In re K.R.

Filed 12/15/08 In re K.R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Kyle Brodie, Judge. Affirmed.

Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant Q.D.

Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant A.R.

Ruth E. Stringer, County Counsel, and Sandra D. Baxter, Deputy County Counsel, for Plaintiff and Respondent.

I. INTRODUCTION

Q.D. (mother) appeals from orders of the juvenile court terminating her parental rights to her children, Ke. (born in March 2003) and Ki. (born in March 2005). A.R. (father), the biological father of Ki., appeals from orders of the juvenile court terminating his parental rights to Ki.^[1] Ke.s alleged father is not a party to this appeal. Counsel for the children has filed a brief urging us to affirm the juvenile courts orders.

Mother contends the juvenile court erred in denying her petition brought under Welfare and Institutions Code^[2]section 388. Father joins mothers brief and further contends that if this court finds that mothers parental rights should not have been terminated as to Ki., then fathers parental rights to Ki. should also be restored. We find no error, and we affirm.

II. FACTS AND PROCEDURAL BACKGROUND

In November 2006, mother requested the Riverside County Department of Public Social Services (DPSS) to take the children into custody because she was unable to provide adequate care, support, or protection for them. The DPSS removed the children from her care and filed a petition alleging the children came within section 300, subdivisions (b) and (d). The petition alleged that mother used marijuana, was homeless, and had been diagnosed with depression but had not followed through with recommended medication. The petition alleged that the children had different fathers whose whereabouts were unknown, and both of whom had failed to provide support for the children. At the detention hearing, the juvenile court found that a prima facie showing had been made and removed the children from mothers custody.

The DPSS filed a jurisdiction report stating that mother had given up the children because she was living in a shelter, could not go to classes, and did not have daycare for the children. Mother stated she had never used marijuana in front of the children, that using marijuana was not a habit for her, and her last use had been a month ago. She had had depression problems since the age of 12 or 13 for which she had last taken medication when she was 16. Mother had been born drug exposed and had been placed in foster care when she was 18 months old. She had no prior employment, but she was looking for work. She thought she might be pregnant again.

The children visited mother in November 2006 and the children had called her Mommy, had been happy to see her, and played with her. At the end of the visit, Ke. asked if mother was going with him, but mother said she could not do so right then.

At the jurisdictional hearing in January 2007, the court struck the allegation that mother was homeless and found the petition true as amended. The court removed the children from mother and ordered her to participate in reunification services, including a psychotropic medical evaluation and monitoring, general counseling, a parenting class, substance abuse testing, and a drug program. The case was transferred to San Bernardino County, where mother was then living.

A status review report filed in June 2007 stated that mother had enrolled in a mental health and substance abuse program. Mother was living with her current boyfriends family, but she stated the house was not appropriate for the children because of drug use in the house. Mother had taken two jobs but had either quit or been terminated from both, and she had then begun working through a temporary agency. Mother had to repeat the first phase of her drug program because she admitted to marijuana and cocaine use. In May 2007 she had been dropped from the program because she missed the van. The program closed her case and transferred her to another outpatient program. As of June 2007, mother had not contacted the transfer program but had enrolled in a different program. Mother had weekly supervised visits with the children, although she occasionally cancelled the visits because she did not want the children to see her upset or because she could not arrange transportation. She also had twice-weekly telephone calls with the children. The children did not ask about mother between visits, but they appeared to enjoy their contacts with her.

At the six-month review hearing, the juvenile court ordered that mother continue to receive reunification services. The court found that mother had made substantial progress toward correcting the problems that had led to removal of the children.

The 12-month review report filed in November 2007 stated that mother had made no further progress in her reunification efforts. She had left the second drug program, did not follow through with counseling, did not drug test, and admitted using drugs in the past. She was no longer living with her boyfriends family but stayed with family members or friends or sometimes stayed in parks. She had had two jobs, but did not maintain them, and she was pregnant. Mother had visited the children once every three or four weeks. She did not call them as often, and the calls lasted only a few minutes. Ke. no longer asked if mother had found a place to live yet, and the children no longer asked about mother. The children first referred to their caretaker as mommie Ann and later, when mother visited less, as mommie.

Mother had a visit with the children in January 2008, which resulted in an incident report. The office director saw mother forcefully dragging Ki. down the hallway when Ki. left the visitation room and saw mother using only one hand to lift Ki. off the ground by her left shoulder and upper arm. Mother became angry when the director told mother to put Ki. down. When the director explained her concern about injury to the child, mother angrily denied carrying Ki. inappropriately and then turned to Ke., shoved a teddy bear in his face, and told him to play with it. Mother had telephone calls with the children twice a week, but on one occasion, the children were not interested in talking to mother because they were watching a video.

