In re R.M.

Filed 6/20/08 In re R.M. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County. Emily A. Stevens, Judge. Affirmed.

Harry Zimmerman, under appointment by the Court of Appeal, under the California Appellate Project, for Appellant.

Roni Keller, under appointment by the Court of Appeal, for Respondent, J.L.

No appearance for Plaintiff and Respondent.

Appellant R.M. appeals from an order of the juvenile court which (1) found that return of his children to their mother, respondent J.L., did not create a substantial risk of detriment to their safety, protection or physical or emotional well-being; and (2) denied his request under Welfare and Institutions Code section 388 for primary custody.^[1] We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Voluntary Family Maintenance

Appellants children, R.M. and Mary Jane L., came to the attention of the Department of Children and Family Services (DCFS) over four years ago in March 2004, when Mary Jane was born suffering from exposure to amphetamines. At the time, R.M. was approximately 15 months old. Appellant was incarcerated, with a release date of May 2006.^[2]

Initially, the childrens mother, J.L., was cooperative with efforts to deal with her substance abuse problem. She agreed to participate in the family preservation program and a voluntary family maintenance plan. But in September 2004, after six months of J.L.s noncompliance with the plan and positive or missed drug tests, DCFS filed a petition seeking removal of the children from her care.^[3]

B. Reunification Period

As sustained, the petition alleged that Mary Jane was born with a positive toxicology screen and that both children were at risk due to J.L.s substance abuse.^[4] J.L. did not contest the petition.

The case proceeded through the normal review stages albeit at a protracted pace. At the time of the first review hearing in April 2005, the caseworkers report showed that J.L. had not enrolled in any programs, had tested positive for drugs, and had been briefly incarcerated. At the hearing, J.L. informed the court that she had recently enrolled in a suitable program, and the court gave her additional time to comply. Appellants situation was unclear. The caseworker had yet to contact him or determine what resources were available to him. Moreover, because he was neither married to nor residing with J.L. at the time of Mary Janes birth, his parental rights as to her were unresolved pending the results of court-ordered DNA testing.^[5]

By the time of the next review hearing in June 2005, J.L. was no longer in communication with the caseworker. At the hearing, J.L. informed the court that she had been discharged from her program after being arrested, but had re-enrolled. DCFS recommended that reunification services be terminated as to J.L. The court declined to do so, finding [i]ts in the [children]s best interests to allow the mother to work on getting the children back, given that shes in her programs and had made the effort twice. DCFS recommended continuation of reunification services as to appellant, something of a misnomer as appellant had not yet formally received services. Appellant was participating in a number of parenting and counseling programs in prison on his own. The court ordered reunification services for appellant.

At the time of the 12-month review hearing on October 26, 2005, the caseworker reported that J.L. had been enrolled in a new outpatient drug program, but had had two positive drug tests. J.L. also reported weekly counseling sessions, and participation in a weekly anger management program and parenting class. Appellant was still incarcerated. He provided proof of completion of a number of programs attended in prison, including a parenting class, an anger management program and a 12-step study workshop, and also provided proof of ongoing participation in a personal growth anger management program and a program of criminals and gang members anonymous. Despite their progress, DCFS recommended terminating reunification services with respect to both parents. The court instead extended the reunification period, in part because the October hearing was the first time appellant had been transported to court.

The 18-month review hearing was held in May 2006, approximately two months late.^[6] Appellant, just released from prison, was present. After his release, he had immediately begun a program at the CLARE Adult Recovery Home and was attending a 12-step group. The court stated that appellant did everything he could do and everything I asked him to do, but that it doesnt matter because he had to be out of custody for a sufficient period to demonstrate that he has made sufficient progress to turn his life around and not engage in the kinds of activities that caused him to be incarcerated in the first place. Acting in accordance with DCFSs ongoing recommendation, the court terminated reunification services with respect to both parents. At the same time, it ordered unmonitored visitation for appellant.

C. Childrens Status During Reunification Period

During the reunification period, the childrens home lives were far from stable. Initially sent to foster care, they went to live with their maternal aunt, Carmen L., sometime prior to October 2004. In June 2005, they were returned to foster care when Carmen lost her home. In February 2006, the caseworker began making arrangements for placement with the paternal grandmother. On April 17, 2006, J.L. petitioned the court to transfer custody to the maternal grandmother.^[7] The petition stated [the] current plan of moving minors to paternal grandmother is not in [the] childrens best interest as she has not visited them and has not even met the child Mary Jane. The court denied the petition. In the May 2006 report prepared in advance of the 18-month review hearing, DCFS recommended that the court proceed with the permanent plan of adoption for [the] children . . . with paternal grandmother . . . . However, at that point, the children were still in foster care and had not yet begun to live with their paternal grandmother. At the first permanent plan hearing in October 2006, although the children had finally been placed with their paternal grandmother, DCFS announced that it intended to conduct home studies for both grandmothers.

