In re G.s.

Filed 2/3/10 In re G.s. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Michael J. Rushton, Judge. Affirmed.

Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant.

Pamela J. Walls, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.

Appellant T.H. (Mother) appeals from an order of the juvenile court denying her change of circumstances petition. (Welf. & Inst. Code, 388.)^[1] On appeal, she makes no direct challenge to the findings and orders terminating her parental rights as to her two-year-old son G.S.^[2] Rather, she argues only that the juvenile court abused its discretion in denying her section 388 petition. For the reasons explained below, we reject Mothers contention and affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND

G.S. came to the attention of the Riverside County Department of Public Social Services (DPSS) in April 2007 after Mother tested positive for methamphetamine following the childs birth. Mother denied using methamphetamine, cocaine, or crack cocaine, or having a problem with drugs or alcohol. However, Mother admitted to using marijuana socially and to smoking it four or five times during the pregnancy.

DPSS interviewed Mother and the childs older siblings on April 11, 2007. DPSS then lost contact with Mother until June 2007. The social worker made contact with Mother at the maternal grandmothers home on June 28, 2007. Mother again denied abusing drugs or alcohol, but acknowledged that her second drug test was positive for amphetamines, methamphetamine, and marijuana. She also disclosed that she had been diagnosed with a bipolar disorder and was not receiving treatment. The children were detained, and Mother was provided services.

Mother did not have her own residence. She resided at either the maternal grandmothers home in Riverside County, where two of her older children resided, or the paternal grandparents home in Los Angeles County, where G.S. and his father resided. Mother admitted that she could not provide for her children at that time and that she was dependent on her familys support. In addition, Mother had a prior child protective services history with two substantiated referrals for general neglect and caretaker absence. Mother also had a criminal history for theft- and drug-related offenses. The social worker believed Mother had intentionally evaded DPSS for two months and was concerned Mother was a flight risk.

On July 2, 2007, a petition was filed on behalf of the children pursuant to section 300, subdivisions (b) (failure to protect), and (g) (no provision for support). The children were formally detained the following day. The older children were placed with a nonrelated extended family member and G.S. was placed with the paternal grandmother.^[3]

On August 7, 2007, DPSS learned that Mother had attempted to commit suicide by driving into a wall and then threatened suicide with a knife. As a result, she was involuntarily hospitalized in a mental health facility. Mother was released after only a couple of hours due to her being coached by her maternal aunt on what to say in order to be released. The social worker spoke with Mother on August 8, 2007. Mother denied attempting to kill herself and claimed that she was merely mad at her mother and really stressed out. She also denied being coach[ed] by her maternal aunt so she could be released early. She further denied having a problem with drugs but failed to drug test when requested to do so.

Mother regularly visited her children, but it was reported that she lacked parenting skills. In addition, Mother appeared to pay attention only to the baby, G.S., rather than all the children. However, it appeared her regular visits with G.S. continued to be appropriate.

On September 19, 2007, the juvenile court ordered Mother to undergo a psychological evaluation to assist DPSS in the case plan. DPSS provided Mother with services and referrals pending the jurisdictional/dispositional hearing. However, Mother failed to comply with the services provided to her. She failed to randomly drug test, attend a drug treatment program, attend parenting classes, or complete a medication and psychological evaluation.

The contested jurisdictional/dispositional hearing was held on December 10, 2007. At that time, DPSS filed an amended petition. The court subsequently found the allegations in the amended petition true and declared the children dependents of the court. Mother was provided with services and ordered to participate.

By February 28, 2008, despite being offered referrals, Mother still had not regularly participated in her case plan. She was unemployed and had tested positive for marijuana. She had not even begun to participate in general counseling or an anger management program. Also, she had not completed her medication and psychological evaluations, and had repeatedly failed to randomly drug test. In addition, she had been inconsistent in maintaining contact with DPSS. Moreover, on February 11, 2008, DPSS learned that Mother had been arrested on September 11, 2006, in Orange County for making criminal threats (Pen. Code, 422), assault (Pen. Code, 240), and battery (Pen. Code, 242). DPSS also discovered that Mother had been arrested on December 12, 2006, in Riverside County for petty theft with a prior. (Pen. Code, 666.)^[4] The social worker recommended that services be terminated and that a selection and implementation hearing be set.

Seven months after the inception of the case, Mother finally began to turn her life around and make progress in her case plan. She entered an inpatient substance abuse program on February 29, 2008, and was expected to complete the program on May 29, 2008. She reportedly was doing well in the program and had participated in the following treatment programs: alternative adult education, group therapy, Narcotics Anonymous, Alcoholics Anonymous, AIDS education, anger management, relapse prevention, and parenting education. In addition, she had several negative tests for controlled substances. She also continued to visit regularly with her children, and the visits were reported to be appropriate, with no concerns.

