M.
Filed 4/3/13 In re Rachel M. CA5
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opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL OF THE STATE OF
CALIFORNIA
FIFTH APPELLATE DISTRICT
In
re RACHEL M., a Person Coming Under the Juvenile Court Law.
KERN COUNTY DEPARTMENT OF HUMAN
SERVICES ,
Plaintiff and Respondent,
v.
AMANDA M.,
Defendant
and Appellant.
F066113
(Super.
Ct. No. JD126054)
THE
COURT
title="">*
APPEAL from an order of the
Superior Court of
Leslie A. Barry, under appointment
by the Court of Appeal, for Defendant and Appellant.
Theresa A.
Goldner, County Counsel, and Jennifer E. Feige, Deputy County Counsel, for
Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Amanda M.
(mother) appeals from the juvenile court’s orders denying her petition pursuant
to Welfare and Institutions Code section 388,
child, Rachel M., and terminating mother’s parental rights. We reject mother’s contentions and affirm the
juvenile court’s orders.
FACTS AND
PROCEEDINGS
Proceedings
On February
18, 2011, the Kern County Department of
Human Services (department) detained Rachel M., who was four years old.
filed pursuant to section 300 alleging that Rachel was at substantial risk of
physical harm because mother was abusing substances, suffered from a mental
illness, “flips out,†failed to get adequate treatment for her mental illness,
and could not provide Rachel with regular care.
The petition further alleged Rachel was at substantial risk of harm
because of mother’s willful or negligent failure to properly maintain the
residence, which was filthy and full of cockroaches.
The petition alleged mother’s
residence was filthy and unhealthy because it was filled with spiderwebs
containing dead cockroaches, cookware that was covered in cockroach droppings,
and dead cockroaches in the refrigerator.
The petition further alleged that mother failed to provide Rachel with
adequate medical care, food, clothing, and shelter. Mother has a history of residing with her
children in dirty homes, having unstable housing, and receiving preventative
services in the past that have not been successful.
Rachel’s sister, Mary M., was being
treated for a cold between February 3 and February 11, 2011. Mary began feeling sick at school on February
10. On February 18, 2011, a social
worker with the department met with a nurse and a police officer at the
hospital where Mary had been admitted as a patient. Mary was suffering from pneumonia,
dehydration, and renal failure. Mother
admitted suffering from depression, “flipping out,†hitting her head against a
wall and blacking out, and to the use of methamphetamine as recently as
December 2010. A visit to mother’s home
revealed the squalor set forth in the petition.
Mother resided with her father who was verbally abusive.
Mother was arrested for drugs in
2004 and had her first referral to the department for neglect of Mary that
year. Mother had further referrals to
the department for neglect in 2006, 2007, 2010, and January 2011. Mother had a history of living in unstable
and dirty housing with her children.
Mother admitted that when Mary was three years old, she began to use
methamphetamine. Mother explained that she
used methamphetamine for three years, stopped for a year, and relapsed in December
2010. Mother described herself as an “ex
tweaker†and denied current use of methamphetamine.
Mother was diagnosed with
depression by her primary care physician and was prescribed an antidepressant
medication, but was non-compliant on her medication due to bad side
effects. The social worker expressed
concern to mother that she was not receiving treatment for her mental illness,
had a recent drug history, did not seek proper medical treatment for Mary, and
was in a harmful relationship with her father.
The detention hearing was held on February 25, 2011.
At the disposition hearing, mother
waived her right to a contested hearing
and admitted the allegations in the petition.
Prior to the disposition hearing, mother was homeless for a time, but
again resided with her father. Although
mother did not avail herself of a department inspection of the father’s
residence, the exterior of the residence remained unsafe for the children to be
returned to mother’s care.
At the conclusion of the
disposition hearing on April 20, 2011, Rachel was removed from mother’s custody
and mother was granted reunification services.
Mother was ordered by the juvenile court to participate in counseling
for parenting, comply with mental health counseling and treatment, including
taking any recommended medications, and submit to random drug testing. The court further ordered mother to enroll in
substance abuse counseling. Mother was
granted weekly supervised visitation for two hours.
Review Hearings
A report by the department that was
prepared for a review hearing on October 20, 2011, indicated that as of October
2011, mother failed to enroll in a counseling for parenting program. As of September 2011, mother began taking medications
prescribed by her mental health physician.
The department had not yet confirmed mother’s diagnosis. Between April 29, 2011, and September 16,
2011, mother was scheduled for 14 drug tests.
Mother failed to test six times and was presumed to test positive for
drug use. Mother had three positive drug
tests, including her most recent test on September 16, 2011. Mother had four negative tests and one
excused test. Mother had not yet
enrolled in counseling for substance abuse.
