In re A.E.

Filed 8/22/08 In re A.E. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Butte)

----

Jennifer S. (appellant), the mother of A. E. (the minor), appeals from orders of the juvenile court adjudging the minor a dependent child, removing the minor from parental custody, and denying appellants petition for modification. (Welf. & Inst. Code,^[1] 360, subd. (d), 388, 395.)

Appellant makes several contentions of alleged prejudicial error. Disagreeing with those contentions, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On February 26, 2007, Butte County Department of Employment and Social Services (the department) filed an original juvenile dependency petition pursuant to section 300 on behalf of the days-old minor. That petition alleged in part appellant admitted using methamphetamine during her pregnancy with the minor, for which she was arrested and jailed for violating the terms of her probation and court-ordered drug rehabilitation. The petition also alleged appellant failed to reunify with four half siblings of the minor.

The juvenile court sustained the petition. In the report prepared for the disposition hearing, the department recommended denial of reunification services to appellant. That report also noted appellant had been convicted on felony controlled substance charges. According to the report, when appellant used illegal drugs in August 2006, she was in the Proposition 36 drug program.

When the minor was born, her toxicology screen was negative for all substances. Moreover, appellant tested negative for illegal drugs. However, the department questioned appellants commitment to recovery. The department reported that appellant had missed a requested drug test as well as some Narcotics Anonymous (NA) meetings. Appellant continued to attend Proposition 36 classes and received services from other substance abuse programs as well.

It was the departments opinion that the minor could not be returned safely to appellants custody. According to the department, appellant had an extensive history with the agency and had lost custody permanently of four other children. The department concluded appellant had failed to treat the problems that led to the removal of these children and is again involved with the agency.

At the contested disposition hearing, appellant testified she was attending NA meetings and was receiving other substance abuse services. As of the date of the hearing, appellant had been drug free for 102 days. Appellant also told the juvenile court she was serious about her recovery from substance abuse now, and believed that continued services would assist her in coping with her addiction.

Appellant acknowledged she had been using illegal drugs for 14 years. She had begun one inpatient drug rehabilitation program but had failed to complete it. According to appellant, before the department filed the dependency petition, she had agreed to placement in a special community substance abuse treatment program. However, after the minor was detained, appellant could not enroll in that program unless she received reunification services.

Social worker Mimi Greminger testified appellant had been accepted into the special treatment program but no order had been issued directing appellants enrollment. After the minor was detained, the department decided to test appellants commitment to sobriety by requiring appellant to attend daily NA meetings. The social worker advised appellant that if she missed a meeting, in light of appellants extensive history with the agency, the department would question appellants commitment to sobriety. When it learned appellant had missed some meetings, the department decided to recommend denying appellant reunification services. Greminger admitted that appellant had attended other meetings and was cooperative with her.

The social worker stated she would not support placement of appellant in the special program. The reasons were appellants history and continued use of controlled substances, whether appellant was receiving services. Greminger told the juvenile court she continued to have concerns about [appellants] commitment to her sobriety.

A therapist from a treatment group attended by appellant testified that, despite being terminated from the Proposition 36 drug program, appellant had asked to continue with the group. According to that therapist, appellant made exceptional progress in the drug program. Acknowledging appellant had two relapses, the therapist opined those slips did not indicate continued substance abuse. He also told the juvenile court appellant had admitted being an addict and he noticed a dramatic positive change in her attitude.

At the conclusion of the disposition hearing, the juvenile court denied appellant reunification services, ruling the evidence showed she had failed to make reasonable efforts to overcome the drug addiction that caused the loss of [other] children up until the time that she was terminated from Prop. 36. The court also adjudged the minor a dependent child and ordered the minor removed from parental custody.

On July 17, 2007, appellant filed a petition for modification, requesting an order for the minor to be placed in a plan of family maintenance with appellant. Appellant attached to her petition several documents pertaining to placement in the special treatment program in which she had sought placement previously. That program, called the Family Foundations Program (foundations), had determined appellant was eligible for enrollment.

In support of her claim that the modification she sought would be in the best interest of the minor, appellant alleged she had visited with the minor, those visits went well, and placement of the minor with appellant at the foundations would provide a safe, controlled environment so that [they] could develop a secure attachment.

At the August 7 and 9, 2007, hearing on the petition for modification, the department advised the juvenile court the foundations would enroll appellant in the program only if the department agreed to the minors placement. The department then repeated its recommendation that appellant be denied reunification services and objected to placement of the minor with appellant in the program. The department also asked the court to deny appellants petition for modification.

Counsel for appellant urged the juvenile court to exercise its discretion to order the minor placed into a plan of family maintenance with appellant in the foundations. According to counsel, that disposition would be in the minors best interest. Counsel asked the court to grant the petition.