At the contested 12-month review hearing, mother testified she had enrolled in an inpatient drug program in January 2008. The six-month program addressed substance abuse, anger management, domestic violence, parenting, counseling, and religion. Mother stated she was also attending relapse prevention classes and Alcoholics Anonymous (AA), Narcotics Anonymous (NA), and Cocaine Anonymous panels. She was required to drug test randomly in the program but had not yet been asked to do so. She could have her children placed with her at the program. Before mother entered the program, she had been homeless. She had slept at hotels when she could earn money by braiding hair and babysitting or she slept in abandoned buildings.

Mother testified she had been enrolled in another drug program for two months starting in July 2007 but had left that program because the supervisor talked about mothers personal business with another client. Mother had last used marijuana in December 2007, and she admitted having an addiction to marijuana. She had used cocaine only twice in her life, the last time eight or nine months previously.

The juvenile court found that mother had failed to make sufficient progress in her programs and it terminated mothers reunification services and set the matter for a hearing under section 366.26.

The section 366.26 report filed in April 2008 stated that mother had consistently been visiting and calling the children since the previous hearing. She had given birth to another daughter in February 2008 and had brought the new baby to one visit with the children. The children seemed bewildered by the new baby; Ke. isolated himself and refused to sit next to his mother and the new baby. He seemed to regress after that visit, including wetting his bed.

An adoption assessment was filed in April 2008. The report stated that the children were appropriate to be adopted because of their young ages and because of their current caretakers willingness to adopt them. The children were emotionally attached to their caretaker, who loved them and could provide them with a loving and safe home.

In an interim review report filed in May 2008, the social worker stated that mothers visits had been inconsistent in that she had missed four of nine possible visits since January. Sometimes she had called the children only once a week or not at all and had spoken to the children only a minute or two. A referral had been made after the new babys birth, and mother had accepted voluntary family maintenance services. According to the residential counselor, mother had been discharged from her inpatient drug program in April 2008 because she was not getting along with other residents and was not making progress. Against the programs advice that she enter an outpatient program and move to a sober living facility, mother instead moved in with her own mother and grandmother and later moved to San Bernardino.

The clinical supervisor at mothers inpatient drug program then sent the social worker a second letter stating that mother had been discharged from the program in April 2008 with treatment complete. The social worker spoke to the supervisor, who stated the treatment team felt mother had progressed as far as she could in the residential program. Mother had created a lot of chaos with staff and other clients but had participated as best she could. The treatment team felt mother needed aftercare services to prevent relapse. Copies of both letters were attached to the report.

Mother filed a petition under section 388 in June 2008 requesting that the children be returned to her custody. She attached a declaration stating she had not used alcohol or drugs since January 2008; she had completed an inpatient drug program and a parenting class; she participated in an average of three NA/AA meetings weekly; and her infant daughter had been born drug free. The referral in Los Angeles County as to the infant daughter had been deemed unfounded, and that case had been closed. She stated she loved and missed her children and she was a completely different person from the time her services had been terminated. Mother also attached a letter from her treatment center stating she had completed 94 days of treatment and had been discharged with treatment complete. She had submitted to random drug testing, and the results had been negative. Mother also attached a parenting certificate and a letter from the Los Angeles Department of Children and Family Services stating that a referral regarding general neglect was unfounded and that the case had been closed.

The section 388 petition stated that the requested change of order would be in the childrens best interests, because if the children were placed with mother, they would have an opportunity to be with their sibling, and such placement would give them the best chance for permanency and emotional stability.

The juvenile court simultaneously heard testimony on the section 388 petition and the section 366.26 hearing. Social Worker Janice Carter testified she had been assigned to the case since February 2007. Her recommendation was to terminate parental rights and free the children for adoption. Carter did not think mother was in any better position to parent the children than she had been four months earlier, because mother had changed residences three times since then, did not consistently visit the children, had left the drug treatment program, and did not follow through with a recommended outpatient program. Carter conceded there was no evidence that mother had used drugs while she was in the drug program or afterward. Carter testified that there had been two referrals in Los Angeles County regarding the new baby. The referral for general neglect had been deemed unfounded and had been closed. Mother had participated in a voluntary family maintenance program for the other referral, but the voluntary maintenance program had been terminated when mother moved out of Los Angeles County. There was an open referral in San Bernardino County regarding the new baby, but Carter did not have any information about whether mother was adequately caring for the new baby.

Carter had supervised several of mothers visits with the children. She testified that mother had had a difficult time engaging the children in play, and the foster mother had intervened. Although mother was authorized to have two telephone calls with the children each week, most of the calls to the children had lasted only a minute or two, and mother sometimes had not called them for over a week.

