In re R.G.
Filed 2/27/13 In re R.G. CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re R.G., a Person Coming
Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
DENISE D. et al.,
Defendants and Appellants.
D061671
(Super. Ct.
No. J512149)
APPEALS
from orders of the Superior Court
of
County, Carol Isackson, Judge.
Reversed and remanded.
I
INTRODUCTION
Denise D.
(Denise) and Richard G. (Richard) appeal the juvenile court's order terminating
their parental rights to their son,
R.G., pursuant to Welfare and Institutions Code section 366.26. (Further statutory references are to the
Welfare and Institutions Code.) Denise
also appeals the juvenile court's order denying her petition for modification
under section 388, asking that R.G. be placed with her, or alternatively, that
she be granted further reunification
services.
We conclude
the juvenile court abused its discretion in denying Denise's section 388
petition and, accordingly, reverse that order.
In view of that conclusion, we need not address the parents' other
arguments challenging the trial court's order terminating their parental rights
under section 366.26. (
1407, 1416 ["In the chronology of these events, a fair hearing on the
section 388 petition was a procedural predicate to proceeding to the section
366.26 hearing and disposition."]; In re
Lauren R. (2007) 148 Cal.App.4th 841, 861 (Lauren R.) ["Because it is necessary to restore all parties to
their prior positions, the orders terminating parental rights are also
reversed"].)
II
FACTUAL
AND PROCEDURAL BACKGROUND
A
Denise has eight children, of whom
R.G. is the youngest. Her oldest child
is now an adult and was never a dependent of the juvenile court. The next three children, all girls, were the
subjects of Denise's first dependency case, due to her drug use. Denise participated in drug treatment and
successfully reunified with her children.
However, she later faced homelessness and voluntarily agreed that the
girls be placed with a paternal aunt under a plan of guardianship. In 2004, Denise gave birth to twin boys, and
drugs were again found in her system.
Denise agreed to participate in parenting classes and drug treatment
programs, but had difficulty following through with her case plan. Another daughter was born in 2007 with drugs
in her system. Although Denise
thereafter successfully completed most of her case plan objectives with respect
to this child, she resumed the use of drugs (particularly marijuana and
methamphetamines), and this daughter now resides with relative caregivers under
a permanent plan of guardianship. R.G.,
the subject of this appeal, was born in November 2009.
The record is not entirely clear
where or with whom R.G. lived during the first year of his life. Richard claimed that R.G. lived with him for
"weeks at a time" during that period.
The record also indicates, however, that Denise and her children were
"chronically homeless." In
November 2010, the twin boys were taken to Polinsky Children's Center after
Denise failed to pick them up from school.
A voluntary case was opened at that time to ensure the safety and
welfare of the twins. Thereafter,
however, it appeared Denise was not taking advantage of the services offered to
her. The twins continued to have
numerous absences, and were left at school for excessive periods of time. Denise failed to give her address to the
Agency and failed to take a drug test upon the Agency's request. The twins reported being hungry because they
had no food, and they were afraid for their lives where they lived.
On January 26, 2011, the
Agency (Agency) filed a petition under section 300, subdivision (b) on
R.G.'s behalf, alleging, based on the foregoing events, that there was a
substantial risk he would suffer serious physical injury or illness due to
Denise's failure or inability to adequately supervise and protect him and his
twin half-brothers. The Agency reported
that Denise denied using drugs at the time of R.G.'s detention. However, based on Denise's extensive history
of drug use and relapse after treatment, the Agency was concerned that she may
have been using, which was contributing to the neglect of the children.
At the onset of R.G.'s dependency,
Richard, R.G.'s father, was incarcerated and due to be released in May 2011. Richard has a lengthy criminal record and a
history of domestic violence.
The
juvenile court sustained the allegations of the Agency's petition regarding
R.G. and declared him a dependent on March
2, 2011. The court found
Richard to be R.G.'s presumed father.
R.G. was placed in foster care separate from his twin half-brothers, but
the court found that visitation with his brothers would not be detrimental to
R.G., and ordered sibling visitation.
The court granted Denise supervised visitation, and ordered that
reunification services be offered to both parents.
