In re K.P.
Filed 7/1/13 In re K.P. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re K.P. et al., Persons Coming Under the Juvenile Court
Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,
Plaintiff
and Respondent,
v.
K.M.,
Defendant
and Appellant.
E057921
(Super.Ct.No.
INJ016294)
OPINION
APPEAL
from the Superior Court
of
County. Matthew C.
Perantoni, Temporary Judge. (Pursuant to
Cal. Const., art. VI, § 21.) Affirmed.
Daniel
G. Rooney, under appointment by the Court of Appeal, for Defendant and
Appellant.
Pamela
J. Walls, County Counsel,
and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
K.P.,
age two, and K.M., less than one year, became dependents as a result of
long-term drug abuse and the extensive criminal histories of their parents.
children had previously been terminated, so the court denied services to
mother, but granted services to the father of K.M. Services to the father of K.M. were
terminated at the six-month review hearing and a hearing pursuant to Welfare
and Institutions Code
name="_ftnref2" title="">[2] section 366.26, was set for both
children. During the interval prior to
the section 366.26 hearing, mother completed a three-month residential drug
rehabilitation program, gave birth to another child who remained in mother’s
care, and resided in a sober living home, which formed the basis for a petition
to modify the prior court order pursuant to section 388. The court denied the petition and terminated
parental rights. Mother appealed.
On
appeal, mother challenges the denial of her section 388 petition as an abuse of
discretion. We affirm.
On
October 20, 2011, the Riverside
Department of Public Social Services (DPSS) received a referral for K.P.,
then age 21 months, and K.M., then seven months of age. Mother had been arrested following a parole
sweep of her residence during which she was found to be in possession of methamphetamine,
narcotic medication, checks and credit cards; in addition, a registered sex
offender was in the apartment. Mother’s
history revealed long-term use of methamphetamine, commencing when she was 11
years old, when she was in foster care herself.
She also had an extensive criminal history involving drug offenses, as
well as stolen checks and credit cards.
Both
parents had child welfare history, having lost custody of two other children
prior to DPSS involvement with K.P. and K.M.
On May 25, 2010,
their parental rights had been terminated as to two older children. On October
28, 2011, the current dependency petition was filed alleging
parental neglect (§ 300, subd. (b)), and leaving the children without
provision for support. (§ 300, subd.
(g).) As to mother, the allegations were
based on her extensive history of substance abuse, her arrest and incarceration
following the parole sweep, and her prior history with DPSS wherein mother was
provided services but failed to benefit from them, leading to her permanent
loss of custody of two other children.
The court ordered that the children be detained out of home pending a
jurisdictional hearing.
The
report prepared for the jurisdictional and
dispositional hearing revealed more information about mother’s addiction to
methamphetamine, which began when she was a foster child, herself. Mother’s first child, born in 2002, tested
positive for methamphetamine at birth.
In 2004, that child, J.H., was declared a dependent and mother was
offered family maintenance services. That dependency was terminated in 2005.
In 2006, another
referral was received by the Child Protective Services (CPS) when mother was
arrested for burglary while her child was with her. A dependency petition was filed relating to
J.H., who was declared a dependent in January 2007. Services were denied in that dependency due
to the length of mother’s incarceration.
However, in 2008, the court granted mother’s 388 petition as to J.H. and
ordered reunification services for mother.
Mother failed to
complete the case plan, resulting in termination of those services in January
2009, when a new referral was made on behalf of mother’s second child,
L.P. Mother was denied services again,
and on May 25, 2010,
mother’s parental rights as to J.H. and L.P. were terminated. Based on the length of mother’s substance
abuse, spanning approximately 20 years,
children in previous dependency cases or to treat the underlying problems (ref.
§ 361.5, subdivisions (b)(10), (11), (13)), the social worker recommended
denial of reunification services in the current dependency.
On
January 18, 2012, the court
sustained the petition and adjudged the children to be dependents pursuant to
section 300, subdivisions (b) and (g).
The court removed custody of both children from the parents, and ordered
reunification services for the father of K.M. only. As to mother, the court made findings
pursuant to section 361.5, subdivisions (b)(10), (11) and (13), and denied
reunification services for her. The
court set a section 366.26 hearing for K.P., to select and implement a
permanent plan for that child.
name="_ftnref4" title="">[4]
The
section 366.26 report prepared for K.P. indicated that both children were
placed with K.M.’s paternal uncle. The
caretakers originally indicated a willingness to adopt both children. During this time, mother was participating in
an inpatient treatment program, from which she was scheduled to graduate in May
2012. Mother also visited consistently,
and the end of the visits was traumatic for K.P., who wept profusely when
mother left.
