In re Jada H.

Filed 7/28/08 In re Jada H. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from the orders of the Superior Court of Los Angeles County, Sherri Soble, Juvenile Court Referee. Affirmed.

Niccol Kording, under appointment by the Court of Appeal, Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens and Byron G. Shibata, Associate County Counsel, for Plaintiff and Respondent.

__________________________________

Detra P. (mother) appeals from the orders denying her petition for reunification services under Welfare and Institutions Code section 388^[1]and terminating parental rights to Jada H. under section 366.26. Mother contends the denial of the section 388 petition was an abuse of discretion because she established that circumstances had changed and Jada would benefit from mothers receipt of reunification services. As substantial evidence supports the dependency courts finding that circumstances had not changed and reunification services were not in Jadas best interest, the dependency court did not abuse its discretion. Accordingly, we affirm.

FACTS AND PROCEDURAL BACKGROUND

Jada was born in May 2007 to mother and David H., during mothers incarceration in county jail. Jada was detained by the Department of Children and Family Services (the Department) at birth.^[2]

Mother suffered from bipolar disorder. She did not regularly take her prescribed medication. She was placed on section 5150 holds^[3]on several occasions. She had a long, unresolved history of abusing illegal drugs, including cocaine and methamphetamine. She participated in three different drug abuse treatment programs but did not succeed in becoming rehabilitated. Jada is mothers sixth child in ten years. She had custody of none of them. She used drugs during the entire period she was bearing her children, failed prior reunification services, and permanently lost custody of all the older children. She had a long criminal history involving spousal abuse, battery, vandalism, trespassing, and other offenses.

During the pregnancy with Jada, mother was arrested on January 6, 2007, for interfering with an executive officer and three warrants for failure to appear after a written promise. She was sentenced to 365 days in county jail. She admitted using cocaine one week before the arrest.

Mother was released from jail on May 31, 2007. She went back to using drugs. By July 10, 2007, she was returned to custody. On August 8, 2007, Didi Hirsch Community Mental Health Center secured for mother a conditional release from jail to the health centers Full Service Partnership Program. She moved into a residential drug treatment facility. She participated in an intensive program of case management, medication management, therapy, and psychiatric appointments. It was expected she would remain in the program for at least a year. Mothers case worker was tasked with ensuring mothers participation in all her programs. Mother cooperated with all the requirements of the programs. As of August 30, 3007, mother had a total of one visit with Jada.

On August 30, 2007, Jada was declared a dependent of the court based on sustained allegations under section 300, subdivision (b) that there is a substantial risk Jada will suffer serious physical harm or injury due to mothers substance abuse. Custody of Jada was taken from mother. Pursuant to section 361.5, subdivisions (b)(10), (b)(11), and (b)(13),^[4]reunification services were not ordered. Mother was awarded two monitored, one-hour visits per week. A permanency hearing under section 366.26 was set for December 27, 2007.

In September 2007, Jada was placed in the home of the W.s, who had adopted two other children, including one of Jadas siblings. The family was approved to adopt Jada on December 7, 2007. The W.s had attended college, Mrs. W. worked for the Probation Department, and Mr. W. was employed as a sales manager. The entire family was very attached to Jada. Jada was well-adjusted in the home. Mother had one visit with Jada between August 30, 2007, and the end of December 2007.

On December 27, 2007, the date set for the section 366.26 hearing, mother requested a contested hearing on the Departments section 366.26 recommendation that parental rights be terminated. The contested hearing was set for January 25, 2008.

On January 22, 2008, mother filed a section 388 petition. The dependency court granted mother a hearing on the petition. In the petition, mother asked the dependency court to vacate the order denying reunification services and order the initiation of reunification services. She alleged circumstances had changed in that she completed a parenting class, lived in a residential substance abuse treatment program since August 2007, remained clean from drugs, participated in counseling, visited with Jada, and shown dedication to improving herself. Letters attached to the petition indicated mother consistently participated in, and benefitted from, her rehabilitation programs and had two visits with Jada.

At the hearing on the section 388 petition, mothers case manager testified mother was participating in her rehabilitation programs. Mother had completed a parenting class and tested negative for drugs. The case manager observed two, two-hour visits with Jada during which mother cared for Jada. Mothers attitude and focus had improved: she was interested in going back to school and committed to working on anger management. Mother would remain in her residential treatment facility for a minimum of six more months. Mother testified she was participating in individual counseling, parenting classes, group therapy, psychiatric appointments, and education classes. She attended Narcotics Anonymous or Alcoholics Anonymous meetings every night. She wanted to change. Her relationship with her two oldest children, ages 10 and 9, who were under legal guardianship with the maternal grandmother, had improved during her current participation in drug rehabilitation. During visits with Jada, Jada interacted with mother and fell asleep in mothers arms.