In
connection with the six-month review hearing, the Agency reported that R.G.
remained in the foster home where he had been placed in January, but his
caregiver had advised the Agency that she would not be an option for permanent
placement. R.G.'s twin half-brothers had
been removed from their foster home in July 2011 due to a reported incident of
inappropriate behavior, but prior to that time, the boys had been having
successful weekly visits with R.G., who responded well to his brothers. Notwithstanding his earlier statements
asserting parental rights, Richard told the Agency after his release from
prison that he did not wish to participate in any reunification services. However, he later told the social worker that
he changed his mind again when he saw that Denise was not "taking care of
business." He participated in
weekly visitation with R.G. between September 2011 and March 2012.
The Agency reported that Denise had
been looking for employment, but had not yet obtained work. She had been having transportation and
medical issues that negatively impacted her ability to participate in services
and maintain visitation with R.G. She
was discharged from her parenting class due to noncompliance, and had not
demonstrated to the Agency that she was clean and sober. Denise's visits with R.G. were inconsistent,
but when they did occur, Denise consistently demonstrated a parental role,
encouraged R.G.'s learning and development, interacted with and responded to
R.G. appropriately, showed empathy, and put R.G.'s needs ahead of her own.
The Agency recommended that
reunification services for both parents be terminated, that sibling visitation
continue, and that a section 366.26 hearing be set to select and implement a
permanent plan for R.G.
On August 4, 2011, Denise called the social worker and
informed her that she believed she needed residential drug treatment in order
to be successful with her services, but she had difficulty following up with a
substance abuse specialist to get referrals to such programs. She finally met with the specialist on August 29, 2011, and was placed on
the waiting list for Serenity House. She
began her residency there on September
28, 2011, with a recommended four- to six-month treatment
plan.
The contested six-month review (set
to coincide with the six-month review in the twins' case) was held on October 7, 2011. Although Serenity House reported that Denise
was in full compliance with her treatment program as of that date, based on her
history, the Agency believed Denise had not yet mitigated the factors that
brought R.G. into dependency, and affirmed its prior recommendations. The juvenile court followed the Agency's recommendations
and set a section 366.26 hearing.
B
Hearing
After her
entry into Serenity House, Denise began regular, supervised two-hour visits
with R.G., during which she was attentive to his physical and emotional needs
and demonstrated important parenting skills.
For example, she interacted with him through conversation, physical play
and pretend play. When R.G. became upset
or threw a tantrum, Denise was able to divert him with a toy or a tickle. She brought him food and juice and a gift at
Christmas. When R.G. was ill, she spoke
with the social worker about the cause, and cut one visit short, asking that
his caregiver take him to the doctor.
She held R.G. in her arms and made him comfortable with a blanket while
he fell asleep. R.G. easily and
excitedly went to Denise at the start of each visit, enjoyed his time with her,
and displayed no distress at leaving her.
By all
measures, Denise did very well at Serenity House. She consistently tested negative for
substances after her arrival. She
participated in parenting classes and individual weekly therapy sessions. She was very active in group sessions,
followed through on her assignments, and put a great deal of thought into her
participation, freely sharing her insights about addiction, recovery and
parenting. Her counselor stated that
Denise had "learned to change her negative thinking into positive
thinking" and had "grasped the solution to recovery." Although Denise completed her inpatient
treatment as of February 2012, she stayed at Serenity House while applying for
sober housing and seeking employment.
She continued to attend 12-step meetings and group sessions, volunteered
for extra duties, served on the Serenity House council, and acted as a counselor
and mentor for new clients entering Serenity House. Her treatment counselor described her as
"an inspiration to those in our community and a role model to her
peers."
Additionally, Denise made
significant progress with her case plan regarding the twins. She told the twins' social worker that she
was committed to sobriety, accepted responsibility for her past choices, and
recognized the need to stay away from the "bad influences" that
triggered her substance abuse in the past.
The Agency recommended in that case that services be continued for an
additional six months and that Denise begin unsupervised visits with the
twins. The court accepted those
recommendations.