D. J.L.s Section 388 Petition

On October 20, 2006, J.L. filed a section 388 petition requesting return of custody, unmonitored visits, or reinstatement of reunification services. The petition alleged that J.L. had completed parenting classes and a substance abuse program and had been testing clean since July.^[8] It further alleged that she had visited the children regularly throughout the time they had been in DCFS custody and that they were very attached to her.^[9] The petition noted that the home studies were not yet complete, so that adoption could not proceed in any event. The childrens attorney joined in appellants request for further reunification services.

The court ordered J.L.s petition set for hearing. Responding to the petition, the caseworker stated that J.L. was not capable of providing food, shelter and medical care for the children, as she had no residence or job, and had not demonstrated the ability to live independently. In addition, J.L. had not enrolled in an aftercare program and had never progressed to unmonitored visits with the children. The caseworker did not dispute that J.L. had completed a substance abuse program and parenting classes and had tested free from drugs since July.

In December 2006, the court, finding that J.L. had complied with substantially all of the reunification requirements, had tested clean for a substantial period and had regularly visited the children, granted additional reunification in accordance with her petition for modification.^[10]

At a status hearing in February 2007, the caseworker reported that J.L. was making only a minimal effort to seek work and was subsisting on general relief. However, she continued to test drug free. In addition, she was attending school and Narcotics Anonymous.^[11] DCFS recommended continued reunification services for J.L., and the court so ordered.

E. Appellants Section 388 Petition

Three months later, in May 2007, appellant filed a section 388 petition. The petition asked that the court provide reunification services to him so that he could have the opportunity to obtain custody of the children. The court set the matter for hearing.

The next hearing, on June 13, 2007, was not limited to appellants petition, but also represented a review hearing on J.L.s reunification efforts. (See  366.21, 366.22.) The caseworker acknowledged that appellants visitation with the children had been consistent since his release. There had been no problems during visitation and the children were attached to him. However, the caseworker expressed concern because the woman with whom appellant was living was an ex-felon. He also expressed concern about J.L.s home, describing it as untidy and disorganized, and with J.L. herself who appeared to be doing little to improve her situation. J.L. informed the court that she had obtained her G.E.D. and had enrolled in beauty college. The court found that both parents were in compliance and that there was no longer reason to deny them custody of the children. It ordered unmonitored visits for J.L., and put the matter over to resolve issues with respect to J.L.s housing and appellants childcare arrangements.

By the time of the next and final hearing on June 29, 2007, the case worker had inspected J.L.s housing. He found it in need of organization and cleaning but not to an extent in which safety hazards were an issue, and advised her of recommended corrective measures. Appellants home was found to be clean, organized and free of any child safety concerns and well-stocked with food. Appellant reported he had ended his relationship with his former girlfriend, the ex-felon. DCFS recommended release of the children to both parents joint custody, and that their primary residence be with J.L. At the hearing, DCFSs counsel explained that the recommendation was based not on J.L. being a better parent than appellant, but on the ease of transition for the children who would be able to continue going to the same school and daycare as before. The childrens attorney joined in DCFSs recommendation and stated that the children had expressed the desire to live with J.L. and their maternal grandmother. Appellant opposed. His counsel contended that appellants circumstances were superior because he had a large support system, including daycare available at work, and that his home environment was more stable. He expressed concern about J.L.s inconsistency and contended the children were not in the best condition when returned from visits with maternal relatives.

The court ruled in accordance with the recommendations of DCFS and the childrens attorney. The court did not terminate jurisdiction, but ordered a family preservation referral. (See Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 311 [juvenile court has discretion at 18-month review hearing to enter order returning child to home of parent while continuing court supervision and services].) Appellant noticed an appeal from the courts order.

DISCUSSION

A. Standard of Review

This is an appeal from a partial denial of appellants section 388 petition for modification.^[12] The applicable standard of review for an appeal from a ruling on a section 388 petition is abuse of discretion. (See, e.g., In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Michael B. (1992) 8 Cal.App.4th 1698, 1704.)