In the July 2,
2012, report, prepared for K.M.’s six-month review hearing (§ 366.21,
subd. (e)), it was revealed that mother had been arrested by her parole officer
on June 5, 2012, for being under the influence of methamphetamine, at which
time mother was five months pregnant with her fifth child. This was apparently mother’s third positive
drug test, so the parole officer attempted to get mother placed in a custodial
drug treatment program. Mother was
released from custody on June 29, 2012, and went straight into the New Hope
program. The report prepared for K.M.’s
six-month review revealed that mother visited the children consistently, and that
her visits were adequate, with mother occasionally providing nurturance to the
children, and engaging them in problem solving.
The social worker noted there appeared to be a maternal bond.
K.M.’s
father also tested positive for methamphetamine and was arrested in April
2012. He had been discharged from his
drug treatment program for failure to participate a month after enrolling. Because of father’s chronic and unresolved addiction
problems, as well as his failure to comply with plan objectives, the social
worker recommended that services to him be terminated and that K.M.’s case be
set for a 366.26 hearing. On July 17,
2012, the court conducted the six-month review hearing as to K.M., terminated
the father’s reunification services, and scheduled a section 366.26 hearing for
K.M.
In
the meantime, the caretakers of the two children informed the social worker
that they no longer planned to adopt K.P., because they were taking another
nephew into their home. Their apartment
was not sufficient for all the children, so they planned to adopt K.M. only, as
she was a blood relative. Additionally,
K.P. was frightened of movies, amusement parks, and going out to dinner, crying
profusely, which affected family time for the caretakers. K.P. was removed from this home and placed
with her former foster mother before being placed in the home of the adoptive
parents of her older half-sibling, J.H., and full sibling, L.P.
On
October 19, 2012, mother filed a petition to modify the prior order, seeking
return of the children with maintenance services, or reunification
services. The petition asserted mother
had completed a residential drug program between June 29, 2012, and September
26, 2012, which program also entailed parenting classes, a domestic
violence/anger management program, individual counseling, and Narcotics
Anonymous/Alcoholics Anonymous meetings.
She also asserted she had tested clean, maintained her sobriety, and
shared a strong bond with the children through regular visits. The court ordered a hearing on the petition.
On
October 30, 2012, the social worker submitted a postpermanency review report,
recommending termination of parental rights.
The report described mother’s consistent visitation with the children
since her release from prison and revealed that K.P. cried when she left her
mother at the first visit. However, in
September, the minor was able to leave mother without any problem. Nevertheless, the visits went well with
mother providing nurturance and meeting the child’s needs during visits. The social worker recommended adoption of
K.P. by her adoptive parents, who had adopted K.P.’s older sibling and
half-sibling. The social worker
recommended adoption of K.M. by her paternal uncle, with whom K.M. had been
placed since April 2012, and appeared to be bonding.
The
combined section 388 and 366.26 hearing was held on December 6, 2012. Mother testified at the hearing that her
circumstances had dramatically changed based on her successful completion of
the residential treatment program and six months of sobriety. She provided the results of a hair follicle
test which was negative for the presence of drugs for hair samples collected on
November 6, 2012. Mother gave birth to
her fifth child, M.M., in October 2012, prior to her discharge from New Hope
Rehabilitation Inpatient Program. That
child, who was seven weeks old at the time of the hearing, was maintained in
mother’s custody. Upon mother’s
discharge from New Hope, she entered a sober living home and enrolled in Mom’s
Program, an intensive outpatient program.
The
court considered the mother’s testimony along with the social worker’s reports
and addenda. Although impressed with
mother’s efforts to turn her life around, the court concluded mother was in the
process of changing and not yet sufficiently changed to warrant a change of the
prior order. The court denied the
section 388 petition.
Turning to the
selection and implementation hearing (§ 366.26), the court determined that it
was likely the children would be adopted.
The court, considering the testimony provided by mother in support of
her section 388 petition, found that none of the exceptions found in section
366.26, subdivision (c)(1)(A) or (B) applied, and that termination of parental
rights would not be detrimental to the children. It then terminated the parental rights of
mother and both fathers. Mother timely
appealed.