Despite
this progress, the Agency's position in R.G.'s case remained one of skepticism
about Denise's long-term prospects. Its
concerns stemmed from Denise's history of repeated treatment attempts and
relapses, and an inability to provide a suitable living environment for her
children. Although the Agency commended
Denise for her recent success, it questioned Denise's ability to commit to
sobriety. R.G.'s young age was a
significant factor in the Agency's recommendations. He had been out of his mother's care for over
a year, and although his visits with Denise had been successful, the Agency
concluded the parent-child relationship was not so significant as to outweigh
the benefits R.G. would obtain from permanency.
The Agency also concluded that Richard's parental relationship with R.G.
was not significant or valuable enough to outweigh the benefits of permanency,
particularly given Richard's long and sometimes violent criminal history, his
vacillation on reunification with R.G., and his demonstration of some
questionable parenting techniques during visits with R.G.
The Agency therefore recommended
termination of parental rights and adoption as R.G.'s permanent plan. The Agency considered R.G. to be adoptable,
but he was not then in a prospective adoptive placement. He had bonded with his caregiver, but she had
stated she was unwilling to adopt him.
At that time an adoptive placement had not yet been identified.
At the
March 19, 2012 pretrial status conference preceding the section 366.26 hearing,
Denise filed a section 388 petition seeking modification of the juvenile
court's finding that she had not made significant progress with her case plan
and its ruling that reunification services be terminated. Denise requested, in light of her progress
over the prior months, and also the fact that she was in the process of
reunifying with R.G.'s twin brothers, that the court either place R.G. with her
or reinstate reunification services to allow R.G. to transition into her
care. At that same hearing, R.G.'s twin
brothers also moved under section 388 to request that the court recognize their
standing to assert the sibling relationship exception to R.G.'s adoptability,
under section 366.26, subdivision (c)(1)(B)(v).
The juvenile court granted the twins' request. It also found that Denise had made a prima
facie showing under section 388, allowing her to go forward and demonstrate the
changed circumstances warranting modification, while at the same time informing
her that she had an "uphill fight" in view of her history.
The
contested section 388 hearing was held on March 27, 2012. R.G.'s appointed counsel indicated she was
joining in Denise's section 388 petition to the extent it sought reinstatement
of services, and in the event that request was granted, to continue the 366.26
proceeding to the 18-month date. The
court then heard testimony from Denise's treatment counselor, from Denise and
from the Agency's social worker.
Denise's
counselor, who had daily contact with Denise during her treatment program at
Serenity House, stated that Denise completed all the requirements of her
treatment program, actively participated in parenting classes, group sessions
and 12-step meetings, and worked closely with her sponsor. Her spirituality-based programs were in the
community, and it was Denise's responsibility to transport herself to and from
those meetings. Denise was on the Serenity
House Council, which consists of women who are "role models" and can
help new clients in the program. She
testified that Denise remained at the residential home after completing her
treatment to learn additional skills to enable her to maintain sobriety, secure
employment and obtain housing. Serenity
House would assist her in those efforts, including providing living space that
could accommodate her children. Denise
was at that time on the waiting list for Genesis House, a program providing
transition housing.
Denise
related to the court the history of her substance abuse and her prior
dependency cases. She testified that
what had changed for her since then is that she had come to understand what she
needs to do to stay clean and sober and that she was willing to work hard at
her recovery. Before, she never followed
through with her treatment program, but this time she had done so. She discovered that she had to stay away from
the "old people and old places" that were triggers for her relapses
in the past. Denise also indicated that
growing older had helped her recovery because she cared much more now about
taking care of her health. She decided
to stay on at Serenity House to continue her recovery "until I am truly
ready to leave." Denise also
explained that the twins were in her care when R.G. was born, and they were
together for the first year of his life.
She explained the twins "really loved" R.G. and they had
played together all the time.
During his
testimony, the social worker handling R.G.'s case stated that although he
applauded Denise's recent efforts at recovery, he was concerned that she had
been living at a secure facility, has not yet obtained employment or housing,
and thus had not been functioning on her own and demonstrating that the factors
that compelled removal of her children had been ameliorated. He acknowledged there would be no risk to
R.G. if Denise were allowed to visit with him in the "supervised
environment" of Serenity House, but he would be concerned as to how she
would feed and transport R.G. The social
worker also testified that continuing sibling visitation would be beneficial
and not be detrimental to R.G.
