Robert L. began, she lost custody of the minors,
succumbed to addiction again, became estranged from her eldest daughters and
extended family members, lost her job and home, and developed “severe health
complications that are exacerbated by what appears to be her continued drug
abuse.†She periodically acknowledged
that she needed to focus on her health and it might be better if she and Robert
L. separated.
On the
other hand, mother had previously maintained sobriety for eight or nine years,
given the minors adequate housing, structure, and guidance, and worked at
various jobs, including some in “the social services field.†She had expressed difficulty “facing service
providers as a recipient instead of as one of their peers/co-workers.†She and the minors clearly loved each other,
and they wanted her to get better and to be a parent to them again.
The minors
were doing well in foster care. They had
formed appropriate bonds with their foster parents and looked to them for
support and guidance. At the six-month
review hearing, the juvenile court ordered continued services to mother. The 12-month status review report recommended
terminating mother’s services and setting a section 366.26 hearing.
Mother had
been mostly out of contact with the department while living a transient life
with Robert L., even after she reported on October 11, 2011, that he had become violent with her,
sabotaged her visitation, and caused her to fear for her safety. She knew he was wanted on felony arrest
warrants and had fled the police three times since September 22, 2011. She was observed in his company or in the
vicinity on all three occasions, until he was captured around November 16, 2011. The next day, she entered a women’s shelter.
Even after
mother entered the shelter, her attendance at services was spotty or
undocumented. Visitation had resumed and
had taken place weekly, supervised, since November 29, 2011.
Mother still did not have housing suitable for the minors.
It had
taken mother 12 months to recognize the destructive pattern of domestic
violence in her relationship with Robert L.
Her progress had not been sufficient to return the minors to her
care.
The minors,
who had been in their foster home for 14 months, had adjusted very well and had
formed appropriate attachments there. An
adoptions referral had been completed and the case had been assigned to an
adoptions specialist.
Before the
12-month hearing, mother filed exhibits, including 12-step program attendance
logs, certificates of completion from Stepping Stones (a substance abuse
program) and Counseling Solutions (parent support group), a support letter from
a Narcotics Anonymous member, a letter from a therapist saying that mother had
begun seeing him voluntarily, and a referral to
At the
contested 12-month review hearing, after hearing testimony from mother and
receiving her exhibits into evidence, the juvenile court terminated her
services and set a section 366.26 hearing.
The court found by clear and convincing evidence that mother’s progress
had been poor and there was no substantial probability the minors could be
returned to her care by the 18-month review hearing.
On June 27, 2012, mother filed a section
388 petition seeking the reinstatement of reunification services and increased
visitation. The petition alleged that
since the termination of her services mother had stayed sober and sought out
random drug testing, maintained regular attendance at 12-step meetings,
continued to participate voluntarily in Stepping Stones, met consistently with
her private therapist to work on codependency and addiction, met with her
social worker to try to alleviate the department’s concerns, and completed all
available parenting classes.
Furthermore, Robert L., incarcerated since November 2011, was about to
be sentenced to prison. In counseling,
mother continued to address the negative impact her relationship with him had
had on the minors, and she believed therapeutic visits with them would be
helpful on this issue.
On July 9,
2012, mother filed an amended section 388 petition, alleging in addition that
she had obtained stable housing and had enrolled in and begun attending Butte
College.
The
juvenile court scheduled the amended section 388 petition to be heard along
with the section 366.26 proceeding, but the petition was heard alone on August
23, 2012, because the section 366.26 proceeding had to be continued. Mother and the minors’ court appointed
special advocates testified.
Mother
testified as follows:
She had
been sober since November 10, 2011. She
tried to attend at least two Narcotics Anonymous meetings a week, while also
going to school; when not in school, she would go to a meeting almost every
day. She attended church and a
church-based program called Celebrate Recovery.
She had obtained a new sponsor in March or April 2012 (because the old
one had not been able to work with her), met with her weekly, and did “step
work†with her. She had done five drug
tests after her services were terminated; all were negative.