Mother missed only two of her
weekly visits with Rachel. One of these
was because mother was visiting her own mother out of state. The visits were described by the social
worker as of adequate quality and concluded without incident. Mother had received six months of reunification
services. The department concluded that
mother had made minimally acceptable efforts toward compliance with her plan
and had minimally availed herself of reunification services. The department recommended continued
reunification services. On October 20,
2011, the juvenile court found that mother was in minimal compliance with her
reunification plan and ordered continued reunification services for her.
A review hearing was held on May 9,
2012. The department reported that
during the second six-month review period mother failed to enroll in a
counseling for parenting program and it did not appear mother was complying
with mental health counseling for a majority of the review period. Mother requested a reassessment of her mental
health status on February 8, 2012, “so that she could begin taking her
medications.†Mother was residing in a
sober living home. Her participation
there was described as minimal and her progress as satisfactory. Mother was expected to complete the program
in mid-October 2012. Mother had three
negative drug tests during the review period and three drug tests that were
positive or presumptively positive for her failure to test.
Mother failed to consistently visit
Rachel during this review period, missing seven visits due to illness, failure
to show up, or being out of town. When
mother did visit, the visits were of good quality. The department recommended termination of
mother’s reunification services because after 12 months, mother had only
recently begun to participate in counseling for substance abuse and was not
enrolled in a counseling for parenting program.
The department noted that mother failed to yet demonstrate sustained
sobriety.
On May 9, 2012, the juvenile court
found mother had made only minimal progress toward alleviating or mitigating
the causes of the child’s placement out of mother’s home and only minimally
acceptable efforts to avail herself of reunification services. The court ordered termination of mother’s
reunification services and set the cause for hearing pursuant to section
366.26. The court ordered supervised
visitations every other week for one hour.
Hearing Pursuant to Sections 388 and 366.26
In August
2012, mother filed a petition for reconsideration of the juvenile court’s order
terminating her reunification services.
Mother stated that she had completed nearly all of the components of her
plan, had been testing negatively for drug use, had visits with Rachel of good
quality, and a change in the court’s order would rekindle the parent-child
relationship.
The
department’s section 366.26 report stated that of 69 visits mother was eligible
to have with Rachel, mother attended 50 visits.
When the report was prepared, Rachel had not lived with her mother for
18 months. The visits were generally
described as positive and consistent.
Rachel, however, did not rely on mother to meet her daily physical and
emotional needs. The department
recommended termination of mother’s parental rights with a permanent plan of
adoption.
Rachel was described as a good
candidate for adoption because of her young age, absence of physical or
emotional problems, and the fact that her caretaker was willing and able to
commit to adopting her. Rachel had been
in the caretaker’s home for 17 months and the caretaker loved Rachel as though
she was the caretaker’s biological daughter.
Rachel had also established a bond with the caretaker. The social worker preparing the department’s
report stated that Rachel had a minimal visiting relationship with mother and
Rachel’s relationship with mother was not significant enough to cause Rachel
severe emotional trauma if the court terminated the parent-child
relationship.
The department filed a separate
report responding to mother’s section 388 petition on October 4, 2012. Mother reported that she was still living
with her father who remained her sole means of support. Mother stated that Rachel would have her own
room and mother would apply for Medi-Cal to insure that Rachel’s medical needs
would be met. Mother stated that she
felt ready to be a parent again.
After trying unsuccessfully to
enter mother’s residence for a week, the social worker entered it on September
21, 2012, and found a very strong, unpleasant stench in the residence that
smelled partly like insect spray. The
odor was noticeable throughout the residence.
Mother explained that the residence was recently sprayed for
roaches. The inside of the home was
otherwise neat and organized. One room,
however, was cluttered with items, dusty, and difficult to walk through. The social worker was not granted access to
the backyard, but from a window it appeared to be filled with all types of
damaged or unused items.
Mother was enrolled in a parenting
class in which she was an active participant.
Mother had a mental health assessment in April 2012. Mother reported symptoms of depression and
anxiety. The department had a letter
indicating mother had completed her psychiatric evaluation in June 2012 and had
a medication follow-up appointment in July 2012. As for substance abuse counseling, mother was
as of June 2012 in phase two of a treatment program and was making good
progress. Mother was scheduled to
complete the program in October 2012.
Mother had three negative drug tests in May and June of 2012. A hair sample provided by mother equivalent
to three months of growth indicated that mother had not consumed illegal
drugs.
The hearings on mother’s section
388 petition and on the section 366.26 proceeding were conducted on October 4,
2012. Mother’s counsel argued that
mother had changed and requested that the juvenile court reinstate mother’s
reunification services. Minor’s counsel
concurred with the arguments of mother’s counsel.
The juvenile court noted that the
case had been going on for over 18 months and, although mother had taken some
positive steps, she still had some issues.
The court denied mother’s section 388 petition, terminated mother’s
parental rights, and selected adoption as Rachel’s permanent plan, finding that
Rachel was likely to be adopted by clear
and convincing evidence.