The
juvenile court denied Denise's section 388 petition, explaining that Denise's
burden was to "show that circumstances have changed since October 7, 2011," but she had only demonstrated
that circumstances were "changing." (Italics added.) The court clarified that it
was not necessary for Denise to prove that she was "cured," was
"all better," or "out on her own, in her own housing, working,
taking care of all her children before I can find a change." It acknowledged, too, that Denise had
successfully completed treatment over five months and was addressing her
issues. However, the court emphasized,
Denise was still in "a protected setting" and therefore "had to
deal with no real stressors . . . hasn't had to deal with a
job, with housing . . . hasn't had children in her care
[or] had any experience of living in the real world." Given her extensive history of drug use and
failed treatment, the court concluded Denise "has not arrived anywhere
near that place yet where we could say we could trust, with some small level of
confidence . . . that it would be in the child's best interest
to either place him with her or give her more services." The court found there was "no
evidence" that it was in R.G.'s best interest "to gamble and say we
are going to place him with mom and hope that she is able to do what she needs
to do." Rather, given R.G.'s age
and the fact that he has been out of his parents' care for over a year, it was
in his best interest not to make him wait for permanence.
The section
366.26 hearing was held two days later.
The parties previously had stipulated that relevant evidence introduced at
the section 388 hearing could also be considered at the section 366.26
hearing. The court accepted the
stipulated testimony of the twins indicating that they cared for their brother,
wanted to keep seeing him, and did not want him to be adopted, at least by
someone they did not know. The Agency
reiterated its recommendation that parental rights be terminated and argued
that the beneficial parent-child and sibling exceptions to an adoption plan did
not apply. The juvenile court adopted
the agency's recommendation, found that neither exception applied, and selected
adoption as R.G.'s permanent plan.
III
DISCUSSION
A
Under
section 388, a parent, interested person or the dependent child may petition
the court to change, modify or set aside a previous order on the grounds of
changed circumstances or new evidence.
(§ 388, subd. (a).) The
petitioner requesting the modification has the burden to show, by a
preponderance of the evidence, that there is "a change of circumstance or
new evidence," and that the proposed modification is in the child's best
interests. (§ 388, subds. (a), (c);
In re Jasmon O. (1994) 8 Cal.4th
398, 415 (Jasmon O.).)
After
reunification services have been terminated, section 388 provides an "escape
mechanism" forestalling termination of parental rights by allowing the
court to consider a legitimate change in the parent's circumstances. (In re
Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.).) This
procedural mechanism, viewed in the context of the dependency scheme as a
whole, provides the parent due process while accommodating the child's right to
stability and permanency. (
continued out-of-home care is in the child's best interest. (Id.
at p. 310.) The parent may rebut
that presumption by showing changed circumstances that would warrant further
consideration of reunification. (
In
determining whether reunification is in the child's best interests, the
juvenile court should consider a number of factors, including: "(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." (
519, 532 (Kimberly F.).) This list is not meant to be exhaustive. (Ibid.)
We
review the grant or denial of a section 388 petition for an abuse of
discretion. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71.) While the abuse of discretion standard gives
the court substantial latitude, "[t]he scope of discretion always resides
in the particular law being applied, i.e., in the 'legal principles governing
the subject of [the] action . . . .' Action that transgresses the confines of the
applicable principles of law is outside the scope of discretion and we call
such action an 'abuse' of discretion. [Citation.]" (City
of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.)
B
The Juvenile
Court Misapplied Section 388
In this
appeal, we are presented with the difficult question of when a parent's changed
circumstances and a child's best interests combine to overcome the presumption
that, after a section 366.26 hearing has been set, a child's need for
permanency and stability takes precedence over a parent's interest in
reunification. (Marilyn H.,
310; see also In re Stephanie M.
