In re M.K.

Filed 10/29/09 In re M.K. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County. Marilyn H. Mackel, Commissioner. Affirmed.

Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant.

Robert E. Kalunian, Acting County Counsel, James M. Owens, Assistant County Counsel, and Melinda S. White-Svec, Deputy County Counsel, for Plaintiff and Respondent.

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C.K. (Mother) appeals from a January 30, 2009 order summarily denying her petition under Welfare and Institutions Code section 388 seeking reunification services with her three children, twins born in November 2004 (the Twins) and a daughter born in June 2007 (Daughter).[1] We affirm the order because the juvenile court did not abuse its discretion in denying Mothers request to modify a prior order denying reunification services.

BACKGROUND

The Twins and Daughter were detained and placed in nonrelative foster care in March 2008 after several instances of parental neglect. The Twins had been found wandering Mothers apartment complex at night without adult supervision in January 2008. On another occasion in February 2008, Mother had tied each Twin to a couch with a rope as a means of supervision. Mothers apartment was dirty and unsafe. All three children showed signs of developmental delays. Due to Mothers substance abuse, Mother had lost custody of six older children, one of whom was incarcerated and five of whom were in permanent plans with relatives.

Mother claimed that the presumed father of the three children, M.K, Sr. (Father), resided in the home, but Mother did not know his whereabouts. Father did not contact the Los Angeles County Department of Children and Family Services (DCFS) until late April 2008. From early February 2008 to March 4, 2008, DCFS had given Mother referrals for services, asked her to drug test on several occasions, and set up team decision-making meetings, but Mother refused to participate in services, drug tests, or attend the meetings.

Mother did not appear at the jurisdiction hearing in April 2008 when the juvenile court sustained the petition as to her, declaring the children dependents of the court pursuant to section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling), based on Mothers tying the Twins to the couch, allowing them to wander outside the home without adult supervision, maintaining an unsanitary home, her six-year history of drug abuse, current abuse of alcohol, and failure to reunify with her older children. In June 2008, the petition was sustained as to Father, declaring the children dependents under section 300, subdivisions (b) and (j), based on Fathers allowing the Twins to wander outside the home without adult supervision and maintaining an unsanitary home.

By August 2008, the Twins were in a foster home separate from Daughters foster home, but the foster parents (and prospective adoptive parents) were sisters and the children visited each other every day. The parents separated and had moved out of their apartment. Fathers visits with the children had become sporadic; Mother telephoned the children once after placement in foster care but had not contacted the foster parents in the next five months. Mothers whereabouts were unknown to DCFS in August 2008.

Mother appeared in court for the first time on August 27, 2008, when the disposition hearing was set for September 25, 2008. According to DCFSs September 25, 2008 interim review report, Mother was then participating in a 30-day inpatient alcohol and drug recovery program and had one monitored visit with the children in September 2008, which went well. Mother claimed to have straightened myself out and wanted custody of her children. Mother admitted that she used cocaine about 10 years ago and that she would drink beer because she was anemic and beer helped give her the energy to do what she needed to do. Although Mother admitted she was tired and had fallen asleep on the day the Twins were found wandering outside her home, she denied drinking or using drugs on that day.

In September, the disposition hearing was continued to October 27, 2008. At the October hearing, Father was not present and his attorney informed the court that he had no contact with Father after the last court appearance in June. Mother arrived at the hearing late, while the court was issuing its rulings. The juvenile court ordered the children removed from the parents and denied reunification services to both parents pursuant to section 361.5, subdivisions (b)(10) (failure to reunify with siblings and failure to treat problems leading to removal of siblings) and (b)(13) (history of substance abuse and refusal or failure to comply with treatment program on two prior occasions).

The court explained that it sees absolutely no basis to order reunification services for either parent here in that matter. While this court will acknowledge Ive been quite shocked, actually, that the parents had had additional children who were not known to the court. Glad that they were not known because . . . they were not born drug exposed but unfortunately probably should have been known because of the harm that has occurred to them in the first few years of their lives that may or may not be reversible at this point, but surprised quite frankly that . . . Mother and Father continue to have children given the circumstances of all of their prior children, and given the quality of family support that they had. [] . . . [] . . . [R]eunification services should not be offered to the parents for the following reasons: [] No. 1, they have failed to reunify with numerous of the childrens siblings who have gone to a permanent plan of guardianship, planned permanent living arrangement, and adoption. [] Pursuant to [section 361.5, subdivision] (b)(10), no reunification services ordered for either Mother or Father. [] [Section 361.5, subdivision] (b)(13) is also applicable here to both parents in that they have an extensive history of a chronic use of drugs and alcohol. Court ordered treatment has been ordered for this problem. They have failed to comply with the court ordered treatment plans on more than two prior occasions even though those programs were identified available and accessible.

The parents were granted monitored visitation. As to Mother, the court remarked that Mother is apparently working towards getting into a program. If she does maybe these children will be returned to her care one day. The court explained that Mother was already in an outpatient substance abuse treatment program, but if she enrolls in a residential [treatment] program . . . then the Department will have discretion to allow her visits to take place at the program, but pending that occasion her visits should take place monitored, DCFS office, or any other neutral setting. A permanent plan hearing was set for February 19, 2009.

Mother filed a petition pursuant to section 388 on January 22, 2009, requesting that the court grant her reunification services. As changed circumstances, her request alleged that she enrolled in a residential rehabilitation program at Clare Womens Recovery Home on October 7, 2008, and that she attended 12-step, parenting, anger management, and substance abuse awareness groups and had a sponsor. Mother also continued regularly weekly visits with the children. Two letters and a certificate from Clare Foundation, Inc., were attached as exhibits to the petition. The exhibits confirmed Mothers completion of a 30-day primary recovery program before her transition to the long-term residential program in October 2008 and established Mothers compliance with the residential program.