Mother had
also done “a lot of AA†because it fit into her schedule when she was in
Stepping Stones. She did Stepping Stones
from the end of November 2011 until June 9, 2012, when she stopped
attending because it conflicted with her school schedule.
quitting Stepping Stones and had followed through with it.
To deal
with her health problems after she got sober, she began seeing her physician at
least once a month. She also saw a
cardiologist every two months, and the heart condition she had developed the
previous year was now much improved.
Through her physician, she requested and obtained a “tele-site
appointment†with a psychologist.
Mother had
no current untreated mental health issues.
She sometimes felt “mad†or “sad†due to her situation, but had no
diagnosis. Her physician prescribed
“Lamic[t]al†three months ago to deal with these emotions. She took no other medication except for her
blood pressure. She was not seeing
anyone for individual therapy because her school schedule did not leave time,
but she was looking into trying to see someone at the women’s shelter where she
had lived until May 1, 2012. She was
presently seeing a counselor there on a weekly basis, talking about adjustment
problems and relationships.
When mother
left the shelter, she moved into an apartment.
She had a month-to-month lease, but believed she could stay “as long
[as] the building is standing†because she had known the manager and the
manager’s children for a long time and the manager wanted to help her
reestablish her credit and rental history.
Mother had
stopped seeing Robert L. She last
visited him in April 2012 and told him they could not continue their
relationship. When his son died in June,
she spoke to him and gave him support about that. But she had asked him to “parole to some
other county which is down south somewhere†when he finished serving his term.
After her
services were terminated, mother attended three different parenting classes,
one an eight-week program and the others either six or eight weeks.
If her
services were reinstated, she would be willing to do anything prescribed. She had looked into what was available at her
campus (where she now went four days a week), and she knew the options offered
by Butte County.
Being able
to discuss with the minors their feelings about what had happened would be
really important, because they had not had that opportunity: her requests for therapeutic sessions with
them had been denied, despite their counselor’s support for the idea.
department discretion to provide therapeutic counseling, it had not done so;
she would like a court order mandating the department to do so, even if her
services were not reinstated.
Visitation
had been reduced as of April or May 2012 from weekly to monthly. She had received additional brief visits on
mother’s day and on the day P. D. graduated from sixth grade. She understood the protocol about what could
and could not be said during visits, but felt frustrated that she could not
tell the minors she was doing well; she also wondered how they could believe
that she was doing well when she was allowed to see them only once a
month. Nevertheless, the visits were
“always greatâ€; she had “a really good bond†with the minors and always brought
things for them to do. She would like
visits to be increased to at least once a week, if possible by participating in
the minors’ activities (such as attending P. D.’s football games).
Mother did
not get to talk much with the minors about the foster parents, but she felt
that they enjoyed spending time with the foster father because they had not had
an adult male presence in their lives
for 10 years. She would “absolutelyâ€
support the minors’ relationship with the foster parents, even if the minors
were returned to her custody.
Amanda
McNulty, D. D.’s court appointed special advocate, testified that therapeutic
counseling would not be in D. D’s best interest at this time. McNulty thought he was not emotionally ready
to express his feelings toward mother and she might not be receptive to what he
would say. He had told McNulty that he
wanted to see mother more, but did not want to go home to her. Having supervised a visit and seen the
dynamics between mother and D. D., McNulty doubted that he would have the
strength to confront her.
Rita
Puelicher, P. D.’s court appointed special advocate, testified that therapeutic
counseling would not be in P. D.’s best interest at this time. Like D. D., he did not express emotions
well. He wanted to stay with his foster
parents. He enjoyed mother’s visits, but
did not want them to be increased.
After
hearing argument, the juvenile court denied mother’s section 388 petition. The court found mother had not provided
sufficient evidence that her circumstances had changed or that it would be in
the minors’ best interest to give her more services. Specifically, the court was concerned that
mother had chosen to discontinue Stepping Stones and counseling so that she
could focus on school, “in light of her history and not participating in
services for an entire year and when these boys were first detained.†The court was also concerned that mother had
continued to have contact with Robert L. even beyond April 2012, when she
claimed she had ended their relationship:
her knowledge that his son had died and he was having emotional
difficulty with that showed that she had not been able to cut him completely
out of her life, “which should have been done probably in February when the
Court terminated services due to [the] choices she was making.â€
DISCUSSION
Mother contends the juvenile
court abused its discretion by denying her section 388 petition. We disagree.