(1994) 7 Cal.4th 295, 317.) The juvenile
court, in a detailed explanation of its reasoning, weighed what it acknowledged
to be Denise's successful steps toward recovery against her history of drug
abuse, failed past treatment efforts, and the fact that she had not long been
in recovery. It found that Denise's
circumstances, though "changing," had not "changed," and
that there was virtually no evidence demonstrating that it was in R.G.'s best
interests to "make him wait for permanence."
"It is
rare that a denial of a section 388 motion merits reversal as an abuse of
discretion." (See
undertaken. This is so particularly
where, as here, the juvenile court appears at first glance to have thoughtfully
considered all the evidence and correct legal criteria. Nevertheless, we conclude this is one of
those rare cases warranting reversal. On
closer examination of its ruling, we are of the view that the juvenile court,
while acknowledging the standards by which a "change of
circumstances" under section 388 is gauged, erred in applying those
standards to Denise's situation, in effect holding her to the very type of
evidential proof the court noted was not necessary for relief to be
granted. Notwithstanding the otherwise
thoughtful analysis of the juvenile court, this was an abuse of
discretion. (See City of Sacramento, supra,
207 Cal.App.3d at p. 1297-1298 [an abuse of discretion occurs not only
where the court's action "was utterly irrational," but also where the
court "is mistaken about the scope of its
discretion . . . [I]f the trial court acts in accord with
its mistaken view the action is nonetheless error; it is wrong on the
law"].)
When the juvenile court explained
the basis for its section 388 ruling, it began by stating that the law required
Denise to show only "a reasonable
change in the circumstances ─ in the ability . . . of
the mother to address the problem that led to the dependency in the first place." (Italics added.) The court observed that Denise did not have
to prove she was "cured" of her substance abuse issues, or was
functioning successfully "out on her own," holding down a job, and
"in her own housing," to demonstrate the necessary "change of
circumstances." Yet, in denying
section 388 relief, that is precisely the evidence the court deemed was
missing, when it emphasized that Denise had been living "in a protected
setting" at Serenity House, with "no real stressors." "She hasn't had to deal with a job, with
housing. She hasn't had children in her
care." Absent evidence of this type
of "experience of living in the real world," the court found, Denise
had not demonstrated she had reached the point where the court could
"trust, with some small level of confidence," that it would be in
R.G.'s best interest to at least reinstate services. The court abused its discretion in so
concluding because it raised the legal bar too high, and as a result, failed to
apprehend that Denise's evidence satisfied what the court appeared to recognize
at the outset was the correct legal standard.
problem that led to the dependency, the reasons for its continuation, and the
degree to which it might be, or actually has been, resolved or
ameliorated. (Kimberly F., supra,
56 Cal.App.4th at pp. 530, 532-533.)
Denise acknowledged her long history (about 15 years) of substance abuse
─ without question, a serious problem that is an all too common reason
children are placed in the dependency
system. (See id., at p. 532 [citing drug abuse as one of the more
"intractable" problems in dependency proceedings].) Denise also admitted to failed attempts at
recovery in the past. Although the
Agency and the juvenile court applauded Denise for her success at Serenity
House, her decision to enter that program came nearly eight months into R.G.'s
dependency case. Given her past pattern
of use, successful completion of a treatment
program, and then relapse, the court and the Agency concluded that she had
not been in recovery long enough to instill any
degree of confidence, however small, that she could sustain it well into the
future ─ hence their view that Denise was "changing," but not
"changed."
This
conclusion is belied by the evidence.
The problem that brought R.G. and his twin brothers into dependency was
Denise's repeated drug use and the resulting neglect of her children. The law required the juvenile court to
determine whether Denise's circumstances had changed to the point where she had
"reasonably" demonstrated "an ability" to address that
problem. (See Kimberly F., supra,
56 Cal.App.4th at pp. 532 [court should consider "degree to which the
problem may be easily removed or ameliorated"].) The significant factor supporting section 388
relief in this case ─ and the one that, in our view, the juvenile court
failed to grasp ─ is not merely that Denise was able to stay clean and
sober for a few months, but rather, that she had fundamentally altered her approach to recovery. As Denise testified, she realized that prior
out-patient programs were not successful because she remained exposed to the
circumstances that triggered her use.