As the juvenile court noted, the June 29, 2007 hearing was also in the nature of an 18-month review hearing under section 366.22 because the court had previously ordered extended services for J.L. At an 18-month review hearing, unless the court finds by a preponderance of the evidence that returning the child to the physical custody of his or her parents would create a substantial risk of detriment to the childs safety, protection or physical or emotional well-being, the court must order the child returned. (Bridget A. v. Superior Court, supra, 148 Cal.App.4th at p. 307; accord In re Nicholas H. (2003) 112 Cal.App.4th 251, 266 [Sections 366.21(f) and 366.22(a) require the juvenile court to remove the dependent child from the foster care placement and return him or her to the physical custody of a parent or guardian unless it finds that returning the child would create a substantial risk of detriment to the childs health, safety, or well-being.].) The burden is on DCFS to show detriment. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249; Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1748.) A juvenile courts finding of detriment must be supported by substantial evidence. (Rita L. v. Superior Court (2005) 128 Cal.App.4th 495, 504; Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1327-1328, 1341.) A juvenile courts finding of no detriment must also be supported by substantial evidence. (See In re Sheila B. (1993) 19 Cal.App.4th 187, 199.) When applying the substantial evidence standard to a juvenile courts negative finding -- that the evidence does not support a finding that returning the child to the parent would create a substantial risk of detriment -- we affirm the courts determination absent indisputable evidence of detriment, evidence no reasonable trier of fact could have rejected . . . . (Id. at pp. 199-200.)

B. Finding of No Detriment

Appellant contends that the evidence did not support the courts finding that return of the children to J.L. would not be detrimental to their physical or emotional well being.^[13] To support his contention, appellant relies primarily on J.L.s conduct during the six months of voluntary family maintenance in 2004 and during the reunification period which lasted until May 2006. He points out she had done nothing in the first 18 months of reunification services.

Without question, during the initial phases of intervention, J.L. was noncompliant with DCFS efforts to alleviate her substance abuse problem. More relevant for purposes of this appeal, however, is the period that preceded the courts June 29, 2007, order. In her petition, J.L. established that she had, on her own and without DCFS assistance, completed a substance abuse program and had remained consistently drug free since July 2006. In addition, she had found stable housing and had undertaken other efforts to put her life in order. Her home was not perfect; it was in need of cleaning and organization, but in the final inspection, the caseworker found no safety violations. No evidence contradicted that J.L. had maintained a drug-free existence for nearly a year. No evidence contradicted that she had consistently visited the children and that they were attached to her. To the contrary, the childrens attorney reported that the children had expressed a preference for living with her.

In order to regain custody of her children on a finding of no substantial detriment or risk, J.L. was not required to be perfect. (See Jennifer A. v. Superior Court, supra, 117 Cal.App.4th at p. 1346 [mothers occasional use of alcohol and marijuana outside the presence of her children did not justify finding of detriment, where original detention not based on substance abuse]; Rita L. v. Superior Court, supra, 128 Cal.App.4th at pp. 504-506 [single dirty drug test from prescription medication insufficient basis to support termination of reunification services].) At the time of the hearing, J.L. was in compliance with DCFS requirements, was drug free, and had suitable housing. DCFS and the childrens attorney agreed that under the circumstances, return to J.L. would not be detrimental to the childrens health or well-being. The courts findings that return of the children to J.L. would not be detrimental to them was supported by the evidence.

C. Appellants Section 388 Petition

Appellant contends the court abused its discretion in failing to award primary custody to him under his section 388 petition.

Preliminarily, we point out that neither party cites the most pertinent authority. The statutes governing review hearings -- sections 366.21 and 366.22 -- provide that at every step of the reunification process, the court is required to order the return of the child to the physical custody of his or her parent or legal guardian[,] unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. ( 366.21, subd. (e) [six-month review hearing]; 366.21, subd. (f) [12-month review hearing]; 366.22, subd. (a) [18-month review hearing], italics added.) Courts have stated that the word return indicates the minor should be put back with the previous custodial parent unless section 361.2 applies.^[14] (In re Nicholas H., supra, 112 Cal.App.4th at p. 267 [Sections 366.21(f) and 366.22(a) require the juvenile court to remove the dependent child from the foster care placement and return him or her to the physical custody of a parent or guardian unless it finds that returning the child would create a substantial risk of detriment to the childs health, safety, or well-being.]; see also In re Janee W., supra, 140 Cal.App.4th at p. 1454 [agreeing with Nicholass interpretation of 366.21, subd. (f)].) Appellant did not have custody of either child prior to DCFS intervention. In our view, the plain meaning of the pertinent statutes required the court to return the children to J.L. once it made the finding that continued detention was no longer necessary.