The juvenile court denied the petition for modification, ruling it was too soon to know whether appellant had overcome her substance abuse problem, and that she had failed to show modification would be in the best interest of the minor. The court stated in part that it would have to find that theres not a substantial risk of harm to the child to be returned to the mother or that it would be in the best interest of the child to provide a plan of family maintenance. I think that based upon [appellant]s past history, one of the purposes of this program is to get her to overcome her addiction to methamphetamine, change her lifestyle and then be in a position where she can be a safe member of the society with respect to the criminal aspect of the case and then a good mother with respect to [the] dependency aspect of the case. [] At this point the Court is not sufficiently satisfied that you have met your burden of proof to show that it would be in the best interest of this child to return the child to the custody of the mother, either in a plan of family maintenance or to dismiss the action. I think its premature at this time to suspect that [appellant] has overcome her problems; if I can, [sic] initially in light of the fact that she has both a methamphetamine problem and emotional distress caused by certain events in her life; and for that reason the Court is declining the request for modification.

DISCUSSION

I

The Order of Removal Is Supported

By Substantial Evidence

Arguing the record contains no evidence of a risk of harm to the minor, or any lack of a reasonable alternative to removal of the minor, appellant contends insufficient evidence supported the juvenile courts dispositional order removing the minor from parental custody. Noting there was only speculation the minor might not be protected in the foundations, appellant argues the minor should have been returned to her care under strict supervision by the foundations and the department. In support of appellants claims, she relies in part on In re David M. (2005) 134 Cal.App.4th 822.

To support an order removing a child from parental custody, the court must find clear and convincing evidence [t]here is or would be a substantial danger to the physical health, safety, protection or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minors physical health can be protected without removing the minor from the minors parents . . . physical custody. ( 361, subd. (c)(1); In re Heather A. (1996) 52 Cal.App.4th 183, 193.) The court also must make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor and state the facts on which the decision to remove the minor is based. ( 361, subd. (d).)

Removal findings are reviewed under the substantial evidence test, drawing all reasonable inferences to support the findings and noting that issues of credibility are matters for the trial court. (In re Heather A., supra, 52 Cal.App.4th at p. 193.) Further, evidence of past conduct may be probative of current conditions, particularly where there is reason to believe the conduct will continue in the future. (In re Rocco M. (1991)1 Cal.App.4th 814, 824.)

Ample evidence adduced at the disposition hearing supports the juvenile courts order for continued removal of the minor. The court had before it evidence that appellant has a long history of substance abuse and criminal conduct involving illegal drugs. The record also reflects appellant has received various services, extending back to 1998, and received referrals to numerous programs. Unfortunately, appellant missed meetings and a drug test, and continued to abuse illegal drugs.

Relying primarily on In re David M.,appellant argues the record contains no evidence that her substance abuse created a substantial risk of serious physical harm to the minor. We disagree. The record contains evidence that appellant used methamphetamine during her pregnancy with the minor. On this record, it is reasonable to infer that appellants pattern of abuse of illegal drugs interfered with her ability to provide proper care for the minor. That conduct placed the minor at a substantial risk of suffering serious physical harm. The record reflects appellant has a long history of substance abuse, beginning at age 21, failing to complete remedial programs, and relapsing. Based both on appellants past and on more recent conduct, it is hardly surprising the juvenile court found that returning the minor to appellant would present a substantial risk of detriment to the minor.

Appellant argues the juvenile court failed to consider placement of the minor with her in the foundations as a reasonable alternative to removal. But the record reflects, and the court found, the department had made reasonable efforts to eliminate the need for removal of the minor from parental custody. Those efforts, unfortunately, had not succeeded. On this record, there is ample evidence the minors safety and well-being would be in serious jeopardy if the minor were returned to appellants custody.

To appellants credit, the record reflects she has shown signs of progress recently, by submitting negative drug tests and participating in several programs. But the record also reflects appellant has a history of failing to benefit from services and continuing to use illegal drugs. Based both on appellants past and on her recent conduct, the prognosis was not favorable for the likelihood of appellants reunification with the minor. On this record, the juvenile court had no alternative but to ensure the minors protection by ordering the minor removed from appellants custody. As the court found, reasonable efforts in the form of various services and programs were made to eliminate the need for removal. In fact, at one point appellant had received two years of such services.

In sum, substantial evidence supports the dispositional order of removal, which the record reflects was supported by factual findings made by the juvenile court.

II

The Denial Of Reunification

Services Is Supported By Substantial Evidence

Appellant claims the juvenile courts denial of reunification services is not supported by substantial evidence. Appellant asserts the record reflects she made reasonable efforts to address her substance abuse. Noting she had established a period of 102 days of sobriety recently, appellant suggests it is speculation to presume she might relapse in the future.