Mother testified she had not used drugs since December 2007. In her drug program, she had learned what she needed to remain drug free and how to avoid relapse. When she left the program, she had moved in with her mother and was presently living with a cousin. She testified that if the children were returned to her, they would live with her in the cousins apartment, and she had funds to provide them with necessities. She had a sponsor and continued to randomly drug test once or twice a week. From individual counseling, she had learned to deal with her anger, depression, and drug use. She attended AA and NA meetings twice a week. She had decided to stop using marijuana because she wanted to get her children back, to better her life, and to be something. She had planned to attend the inpatient drug program for the full six months, but the program had given her a treatment complete early. She had had disagreements with other residents early in the program but not later. She had followed the programs recommendation that she go to 12-step meetings.

Mother had missed some visitations with the children because of her infant daughters medical appointments, because the foster mother was unavailable, or because she was homeless and did not want to visit my kids dirty and smelling. She had a good relationship with the children, and they called her mommy. The children referred to the foster mother as [e]ither Charlotte or Momma Ann.

Mother acknowledged the children had been out of her home for 18 months. When asked why she believed it was in the childrens best interests to be returned to her, she responded, For the simple fact that when I did have my kids, I took care of my kids. Anything I have to do to provide for them I did it. They didnt go without. I was the one who asked CPS to help me. I was thinking about my kids instead of me. I love my kids. You know, Im always there. I never missed a day out of their lives [until the last 18 months].

Mothers counsel argued that the requested change would be in the childrens best interests because the children knew who their mom [wa]s, referred to her as mom, felt comfortable with her, gave her hugs, and played with her. Counsel for the Department argued that mother had not stabilized her residence and had not demonstrated completion of a drug treatment program. Moreover, mother had not been consistent in her contact with the children, and there was no sibling bond with the new infant.

Following the hearing, the juvenile court denied the section 388 petition. The court stated that even if mother had met her burden of showing a change of circumstances, she had failed to show that the requested change would be in the childrens best interests. The court noted the children had been in a stable placement where they were happy and safe. The juvenile court found by clear and convincing evidence that the children would be adopted, and the court terminated parental rights.

III. DISCUSSION

A. Denial of Mothers Section 388 Petition

Mother contends the juvenile court erred in denying her section 388 petition because she had met her burden of showing changed circumstances and that it would be in the childrens best interest to return to her care.

1. Standard of Review

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. [Citations.] (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)

2. Analysis

Under section 388, a parent may petition the juvenile court to set aside any order during the dependency. The parent bears the burden of showing both that circumstances have changed and that the proposed change would promote the best interest of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 530.) Here, the juvenile court found that mother had showed she had significantly changed her circumstances, but that she had failed to meet her burden of showing the proposed change of order would have been in the childrens best interest. We will therefore focus our discussion on the best interest prong.

In In re Kimberly F., supra, 56 Cal.App.4th 519, the court identified a number of factors the court should consider in evaluating whether the proposed change of order would be in the childrens best interest: (1) the seriousness of the reason for the initial dependency; (2) the strength of the existing bond between the parent and child; (3) the strength of the childs bond to the present caretakers and the length of time the child had been in the dependency system; and (4) the nature of the changed circumstances, the ease with which the change was brought about, and the reason the change was not made before. (Id. at pp. 530-531.) Here, with respect to the first factor, mother herself requested the DPSS to take the children into custody because she was not able to provide for them; her underlying problems included homelessness, drug use, and untreated depression. With respect to the fourth factor, although mother made commendable progress in addressing her drug addiction, she had refrained from drug use for only six months at the time of the hearing. Moreover, she had not obtained employment, and she occupied a bedroom in cousins apartment after having moved several times since her early discharge from her drug treatment program. With respect to the second and third factors, although mother testified that she had a strong bond to the children, they had spent 18 months in foster care nearly half of Ki.s life and nearly a third of Ke.s life, and evidence showed that the children no longer asked about her. The children had been placed with the same caretaker throughout the dependency and had a strong and loving bond to their caretaker, who wished to adopt them. Mother had given birth to a third child during the dependency, which appeared to bewilder the children, and Ke. regressed in his behavior after mother brought the new infant to a visitation.

We conclude, based on those factors, that the juvenile court did not abuse its discretion in denying mothers section 388 petition.

B. Fathers Joinder

Father did not raise any independent issues on appeal but merely joined mothers arguments. We have rejected mothers contentions on appeal, and consequently, we find no error with respect to father.

IV. DISPOSITION

The orders appealed from are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

J.

We concur:

RAMIREZ

P.J.

GAUT

J.

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^[1] In case No. E044957, mother previously filed a notice of intent to file writ petition following the juvenile courts order setting a hearing under Welfare and Institutions Code section 366.26. After mothers counsel filed a letter stating that she could find no legal or factual issues upon which to file a writ, this court dismissed the petition. In case No. E042298, Father previously filed an appeal from the juvenile courts order denying him reunification services. We affirmed that order. On the courts own motion, the records in case Nos. E044957 and E092298 have been incorporated into the record in this case.

^[2] All further statutory references are to the Welfare and Institutions Code.