Assuming, as both parties do, that the court had discretion to decide whether to award primary custody to appellant under a best interests standard, there is no evidence the court abused its discretion. (See In re Marriage of Burgess (1996) 13 Cal.4th 25, 32 [The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test.].) The court clearly considered the best interests of the children in rendering its ruling. (See In re Nicholas H., supra, 112 Cal.App.4th at p. 268 [When making a custody determination in any dependency case, the courts focus and primary consideration must always be the best interests of the child.].) While J.L.s situation was not ideal, the court had no ideal option before it. The children had not been in a stable home while under DCFS jurisdiction. They had gone from a foster home to a maternal relative to another foster home and, finally, to their paternal grandmother. The only consistent presence in their lives was J.L., who had raised them during their infancy and maintained visitation in all their placements. Appellant had been incarcerated for most of the childrens lives. Neither appellant nor his mother was engaged in the childrens lives until the end of the reunification period, when R.M. was nearly three and a half and Mary Jane was two. Although the children had lived with their paternal grandmother for over a year at the time of the June 29, 2007 hearing and had visited regularly with appellant since his release, they expressed a preference to live with their mother and maternal relatives. Both DCFS and the childrens counsel believed it would be in the childrens best interest to reside primarily with their mother. Appellant contended his circumstances were superior because he had a better home, a stable job and a better plan for child care. The court, however, was free to base its determination on other considerations, such as the childrens attachment to J.L. and their need for stability.

DISPOSITION

The courts order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.

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^[1] Statutory references are to the Welfare and Institutions Code.

^[2] Appellants criminal history includes vehicle theft, robbery, giving false identification to a police officer, receipt of stolen property, criminal conspiracy, possession of marijuana for sale, possession of dangerous weapons, and being under the influence.

^[3] The petition listed appellant as whereabouts unknown, although J.L. had informed DCFS that he was incarcerated.

^[4] The petition contained allegations pertaining to appellant, but none were sustained.

^[5] Appellant was ordered to participate in reunification services in June 2005, though DNA testing did not establish his paternity as to Mary Jane until November 2005.

^[6] The hearing had been scheduled for April 2006, but J.L. received information that month indicating her father had possible Chumash Indian heritage. The hearing was continued to allow notice to the potentially affected tribes. The court ultimately found that the Indian Child Welfare Act did not apply.

^[7] The maternal grandmother had been unable to gain custody through normal DCFS channels because she had another daughter living with her who was an ex-felon.

^[8] In July 2006, J.L. enrolled in a live-in substance recovery program for the recovering alcoholic/addict. Satisfactory participation and progress was reported by letter dated August 21, 2006.

^[9] DCFS records confirm J.L.s consistent visitation, which took place when the children were left for weekend daylong visits with their maternal grandmother.

^[10] At that point, the home studies for the grandmothers were still not complete.

^[11] Appellant informed the caseworker he had a stable home, stable job and stable relationship. He had recently been reunited with a child who had been under the jurisdiction of the Arizona child protection system. At the hearing on J.L.s section 388 petition, appellant urged the court to proceed with the plan of adoption by the paternal grandmother. Pointing to appellants failure to request custody, the court expressed concern that he was less interested in his childrens welfare than in trying to thwart the mother, and suggested he file a section 388 petition if he was truly interested in custody.

^[12] Although appellants petition sought nothing beyond reunification services, the court deemed it a request for reunification services or full custody and deemed its order a partial grant and partial denial of the petition.

^[13] J.L. contends appellant forfeited this issue by failing to object to the return of the minors to her on the basis of her fitness. As noted above, appellants counsel objected to the trial courts June 29, 2007 order based on J.L.s inconsistency and indicated to the court that the children returned from visitation with maternal relatives in poor condition. In addition, appellant stated to the caseworker as set forth in a report submitted into evidence that J.L. would not be able to adequately and appropriately provide for [the childrens] emotional and physical[] needs and was unfit. This represented sufficient objection to preserve the issue for appeal.

^[14] Section 361.2 applies where a non-offending, noncustodial parent seeks custody, and the court transfers custody to him or her after detention. If the court chooses that course, it need not offer reunification services to the offending parent, but may terminate jurisdiction while custody remains with the non-offending parent. (In re Janee W. (2006) 140 Cal.App.4th 1444, 1453-1455; In re Nicholas H., supra, 112 Cal.App.4th at pp.  266-267; In re Sarah M. (1991) 233 Cal.App.3d 1486, 1495-1496, disapproved in part on another ground in In re Chantal S. (1996) 13 Cal.4th 196.)