Mother argues on
appeal that the court erroneously denied her section 388 petition.
discretion of the juvenile court, and its decision will not be overturned on
appeal in the absence of a clear abuse of discretion. (In re
Stephanie M. (1994) 7 Cal.4th 295, 318; In
re S.J. (2008) 167 Cal.App.4th 953, 959.)
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. (Stephanie M., at p. 319.)
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 evidence or changed circumstances exist, and (2) the
proposed change would promote the best interests of the child. (In re
Stephanie M., supra, 7 Cal.4th at pp. 316-317.) The parent bears the burden of showing both a
legitimate change of circumstances and that undoing the prior order would be in
the best interest of the child. (
519, 529.) Generally, the petitioner
must show by a preponderance of the evidence that the child’s welfare requires
the modification sought. (
1228.)
In evaluating
whether the petitioner has met his or her burden to show changed circumstances,
the trial court should consider: (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.)
Not every change in circumstance can justify modification
of a prior order. (In re A.A. (2012) 203 Cal.App.4th 597, 612 [4th Dist., Div. Two],
citing In re S.R. (2009) 173
Cal.App.4th 864, 870.) For a parent with
an extensive drug history punctuated by treatment and relapses, the parent must
show that his or her circumstances have actually changed, and are not merely
changing. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) “It is the nature of addiction that one must
be ‘clean’ for a much longer period than 120 days to show real reform.†(In re
Kimberly F., supra, 56 Cal.App.4th at p. 531, fn. 9.)
For this reason, even a showing of great effort to make
improvements will not necessarily be persuasive when a parent has an extensive
history of drug use. (See
1075, 1081 [4th Dist, Div. Two].)
Periods of sobriety following relapse do not necessarily demonstrate a
changed circumstance where the parent has a history of alternating drug use and
sobriety. (See In re Cliffton B. (2000) 81 Cal.App.4th 415, 423.)
In In re Amber M. (2002)
103 Cal.App.4th 681, mother filed a section 388 petition after completing
domestic violence and sexual abuse treatment programs, as well as the
residential portion of a substance abuse program. Mother had abused controlled substances for
more than 17 years and she had been clean for 372 days at the time of the
section 388 hearing, with two relapses during the course of the dependency, one
of which occurred after more than 300 days of sobriety. At the time of the hearing, mother was living
in a sober living unit. (
court’s denial of the section 388 petition because while mother was progressing
in treatment, return to her custody would not be in the children’s best
interests, although it reversed the termination of parental rights because of a
beneficial parent-child relationship. (
Similarly, in In re
Cliffton B., supra, 81 Cal.App.4th 415, the reviewing court ruled that
father’s section 388 petition was properly denied. There, father had experienced seven months of
sobriety since a relapse that occurred earlier in the case, and had a drug use
history dating back to his college days.
Since then his periods of sobriety alternated with recurring drug use. After the initial detention of his children,
it took father six months before he was able to stay sober for any length of
time, and then, after eight months of sobriety, he relapsed, followed by the
most recent period of sobriety. (
recent 200 days of sobriety was not enough to reassure the juvenile court that
the most recent relapse would be his last.
(Id. at p. 424.)
In this case, mother’s situation is similar to those of
the parents in Amber M. and
Although mother described her circumstances as dramatically changed,
her situation was actually the same: she
was experiencing a period of sobriety following a relapse of substance abuse,
which was a continuing pattern. Mother’s
recent period of sobriety was for a mere six months (admittedly a huge change
for mother), but she was still in a sober living home at the time of the
hearing, functioning within a structured environment. She had never demonstrated the ability to
maintain sobriety without the structure and assistance of a program.
The trial court was impressed by mother’s efforts to turn
her life around, as are we, but given her very long history of chronic
substance abuse, commencing when she was 11 years old, and her continuing
pattern of relapses, six months of sobriety is simply insufficient to establish
mother’s circumstances had actually changed.
(Mother was 31 at the time of the hearing, so she had a 20-year history
of substance abuse.)
We agree with the juvenile court’s conclusion that mother
had not met her burden of demonstrating changed circumstances. Having failed to meet the first prong of
section 388, we do not need to address whether the proposed modification would
be in the children’s best interest, other than to reiterate the conclusion of
our sister court that while mother was progressing in treatment, return to her
custody would not be in the children’s best interests. (In re
Amber M., supra, 103 Cal.App.4th at p. 687.)
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.
J.
We concur:
MILLER
J.
CODRINGTON
J.
fathers of K.P. and K.M. are not involved in this appeal. They will be mentioned only where needed for
context.
name="_ftn2" title="">
[2] All
further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