Mother also alleged that reunification services would be better for the children because they had a bond with her, they were excited for their weekly visits, and they deserved an opportunity to reunify with her, as she was making progress in ameliorating the issues that brought them into the dependency system. A letter from Daughters foster parent, who transported the three children to the visits, confirmed that the children were excited and looked forward to visits with Mother, who visited for the last five months on a weekly and holiday basis. The foster parent strongly encouraged continued visitation until reunification.

On January 30, 2009, and then again in a February 2, 2009 walk-on matter, the juvenile court summarily denied Mothers petition without a hearing on the grounds that (1) her request did not state new evidence or a change of circumstances, (2) the proposed change of order does not promote the childrens best interests, and (3) Mothers drug history spans more than 14 years and she has failed to reunify with seven of the minors siblings. Treatment has just begun [for] Mother whose neglect of these children in 2008 was severe. She should continue with her treatment independent of the court.

Mother appeals from the summary denial of her petition without a hearing, asserting that she made a prima facie showing to justify a hearing. She claims that there were changed circumstances due to her diligent participation in the drug rehabilitation program and that there was a showing that reunification services would be in the childrens best interests due to their eagerness to attend her regular visits.

DISCUSSION

The parent seeking modification must make a prima facie showing to trigger the right to proceed by way of a full hearing [Citation.] [Citations.] There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. [Citation.] If the liberally construed allegations of the petition do not show changed circumstances such that the childs best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.) We review the summary denial of the petition for abuse of discretion. (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079.)

Here, the juvenile court did not abuse its discretion in summarily denying Mothers petition because there was no prima facie showing of both changed circumstances and the childrens best interests. As to the first factor, Mother showed that she only recently entered a drug rehabilitation program and thus that her circumstances were in the process of changing. But [a] petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the childs best interests. [Citation.] (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)

A line of cases supports the proposition that changed circumstances are not shown by a parent with a long history of drug abuse who files a petition for modification after being in a treatment program for only a relatively short period of time. The court in In re Mary G. (2007) 151 Cal.App.4th 184 (Mary G.) upheld the denial of an evidentiary hearing on a mothers section 388 petition seeking reunification services filed a month before the permanency planning hearing. As here, the mother in Mary G. was denied reunification services because of her failure to reunify with several older children.

In concluding that the mother, Jennifer, did not make a prima facie showing of changed circumstances, the court in Mary G. explained that Jennifer conceded that when the jurisdiction and disposition hearing was held in early January 2006 she was not actively engaged in drug rehabilitation. She argued circumstances had changed because in March she completed a detoxification program, and she was in drug treatment and attending NA meetings. Jennifers drug abuse, however, dates back more than 23 years. She reported she began using illegal substances at the age of 13, and that contributed to her dropping out of school during the 10th grade. . . . She lost custody of her three older children because of her drug abuse. Given the severity of Jennifers drug problem the court could reasonably find her sobriety between March and the date of the hearing, June 20, was not particularly compelling. (Mary G., supra, 151 Cal.App.4th at pp. 205206; see also In re Clifton B. (2000) 81 Cal.App.4th 415, 423 [denial of a fathers petition on merits upheld where he had relapsed into drug use twice during the dependency proceedings and most recent seven-month period of sobriety while commendable, was nothing new]; In re C.J.W., supra, 157 Cal.App.4th at p. 1081 [denial of petitions on merits upheld where parents with history of drug use had been participating in rehabilitation program for only three months]; In re Amber M. (2002) 103 Cal.App.4th 681, 686687 [denial of petition on merits upheld where the mother had been clean for 372 days, but had a 17-year history of drug abuse and relapsed twice during dependency proceeding, once after more than 300 days of sobriety].)

In light of the foregoing authorities, the juvenile court here reasonably could have inferred from Mothers 14-year history of drug use and the entire factual history of the case that Mother was in the early stages of recovery and that the efforts she was making, though commendable, did not constitute changed circumstances such as to warrant a hearing on the petition. And because Mothers circumstances were in flux, rather than changed, the court was entitled to conclude that granting Mothers request for reunification services was not in the childrens best interests. (In re Casey D., supra, 70 Cal.App.4th at p. 49.) The juvenile court did not abuse its discretion in concluding that there was no showing whatsoever of how the best interests of these young children would be served by depriving them of a permanent, stable home in exchange for an uncertain future. (In re C.J.W., supra, 157 Cal.App.4th at p. 1081.)

Noting the juvenile courts remark at the October 2008 disposition hearing that if Mother enrolls in a residential treatment program then her children may be returned to her one day, Mother argues that she followed the courts direction to the letter, but the court contradicted itself and ignored its own directive by denying the section 388 hearing. The record shows that the juvenile court did not make any express or implied promises about the return of the children to Mothers custody. Further, the courts recommendation that Mother enter a residential treatment program was made for her personal benefit and independent of the dependency proceeding. Mother fails to establish that the courts remarks at the October 2008 hearing prejudiced her in any way or had any bearing on, or relevance to, her subsequent section 388 petition.

For all of the foregoing reasons, we reject Mothers claims that the juvenile court abused its discretion and denied her due process rights to a full and fair hearing on the merits of her petition.

DISPOSITION

The January 30, 2009 order is affirmed.

NOT TO BE PUBLISHED.

MALLANO, P. J.

We concur:

ROTHSCHILD, J.

CHANEY, J.

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[1]Unspecified statutory references are to the Welfare and Institutions Code.