Upon entering Serenity House, she was able to surround herself with
counselors, take full advantage of programs, and obtain and utilize a
sponsor. Critically, Denise accepted
responsibility for the bad decisions of her past, identified the reasons for
her prior relapses and had consciously worked to avoid the "bad
influences" that threatened her prior attempts at continued recovery. Her counselor remarked that she had
"grasped the solution to recovery"
The Agency presented no evidence contradicting that evaluation. Further, Denise had become a "role
model" and "inspiration" to other women in the program, and an
active participant in all activities, including volunteering for various
tasks.
This uncontradicted evidence
demonstrates that Denise had not simply been going through the motions of
recovery, but rather, finally appeared to have discovered the keys to its
continued success. Denise showed far
more here than mere sobriety over a period of months. She demonstrated a true "commitment to
sobriety," the existence of which the Agency had questioned, by taking the
very steps that were absent in her past attempts at treatment. To be sure, relapse is always a risk for
recovering addicts. (See
Cal.App.4th 415, 423 (Clifton B.)
["relapses are all too common for a recovering drug user"].) The Agency correctly notes that a number of
courts have denied section 388 modification where the evidence showed a pattern
of use, treatment and relapse. (See,
e.g., In re Amber M. (2002)
103 Cal.App.4th 681, 686 (Amber M.);
Clifton B., supra, 81 Cal.App.4th at p. 423; In re Casey D. (1999) 70 Cal.App.4th 38, 48-49 (
careful consideration, it must be viewed in context of the overall record, and
each case must be determined on the basis of its own facts. Such evidence does not and should not give
rise to the equivalent of an irrebutable presumption against reinstating
services. Yet, the Agency in this case
appears to have taken something very close to that position, arguing that R.G.
"needed stability and permanency now, not after more futile service offerings."
(Italics added.) In other words, in the Agency's view, Denise already
was a lost cause, and because of her history, any additional services ─
even for just enough time to allow Denise to demonstrate the ability to
maintain a sober lifestyle outside the "protected" Serenity House
environment─would be futile. The
juvenile court similarly concluded that in light of Denise's history, and the
relatively short period of her sobriety preceding the section 388 petition, it
was too much of a "gamble" to grant any additional services.
Section 388 was designed to be an
"escape mechanism" ─ in effect, a last chance ─ to avoid
termination of parental rights. (See
It seems tailor-made for those parents who do not come to grasp the
real-life consequences of the dependency process until late in the day. Indeed, section 388's function of providing a
last-minute reprieve from section 366 termination would seem pointless if a
parent were first required to prove ─ as both the Agency and the juvenile
court here apparently assumed ─ that he or she has sustained sobriety
over an extended period of time, because such proof presumably would have
forestalled termination of services in the first place. If section 388 is to have any substance, a
parent should not be written off merely because she has struggled with
addiction and relapse in the past. This
is particularly so when, as here, the preponderance of the evidence indicates she
finally appears to have turned the corner, accepted responsibility for past bad
decisions, gained true insight into the nature of her addiction and its effect
on her children, and actively taken steps to better herself and provide for her
children.
One of these steps was Denise's
decision to stay on at Serenity House after completion of her treatment
program, until she is able to find employment and affordable housing. The juvenile court apparently viewed this as
a negative factor in the section 388 analysis, interpreting Denise's desire to
stay in a positive environment that strengthens her recovery as evidence that
she has not yet demonstrated an inability to deal with the "real
world." On the contrary, when
considered in the context of the record as a whole, we view her decision to
stay at Serenity House as further evidence that Denise has made a significant
shift in her thinking about her addiction, and recognized the importance of
solidifying her recovery and strengthening her life and parenting skills
fact had begun the process of addressing real world issues ─ for example,
by seeking employment on a regular, consistent basis, applying for affordable
housing, and also by attending community church services and Bible study
classes twice a week.
On the foregoing record, the
juvenile court's finding that Denise's circumstances had not changed within the
meaning of section 388 is not supported.