The dependency court found that circumstances were changing but not changed. Mother had a lengthy history of being unable to stay sober for a significant period of time. Shes never had unmonitored contact with the baby. Shes never lived on her own. Shes never had a job in the community. [] We have no idea if she can stay clean and sober when she had to take care of herself. We have no idea, given her history, what she would do if she had not been ordered to be in this program by the criminal court rather than going back to jail. [] All of that together does not appear to me to be a voluntary commitment to get clean and sober. What has happened is, once mother got in the program, it took. Whether it took because she doesnt want to go back to jail, whether it took because she was ready, I dont know, but it took. [] And moms circumstances are changing rapidly and positively. Unfortunately theres a second prong, and the second prong is the best interest of the child. [] This baby is with a sibling in a home prepared to adopt. They are the people who go to sleep and get up at two oclock in the morning for the feedings. They are the people who take care of the boo-boos and the fall downs and whatever it is this baby needs. They are the people who got up with the baby when she had a first cold. They are the people who were there, day in, day out, day in and day out, taking care of this baby. They are the babys parents. [] And, while I appreciate that [mother] is a work-in-progress, a good work-in-progress, for which we are not only grateful but prideful of her, the issue is not [mother]. The issue is the baby. [] And, with an infant this age, it is very rare that the court could make the findings . . . to return. . . . Mom has seen this baby very, very rarely. The dependency court concluded it was not in the childs best interest to provide services to mother for six months.

The dependency court then denied the section 388 petition and terminated parental rights. This timely appeal followed.

DISCUSSION

The Section 388 Petition was Properly Denied

Mother contends denial of her section 388 petition was an abuse of discretion. As substantial evidence supports the findings that circumstances had not changed and granting reunification services was not in Jadas best interest, denial of the section 388 petition was not an abuse of discretion.

Under section 388,^[5]the dependency court should modify an order if circumstances have changed such that it would be in the childs best interests for a modification to be made. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526 & fn. 5.) Whether a previously made order should be modified rests within the dependency courts discretion, and its determination will not be disturbed on appeal unless an abuse of discretion is clearly established. (In re Michael B. (1992) 8 Cal.App.4th 1698, 1704.) Abuse of discretion is established if the determination is not supported by substantial evidence. (Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 796.) The party requesting the change of order has the burden of proof. (Cal. Rules of Court, rule 5.570(h)(1); In re Michael B., supra, 8 Cal.App.4th at p. 1703.)

Factors that may be considered are: (1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been. (In re Kimberly F., supra, 56 Cal.App.4th at p. 532.) [O]ur Supreme Court made it very clear in [In re Jasmon O. (1994) 4 Cal.4th 408, 414-422] that the disruption of an existing psychological bond between dependent children and their caretakers is an extremely important factor bearing on any section 388 motion. (In re Kimberly F., supra, at p. 531.)

Substantial evidence supports the finding that circumstances had not sufficiently changed to warrant the change of order. The circumstances when the no-reunification order was made were that mother had a long, unresolved history of abusing drugs and of unsuccessful efforts to rehabilitate herself despite participating in treatment programs. She did not consistently take the mediation she needed for her bipolar disorder. She had endangered her five other children, lost custody, and did not succeed in reunifying. She had a criminal record and was currently conditionally released to a treatment program in lieu of jail. Jada had neither a prior bond nor a current relationship with mother.

These circumstances did not change. When the petition was heard, Jada still had no relationship with mother. Mother was at least six months away from graduating from the drug treatment program. She had no track record of successfully remaining drug-free, compliant with her psychiatric medication, and free from criminal activity when living outside the treatment facility. She was still subject to the conditional release from jail. One circumstance changed: now Jada was bonded in a stable home with a loving family that wanted to adopt her. All of these current circumstances constitute substantial evidence to support the dependency courts finding that Jadas best interests would not be promoted by providing a reunification period for mother and thereby delaying or derailing adoption by the W.s. Denial of the section 388 petition was not an abuse of discretion.

DISPOSITION

The orders are affirmed.

KRIEGLER, J.

We concur:

TURNER, P. J.

MOSK, J.

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^[1] Hereinafter, all statutory references are to the Welfare and Institutions Code unless otherwise specified.

^[2] David was an alleged father. He declined to participate in the proceedings.

^[3] Section 5150 provides in pertinent part: When any person, as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, member of the attending staff, as defined by regulation, of an evaluation facility designated by the county, designated members of a mobile crisis team provided by Section 5651.7, or other professional person designated by the county may, upon probable cause, take, or cause to be taken, the person into custody and place him or her in a facility designated by the county and approved by the State Department of Mental Health as a facility for 72-hour treatment and evaluation.

^[4] Section 361.5, subdivision (b), provides in pertinent part that reunification services need not be provided if: the parent failed to reunify with a sibling and did not subsequently make reasonable efforts to become rehabilitated (id., subd. (b)(10)); parental rights to a sibling were terminated and the parent did not subsequently make a reasonable effort to become rehabilitated (id., subd. (b)(11)); and the parent has a history of extensive, chronic drug abuse and failed court-ordered drug treatment programs during the immediately preceding three-year period (id., subd. (b)(13)).

[5] Section 388 provides in pertinent part that a parent may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made . . . . [] . . . [] If it appears that the best interests of the child may be promoted by the proposed change of order, . . . the court shall order that a hearing be held . . . .