The juvenile court may deny a parent reunification services under certain circumstances. ( 361.5, subd. (b).) Two of those circumstances are where the parent has had services terminated previously for siblings or parental rights ended for siblings without making a reasonable effort to treat the problems that led to removal of the siblings. (Id., subd. (b)(10), (11).)^[2] In such a case, the court may not order services unless it finds, by clear and convincing evidence, that reunification is in the best interest of the minor. ( 361.5, subd. (c).)

In reviewing appellants claim, we apply the familiar substantial evidence test. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.) When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing evidence, the reviewing court must determine if there is any substantial evidence -- that is, evidence which is reasonable, credible and of solid value -- to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination, we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. (In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

Here, the department based its recommended denial of reunification services to appellant on her previous history, which includes losing three minors to adoption and a fourth to foster care. That history also includes services in 1997 and 2001. In 2005, appellant was denied services. Unfortunately, as the social workers report also noted, appellant admitted using methamphetamine in August 2006 and January 2007. Moreover, she had violated probation for a third time, was terminated from a drug program, and missed NA meetings. On this record, it is not surprising that the department would conclude, especially where a young minor is involved, that providing appellant with reunification services again would not be in the best interest of the minor.

At the disposition hearing, the social worker emphasized that her concern with appellants prospects pertained to appellants drug relapses. According to the social worker, her concerns were with NA meetings, and I know that shes doing Skyway House and Prop. 36, but that was after I had asked her to do the NA meetings and her priority wasnt there. She missed an NA meeting shortly after I had asked her, a few days after I talked to her about going every day. The other thing is she has been given opportunities, she has been in Prop. 36 before, she has tried. Shes been offered in-patient [treatment] and nothing has worked.

When asked whether she would support appellants enrollment in the foundations, the social worker replied in the negative, asserting that appellant had continued to use with services in place, services not in place. Shes continued to use.

It is true, as appellant argues, that only reasonable efforts, rather than perfection, is required. However, it is difficult to characterize as reasonable appellants efforts to address her substance abuse when she used methamphetamine during her pregnancy with the minor, and also used methamphetamine while taking Proposition 36 classes. Appellants history demonstrates she has been unable or unwilling to maintain sobriety for any substantial length of time, a factor cited by the social worker in deciding to oppose placement of the minor with appellant in the foundations.

On the record before it, the juvenile court concluded that overall appellant had failed to make reasonable efforts to overcome her drug addiction, even as it acknowledged her attempts. That decision was well within the courts discretion and is supported by the evidence before the court. The record reflects appellants history has been marked by ongoing drug abuse, even while she was receiving services, and by an inability to maintain sobriety for long. Under such circumstances, the prospects for appellants successful reunification with the minor were doubtful at best. Substantial evidence supports the courts denial of services.

III

Denial Of Modification Petition

Was Within Juvenile Courts Discretion

Appellant claims the juvenile court abused its discretion in denying her petition for modification. Noting the evidence of changed circumstances, in the form of her approval for admission into the foundations, adduced at the hearing, appellant asserts the best interest of the minor would have been promoted by returning the minor to her custody under a family maintenance program. According to appellant, the record reflects the existence of a bond between appellant and the minor, such that it would be in the minors best interest and preserve the family if the minor were returned to appellants custody.

Section 388, subdivision (a), provides the parent of a dependent child may petition the juvenile court upon grounds of change of circumstance or new evidence . . . for a hearing to change, modify, or set aside any order of court previously

made. . . . Section 388 permits modification of a dependency order if a change of circumstance or new evidence is shown and if the proposed modification is in the best interest of the minor. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.)

When a petition for modification is brought after the end of the reunification period, the best interest of the child is the paramount consideration. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) In assessing the best interest of the child at this stage of the proceedings, the juvenile court looks to the childs needs for permanence and stability. (Ibid.)

The party petitioning for modification has the burden of proof by a preponderance of the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 48.) A modification petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)

In denying appellants petition for modification, the juvenile court had before it evidence of appellants efforts to ameliorate the difficulties underlying the dependency petition. However, doubtless out of concern for the minors needs, the court suggested it would not be in the best interest of the minor to return her to parental custody.^[3]

The determination by the juvenile court was well within its discretion. As the record reflects, appellant had made some progress, and her efforts are to be commended. But the record also suggests appellant will need more time in which to continue to prove her fitness as a parent. In the meantime, it was likely, as the record suggests, that the minor would continue to develop, maintain stability, and attach to adult figures.

In her petition, appellant averred it was in the best interest of the minor to return the minor to parental custody due to the close bond they shared. But at this point in the proceedings, the focus of the case had shifted to the minors interest, and it was unreasonable to expect the minor to wait indefinitely for appellant to establish her fitness as a parent. As the record suggests, appellant requires more time in order to maintain and strengthen her relationship with the minor.