If anything, the record overwhelmingly supports the view that Denise had
learned the hard lessons of her past and had developed the insight, maturity
and skills to stay on the path of recovery, thus distinguishing her situation
from other cases cited by the Agency.
(Cf. In re B.D.
(2008) 159 Cal.App.4th 1218, 1228-1230 [mother had failed to avail herself of
services, "did not understand the impact her inability to provide structure,
stability and consistency had on the children," and was dependent for
support on a person with a violent history]; Amber M., supra, 103
Cal.App.4th at pp. 686 [mother completed treatment program but failed to
demonstrate empathy for children or an understanding of their psychological
difficulties]; Clifton B.,
pp. 420-421 [father could not maintain sobriety even after children were
returned to him after 12-month review].)
It is not
enough, of course, that Denise's circumstances have changed. She must also show that it would be R.G.'s
best interests to grant relief under section 388. (See § 388, subd. (c);
8 Cal.4th at p. 415.) The
court found, there was "not any evidence other than mother's nice
relationship with the child . . . that it would be in
[R.G.'s] best interest to either make him wait for
permanence . . . or to place him with the mother at this
point." Of particular significance
for the trial court was R.G.'s age. At
the time of the section 388 hearing, R.G. was about two and a half years old,
and had been out of his mother's care since January 2011. The Agency argued, and the trial court
apparently agreed, that stability and permanency were especially important for
a young child, and Denise had failed to show that her interest in reunification
outweighed R.G's interest in obtaining a permanent home.
The second Kimberly F. factor requires consideration of "the
strength of relative bonds between the dependent children to both parent
and caretakers." (
inconsistent in her visits with R.G., but once she began her program at
Serenity House, her visits were consistent and entirely successful. She displayed appropriate parental skills,
and loving maternal care. R.G.
enthusiastically went to his mother and enjoyed his visits with her.
The evidence thus showed that a
bond had begun to form, or re-form, between R.G. and Denise. R.G. had also bonded with his caretaker, but
importantly, that individual was not able to adopt R.G. As of the date of the section 388 hearing, no
permanent adoptive placement had been arranged, although it appeared a
potential placement had been identified.
The social worker testified that allowing continued supervised visits
with Denise would not be detrimental to R.G.
In fact, the only concerns the social worker specifically identified
were whether Denise would be able to "feed" R.G. and "get him
from point A to point B." The
undisputed evidence showed, however, that Denise provided food for R.G. at
every visit and had demonstrated an ability to transport herself to and from
community programs, such as church services.
Of particular significance in this
case is that Denise was in the process of reunifying with her twin sons. The Agency concluded in February 2012 that,
although it would be premature at that time to place the boys with her, Denise
had made "significant progress in resolving the problems that led to the
[twins'] removal from the home, and has demonstrated the capacity and ability
both to complete the objectives of [her] treatment plan and to provide for the
[twins'] safety, protection, physical and emotional well-being and special
needs." Assuming she could maintain
that progress, the Agency believed there was a "substantial
probability" of reunification with the twins. The Agency therefore recommended continuing
services and unsupervised visits between Denise and the twins. There was undisputed evidence that R.G. had
enjoyed successful visits with his brothers; that the boys cared for R.G. and
did not want him to be adopted; and that, according to the social worker,
maintaining the sibling relationship would be "beneficial" and not
detrimental to him.
This evidence shows a family unit
in the process of reunification, and a parent who, although late in committing
to recovery, had made a dramatic turnaround in a short period of time and was
demonstrating skills necessary to meet her children's needs. Particularly where there was not yet a
potentially adoptive placement and therefore no competing bonds with another
caregiver, and where there was no discernable risk to continuing the
mother-child relationship, the evidence strongly favored continued development
of the biological family bonds. (See,
e.g. In re Vanessa P.
(1995) 38 Cal.App.4th 1763, 1771 ["The purpose of dependency court
proceedings is to reunite families."].)
In the view of the juvenile court,
however, two factors in particular militated against a finding that additional
services or immediate placement with Denise would be in R.G.'s best
interests. The first was that not enough
time had elapsed for the court to be assured that Denise would not begin to use
again. As explained previously, we do
not believe this factor, when considered in light of all the evidence and the
purposes of the statute, necessitates denial of section 388 relief. The second factor of particular concern to
the juvenile court was R.G.'s young age.