DISCUSSION
Section 388 Petition
Mother contends the court erred in
denying her section 388 petition because she made a showing that her
circumstances had changed. We disagree.
A parent may petition the juvenile
court to vacate or modify a previous order on grounds of change of circumstance
or new evidence. (§ 388, subd.
(a).) The parent must also show that the
proposed change would promote the best interests of the child. (§ 388, subd. (d); Cal. Rules of Court, rule
5.570; In re Stephanie M. (1994) 7
Cal.4th 295, 317 (Stephanie M.).)
It was mother’s burden of proof to
show there was new evidence or there were changed circumstances that made a
change of the children’s placement in their best interests. (§ 388; Stephanie
M., supra, 7 Cal.4th at p.
317.) The parent need only make a prima
facie showing to trigger the right to proceed by way of a full hearing. (In re
Marilyn H. (1993) 5 Cal.4th 295, 310 (Marilyn
H.).) If the petition presents any
evidence that a hearing would promote the best interests of the child, the
court will order the hearing. (
415 (Jasmon O.).) The petition must be liberally construed in
favor of its sufficiency. (
The mandate
for liberal construction of a section 388 petition, however, does not entitle a
petitioner to avoid describing the changed circumstances or new evidence. Section 388 and the pertinent rule of court
(Cal. Rules of Court, rule 5.570) require the petition to allege changed
circumstances or new evidence that requires changing a prior order. (Jasmon
O., supra, 8 Cal.4th at p.
415.)
As the moving party, it was
mother’s burden of proof, by a preponderance of the evidence, to show there was
new evidence or there were changed circumstances that called for a change of
the previous order denying reunification and that reunification services would
be in the children’s best interests.
(§ 388; Stephanie M.,
The parent bears the burden of
showing, in a section 388 petition, that both a change of circumstance exists
best interests of the child. A petition
only alleging changed circumstances, which would lead to a delay in the
selection of a permanent home, to see if a parent could eventually reunify with
a child at some future point, does not promote stability for the child or the
child’s best interests. (
47.)
Once reunification efforts have
been terminated, the child’s interest in stability and permanency is a juvenile
court’s primary concern, outweighing a parent’s interest in reunification. (Marilyn
H., supra, 5 Cal.4th at p. 309.)
Children have a fundamental independent interest in belonging to a
family unit and they have compelling rights to be protected from abuse and
neglect and to have a placement that is stable, permanent, and that allows the
caretaker to make a full emotional commitment to the child. (Id. at
p. 306.)
We review the record in the light
most favorable to the judgment. (In
re Misako R. (1991) 2 Cal.App.4th 538, 545.) When a court rejects a detriment claim and
terminates parental rights, the appellate issue is whether the juvenile court
abused its discretion in so doing. (
1339, 1351.) To conclude there was an
abuse of discretion, the proof offered must be uncontradicted and unimpeached
so that discretion could be exercised in only one way, compelling a finding in
the appellant’s favor as a matter of law.
(Roesch v. De Mota (1944) 24
Cal.2d 563, 570-571; In re I.W. (2009)
180 Cal.App.4th 1517, 1528.)
Mother had a history of earlier
referrals to the department, as well as of methamphetamine addiction dating
back several years. Mother waited a
year, and after the court terminated reunification services, before trying to
take parenting classes and address her mental health issues. Mother waited a substantial amount of time
before addressing her drug addiction. Mother
seemed to have gained control of her drug problem by the summer of 2012, after
she had lost reunification services.
Mother had only recently become sober and did not demonstrate a
sustained period of sobriety.
It took the department a week to
gain access to mother’s home. Although
improved from its earlier filthy state, mother’s home smelled of insect spray,
had one room full of clutter, and debris in the backyard that made that area
unsafe for her child. The home was
apparently still being infested with cockroaches and was still not an ideal
environment for a young child. Also,
mother was still living with her father, a point that was an early concern of
social workers.
The juvenile court accurately
observed that mother still had issues.
Mother was changing her circumstances, but had failed to change her
circumstances as required for the court to grant her section 388 petition. For mother to have the juvenile court revisit
the issue of whether she was entitled to further reunification services, she
had to demonstrate more than changing circumstances. Mother failed to do so. We have little doubt that mother loves
Rachel. Mother, however, also failed to
show how it would be in Rachel’s best interests to maintain a relationship with
mother.
DISPOSITION
The
court’s orders denying mother’s petition pursuant to Welfare and Institutions
Code section 388 and terminating her parental rights pursuant to Welfare and
Institutions Code section 366.26 are affirmed.
name="_ftn1" title="">* Before
Detjen, Acting P.J., Franson, J., and Peña, J.
name="_ftn2" title="">[1] Unless
otherwise designated, all statutory references are to the Welfare and
Institutions Code.