The difficulty with appellants petition is her failure to allege pertinent facts in support of her belief that the minors best interest required reunification with appellant. A prima facie showing requires the proffering of acts relevant to the claim made. (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) Mere beliefs, without facts to support them, do not constitute prima facie evidence of the minors best interest. Here, it is not enough to assert, as appellant does, that the minor should be returned to her so that they can develop a secure attachment in the foundations. At the time of the hearing on the modification petition, the young minor had been out of appellants custody for a substantial period of time, amounting to more than six months. Appellants petition is deficient because it contains few, if any, facts relating to the minors current circumstances.

Appellants brief emphasizes the strength of the bond with the minor, her acceptance into the foundations, and the efforts she had made to become a better parent. But appellant says little about the minors circumstances and feelings, nor about the possibility that, even after modification in the form of a family maintenance program, she might not be able to achieve permanent reunification with the minor. As we have suggested, the focus of appellants brief appears to be on appellant, rather than on the minor.

Most importantly, in her petition appellant did not allege any facts that the minors needs for permanence and stability would be promoted by a potentially lengthy period of family maintenance services in the foundations and by return to a parent who had been out of the minors life for a substantial period of time.

In Kimberly F., the appellate court warned against the juvenile court simply comparing the situation of the natural parent with that of a caretaker in determining a section 388 petition. It termed such an approach as the simple best interest test. (In re Kimberly F., supra, 56 Cal.App.4th at p. 529.) Instead, the appellate court found that determining a childs best interest under section 388 required an evaluation of a number of factors, including the seriousness of the reason for the dependency action, the existing bond between parent and child and caretaker and child, and the nature of the changed circumstances. (Id. at pp. 529, 532.) The court suggested it was unlikely a parent who lost custody because of sexual abuse of a minor could prevail on a section 388 petition, whereas in a dirty house case, which was present in Kimberly F., the chances of success were greater. (Id. at pp. 531, fn. 9, 532.) In Kimberly F., the court concluded the decision to deny the section 388 petition was based largely and improperly on the juvenile court judges adoption of the narcissistic personality rationale, which the judge had applied to the mother in that case. (Kimberly F., at pp. 526, 527, 532-533.)

In this case, in denying appellants section 388 petition, the juvenile court did not discuss the factors analyzed in Kimberly F. However, evidence of all of the critical factors contained in Kimberly F., including the basis of the dependency action, the relationship between appellant and the minor, and the nature of the alleged changed circumstances, was before the court. Moreover, the courts extensive comments about the case suggest it considered carefully all pertinent circumstances. On the record before it, the court ruled that appellant failed to sustain her burden. Under the abuse of discretion standard, we see no error in that determination.

The juvenile court was required by statute ( 388) to focus on the minors best interest in deciding whether to grant the petition for modification. As we have seen, that interest consists of the minors needs for stability and permanence. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Childhood cannot wait for a parent to establish readiness for parenting. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) Here, apparently the minor had shown the ability to adjust to a stable foster care placement. On the other hand, in her petition appellant acknowledges the possibility she might require a year of services, followed by another year of probation supervision, which had not been successful in the past. On this record, it is not surprising the court ruled in effect the minor should not be forced to wait any longer.

We agree with appellant that her acceptance for admission into the foundations demonstrates a showing of changed circumstances. However, in her petition, appellant acknowledged she would again receive substance abuse treatment, including relapse prevention. Appellant has violated conditions of her probation three times. The record suggests the minor requires the stability afforded by a nurturing and loving family, for which the minor should not have to wait.

Under the circumstances of this case, the juvenile court did not act arbitrarily, capriciously, or beyond the bounds of reason in denying appellants petition for modification. The courts determination that it was premature to believe appellant had overcome her difficulties so that it would not be in the minors best interest to grant the petition was reasonable and is supported by the record. (Cf. In re Edward H., supra, 43 Cal.App.4th at p. 594.) In sum, appellant failed to make the necessary showing, as required by section 388, that a modification would promote the best interest of the minor. There was no abuse of discretion or other error in the courts decision.

DISPOSITION

The orders of the juvenile court are affirmed.

ROBIE , J.

We concur:

DAVIS, Acting P.J.

NICHOLSON , J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] Those provisions, in their current form, provide the juvenile court may deny reunification services where it is shown: (10) That the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent or guardian. [] (11) That the parental rights of a parent over any sibling or half sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a), and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from the parent.

^[3] Contrary to appellants claim, the record reflects the juvenile court referred explicitly to the minors best interest in rejecting appellants request for custody of the minor to be granted to her.