Melissa Z. v. Super.
Filed 1/29/13 Melissa Z. v. Super. Ct. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
FIFTH
APPELLATE DISTRICT
MELISSA
Z.,
Petitioner,
v.
THE SUPERIOR
COURT OF TULARE
COUNTY,
Respondent;
TULARE
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Real Party in Interest.
F065949
(Super.
Ct. No. J05-60010)
THE COURT
name="_ftnref1" title="">*
ORIGINAL
PROCEEDINGS; petition for extraordinary
writ review. Jennifer Conn Shirk,
Judge.
Melissa Z.,
in pro. per., for Petitioner.
No
appearance for Respondent.
Kathleen
Bales-Lange, County Counsel, and Jason G. Chu, Deputy County Counsel, for
Real Party in Interest.
-ooOoo-
Melissa Z.,
in propria persona, seeks an extraordinary writ (Cal. Rules of Court, rule
8.452) from the juvenile court’s orders denying her petition filed under
Welfare and Institutions Code section 388
six-, and four-year-old daughters and setting a section 366.26 hearing. She contends the juvenile court erred in
finding that she made poor progress and that there were not changed
circumstances. We disagree and deny the
petition.
DISCUSSION
These
dependency proceedings were initiated in September 2010 after the authorities
discovered Melissa and Daniel smoking marijuana in the presence of Melissa’s
four children ranging in age from 21 months to six years. Daniel is the father of Melissa’s three
youngest children.
This was
not Melissa’s first experience with the dependency
system. In 2005, her two eldest
children, a one-year-old daughter and a newborn son, were removed from her
custody because of her drug use. Melissa
successfully completed reunification services and the children were returned to
her custody under family maintenance services.
In October 2006, the juvenile court terminated its dependency
jurisdiction.
In
September 2010, the juvenile court ordered the children detained pursuant to an
original dependency petition filed on their behalf by the Tulare County Health
and Human Services Agency (agency) and ordered reunification services for
Melissa. The agency placed the children
together in foster care.
The
juvenile court provided Melissa reunification services over the ensuing
year. During that time, Melissa
struggled with her drug abuse. She
completed drug treatment in January 2011 but continued to test positive for
methamphetamine. In addition, she
exhibited inappropriate behavior with the children who by this time were in
separate placements because of their disruptive behavior.
In October
2011, the juvenile court conducted a contested 12-month review hearing on the
agency’s recommendation to terminate Melissa’s reunification services. County counsel advised the juvenile court
that Melissa was re-enrolled in drug treatment but had a pattern of not
maintaining her sobriety. In addition,
the children exhibited extreme behavior and Melissa was unable to assert any
parental control even though she participated in an in-home parenting
program. At the conclusion of the
hearing, the juvenile court found that Melissa made minimal progress,
terminated her reunification services, and set a section 366.26 hearing for
February 2012.
In February
2012, prior to the section 366.26 hearing, Melissa filed a section 388 petition
asking the juvenile court to either return the children to her or reopen
reunification services. The section
366.26 hearing was vacated and advanced to April 2012. Meanwhile, in March 2012, the juvenile court
conducted a section 366.26 hearing as to Melissa’s son and terminated her
parental rights as to him.
name="_ftnref3" title="">[2] At the same hearing, the juvenile court
denied Melissa’s section 388 petition after finding there was not a change of
circumstances to warrant reinstatement of reunification services and that
reinstatement of services would not serve the children’s best interests.
In April
2012, the juvenile court conducted the section 366.26 hearing as to Melissa’s
three daughters. The juvenile court
ordered legal guardianship for the older two and foster placement with a goal
of relative placement for the youngest.
The juvenile court also set a post-permanency plan review hearing
(§ 366.3, subd. (a)) for October 2012.
In
September 2012, Melissa filed a section 388 petition asking the juvenile court
to return all four children to her custody or reinstate reunification
services. In her petition, she stated
that she completed substance abuse treatment including aftercare and attended
Narcotics/Alcoholics Anonymous meetings and previously completed a parenting
program. By this time, the three
children were placed together with a relative who was willing to adopt them.
In October
2012, the juvenile court convened a combined hearing on Melissa’s section 388
petition and the review of the post-permanency plan. The juvenile court struck Melissa’s son from
the petition since her parental rights as to him had been terminated. Melissa testified, after which the juvenile
court denied her petition, finding that there was not a change of circumstances
and reinstatement of reunification services was not in the children’s best
interest. The juvenile court also
continued the post-permanency plan review hearing for a week because Melissa
had not received a copy of the agency’s report.
On
October 10, 2012, the juvenile court convened the post-permanency review
hearing. Melissa’s attorney did not
challenge the setting of a section 366.26 hearing but asked the court to find
that Melissa made moderate if not substantial progress in alleviating the
problem that required her children’s removal.
At the
conclusion of the hearing, the juvenile court set a section 366.26 hearing and
advised Melissa of her writ rights. This
petition ensued.
DISCUSSION
Melissa, in essence, contends that
the juvenile court erred in denying her section 388 petition because she
presented sufficient evidence that her circumstances had changed such that an
order for reunification services would serve her children’s best
interests. As evidence of changed
circumstances, she cites her completion of substance abuse treatment and
aftercare as well as parenting classes.
Any party
may petition the juvenile court to modify or set aside a prior dependency order
pursuant to section 388 on grounds of changed circumstance or new
evidence. (§ 388, subd. (a).) The party bringing the section 388 petition
must also show the proposed change is in the best interests of the child. (In re
Stephanie M. (1994) 7 Cal.4th 295, 317.)
Section 388 provides a means for the court to address a legitimate
change of circumstances, even at the permanency planning stage, while protecting
a child’s need for prompt resolution of his or her custody status. (In re
Marilyn H. (1993) 5 Cal.4th 295, 309.)
Whether the juvenile court should modify a previously made order
rests within its discretion, and its determination will not be disturbed absent
a clear abuse of discretion. (In re
Stephanie M., supra, at p. 318.)
We conclude
the juvenile court properly ruled in denying Melissa’s section 388
petition. First, Melissa failed to
establish a legitimate change of circumstances.
The fact that she completed drug treatment was not a changed
circumstance. According to the record,
she completed drug treatment several times only to relapse into drug use. Further, even assuming that Melissa presented
sufficient evidence of changed circumstances, there is no evidence that the
children’s best interests would be served by another attempt at
reunification. After much effort,
Melissa’s three daughters were placed together in the home of a paternal
relative who wanted to adopt them. This
placement allowed them both permanency and the ability to be raised as
siblings. In addition, according to the
record, Melissa’s eldest daughter refused to visit her and the other two were
either reluctant to visit or reacted adversely to visits. Under the circumstances, we cannot conclude
that the juvenile court abused its discretion in denying Melissa’s section 388
petition. Thus, we find no error.
DISPOSITION
The
petition for extraordinary writ is denied.
This opinion is final forthwith as to this court.
name="_ftn1" title="">*Before
Levy, Acting P.J., Kane, J., and Poochigian, J.
name="_ftn2" title="">[1]All
statutory references are to the Welfare and Institutions Code unless otherwise
indicated.