"Childhood does not wait for the parent to become
adequate." (Marilyn H., supra, 5
Cal.4th at p. 310.) It was
appropriate for the juvenile court to consider this factor, notwithstanding
Denise's likely reunification with her older sons, because the standard is more
rigorous when very young children are involved.
(See, e.g., Casey D.,
pp. 48-49 [16-month-old child's age a factor in denying section 388
petition, because child that young is not "able to protect herself if the
parents should relapse, in contrast to her older sister"].) But again, this factor must be viewed in
context. Unlike the mother in
demonstrated a high level of commitment to a sober lifestyle and the ability to
put her children's needs first. (
participated in all the programs and services offered at Serenity House,
presented her "autobiography" ─ a " 'significant part
of the recovery process' " (id.
at p. 43) ─ successfully completed her inpatient treatment plan, was
actively involved with a 12-step program, and was utilizing her sponsor. So successful was she that she became a
"role model" and "inspiration" to other residents. (Cf. id.
at p. 43, 48 [mother was not working on 12-step program and had not yet
written her autobiography].)
Additionally, Denise had made the decision to stay on at Serenity House,
where her children could stay with her or at least continue to visit with her,
thus ensuring that the children would have a safe environment and their needs
could be met, and Denise could continue to strengthen her parenting skills so
as to lessen the danger of relapse after she went out into the community on her
own.
We do not suggest that the juvenile
court here was required to return R.G. to Denise's care based on the evidence
presented. Although Denise requested
that relief, she alternatively requested reinstatement of services. R.G.'s counsel supported the petition, but
only to the extent it sought additional services. We hold only that based on the record
evidence, the juvenile court's finding that there was no evidence that any
section 388 relief would be in R.G.'s best interests cannot be sustained.
For all the foregoing reasons, we
conclude the juvenile court abused its discretion in denying Denise's section
388 petition, and in failing to order additional services.
IV
DISPOSITION
The order
denying Denise's section 388 petition is reversed, and consequently, the
order terminating Denise's
and Richard's parental rights is also necessarily reversed. (Lauren R.,
supra, 148 Cal.App.4th at
p. 861; see, Cal.
Rules of Court, rule 5.725(a)(2) & (g) [with limited exceptions, court may
not terminate parental rights of only one of two surviving parents].) The matter is remanded to the juvenile court
for further proceedings consistent with this opinion.
McINTYRE, J.
I CONCUR:
BENKE, Acting P. J.
HALLER, J., dissenting:
The
majority sets forth persuasive reasons why in its view Denise's modification
petition had merit. However, the trial
court also set forth well-reasoned grounds that support its decision to deny
the petition. As a reviewing court, we
must defer to the trial court's findings that are supported by the record.
In a
thoughtful oral ruling, the court referenced Denise's "very serious"
drug history, along with a history of "multiple dependencies, multiple
removals of children, multiple relapses, [and] multiple treatment
programs." The court recognized the
importance of comparing the severity of Denise's original problem to Denise's
progress in addressing that problem and concluded Denise is just
"beginning to give up her life as an addict." The court was particularly concerned that all
of Denise's progress had taken place in a protected setting where her ability
to cope with parental responsibilities, housing and employment had not been
tested and thought it important that Denise herself was "not ready to
leave the protection of Serenity House."
The court
was mindful that the Legislature has set forth different considerations and
time constraints for children under the age of three, noting this is a critical
time period in a young child's life. The
court found that Denise had failed to establish it would be in R.G.'s best
interest to place him in Denise's care or delay permanency for six months while
Denise was given additional services.
Undoubtedly,
this was a close case and Denise's progress was impressive. But, in my view, because the trial court's
factual findings are supported by substantial evidence and the trial court
considered appropriate legal factors in making its decision, I cannot say the
trial court abused its discretion.
Accordingly, I would affirm the trial court's decision denying Denise's
section 388 petition.
HALLER, J.