A petition
to modify a juvenile court order under section 388 must factually allege the
existence of new evidence or changed circumstances; it must also allege that
the proposed modification will serve the minors’ best interests. (In re
Daijah T. (2000) 83 Cal.App.4th 666, 672.) The petitioner has the burden of proof on
both points by a preponderance of the evidence.
(Cal. Rules of Court, rule 5.570(h)(1)(D).) In assessing the petition, the court may
consider the entire history of the case.
(In re Justice P. (2004)
123 Cal.App.4th 181, 188-189.)
To decide
whether a parent has met her burden under section 388, the juvenile court must
consider such factors as the seriousness of the problem that led to the
dependency, and the reasons for the problem’s continuation; the degree to which
the problem may be and has been removed or ameliorated; and the strength of the
relative bonds between the dependent child and the child’s parents or
caretakers. However, this list is not
exhaustive. (In re B.D. (2008) 159 Cal.App.4th 1218, 1229;
56 Cal.App.4th 519, 531-532.)
When a
parent brings a section 388 petition after a section 366.26 hearing has been
set, the best interests of the child are of paramount importance. (See In
re Stephanie M. (1994) 7 Cal.4th 295, 317.) Therefore, the juvenile court looks not to
the parent’s interest in reunification but to the child’s need for permanence
and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
We review a
ruling denying a section 388 petition for abuse of discretion. (In re
S.R. (2009) 173 Cal.App.4th 864, 866.)
We reverse only if the ruling exceeded the scope of the juvenile court’s
discretion, or if under all of the evidence, viewed most favorably to the
ruling, no reasonable judge could have made that ruling. (In re
Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
Here, the
juvenile court found mother had failed to show changed circumstances, citing
two facts: (1) the fact that she stopped
participating in Stepping Stones and engaging in counseling so that she could
attend school, and (2) the fact that she failed to break off all contact with
Robert L. -- who physically abused her and fostered her continued substance
abuse -- immediately after his latest incarceration. Given mother’s history of addiction and of
failing to participate in services for a year after the minors were removed
from her custody, the court could reasonably conclude from this evidence that
mother was still minimizing the problems that led to the dependency and then
prevented her from recovering custody.
So long as she did not put her recovery first and act decisively to
remove any obstacles (e.g., by promptly ending her self-destructive relationship
with Robert L.), the danger of yet another relapse was real. Furthermore, although mother had participated
in 12-step groups and counseling, done drug testing, and acquired housing, she
had not yet shown any evidence that she could avoid falling into another
relationship as unhealthy as the one she claimed to have just left. In light of the entire history of the case (
123 Cal.App.4th at p. 189), substantial evidence supported the
juvenile court’s finding that mother’s circumstances, though changing, had not
changed sufficiently to satisfy section 388 (see In re Casey D. (1999) 70 Cal.App.4th 38, 470).
But even if
mother showed changed circumstances, she did not show that it would be in the
minors’ best interest to reinstate her reunification services. A section 366.26 hearing had been set (and,
if not continued, would have been held immediately after the section 388
hearing). The minors were adoptable and
were happily placed with foster parents who wanted to adopt them. The minors’ court appointed special advocates
testified that the minors wanted to stay in that home, not to return to
mother’s care. When a case has reached
this stage, the minors’ interest in permanence and stability outweighs a
parent’s interest in reunifying. (
at p. 309.) Reinstating mother’s
services at best would delay the achievement of permanence and stability for
the minors, and at worst could create an emotionally damaging conflict of
loyalties for them. For this reason as
well, the juvenile court’s ruling was a proper exercise of discretion.
DISPOSITION
The order denying mother’s
section 388 petition is affirmed.
ROBIE , J.
We concur:
HULL , Acting P. J.
MURRAY , J.
name="_ftn1" title="">[1] Undesignated section references are to
the Welfare and Institutions Code.
name="_ftn2" title="">[2] D. D.’s and P. D.’s alleged fathers
have not appeared in these proceedings.