Furthermore, Mother had completed a psychological evaluation with Edward J. Ryan, Ph.D., on April 4, 2008. Dr. Ryan reported that Mother still maintains an asocial attitude toward authority and the general boundaries of society. Dr. Ryan believed that Mothers level of insight was low, she was poorly motivated to make substantive change in her life, and that her future is probably going to look a lot like her past. Nonetheless, Dr. Ryan believed that Mother had the ability to benefit from services, if she chose to do so. By April 2008, the social worker recommended continuing Mothers services.

The six-month status review hearing was held on April 14, 2008. The juvenile court continued Mothers services, finding there was a substantial probability the children could be returned to her care.

On June 23, 2008, DPSS submitted an ex parte application requesting that G.S. and D.D. be returned to Mothers care on family maintenance services. Mother had completed a 90-day inpatient substance abuse treatment program, was residing in a sober living home, and was doing well. The court ordered the children returned to Mothers care with family maintenance services.

Unfortunately, before G.S. and D.D. were returned to Mothers care, Mother was arrested on June 24, 2008, for commercial burglary, possession of a controlled substance, and conspiracy. It was reported that Mother and her friend were shoplifting food items from a grocery store and placing them into a large purse. A search of the purse revealed a glass pipe with methamphetamine in it. Mother admitted the glass pipe belonged to her. In addition, Mother failed to randomly drug test on June 25 and July 11, 2008.

In August 2008, Z.Ps caretaker reported that Mother had taken the child to a mall unsupervised, and had failed to return the child until late in the evening, even after the caretaker demanded that Mother do so. Z.P. told her caretaker that she had smoked marijuana while with Mother. In addition, Mother reported that she was going to be homeless because she did not have any income to pay the rent at the sober living home. She also continued to violate her probation.

The August 28, 2008, status review report indicated that since Mother had been released from the inpatient program, she essentially reverted back to her old ways of living a transient lifestyle, abusing controlled substances, failing to keep her psychotropic medication evaluations, and continuing to participate in criminal activity.

On September 29, 2008, Mother pled guilty to burglary and theft, and was ordered to serve one year in county jail. The social worker, therefore, recommended terminating Mothers services and setting a section 366.26 hearing.

On October 21, 2008, at the contested 12-month review hearing, the court terminated Mothers services and set a section 366.26 hearing. The court ordered DPSS to provide Mother with visitation once a month supervised by DPSS and in accordance with any institutional rules.

G.S. had been placed with his paternal grandmother/prospective adoptive mother since he was five months old, and he was thriving in her home. He looked to her for comfort and support and appeared to be happily attached to her. She had provided G.S. with a stable and loving home since he was five months old and desired to adopt G.S. The prospective adoptive mother appeared very capable in providing for G.S.s physical, educational, emotional, and developmental needs, and she was open to allowing G.S. contact with his biological parents.

On April 20, 2009, Mother filed a section 388 petition, requesting to set aside the section 366.26 hearing and to reinstate reunification services for an additional six months. Mother claimed that she had enrolled in a 180-day drug treatment program while in custody and was scheduled to complete the program on June 17, 2009. She further stated that she had completed her GED through this program and was submitting to drug tests and attending counseling sessions. Additionally, she indicated that she had participated in a parenting program, a domestic violence program, an anger management program, and a life skills education program. She further asserted that she was dedicated to maintaining her sobriety and that it was in the childrens best interest to be reunited with her. In support, Mother attached certificates of completion from her prior inpatient drug treatment program, a letter from the Riverside Countys Sheriffs Department noting her participation in the 180-day treatment program, a letter from her mother, and GED test results.

A hearing on the section 388 petition was held on June 22, 2009. Five days prior to that date, Mother was released from prison and had enrolled in another inpatient drug treatment program, which, according to her counsel, would allow G.S. to reside with her and stay with her while she completed the program. Following arguments from counsel, the court denied Mothers section 388 petition. The court essentially found no change in circumstances and that it would not be in the childs best interest to grant Mothers request. The court explained, [G.S.] has been in a very stable environment with a party [who] appears to me to be imminently capable of raising him, who wants to raise him and will offer him the stability that you have been unable to offer him. The court thereafter proceeded to the section 366.26 hearing. The court terminated parental rights and found adoption the most appropriate plan for G.S. Mother now appeals only the summary denial of her section 388 petition.

II

DISCUSSION

A parent seeking to change an order of the dependency court bears the burden of proving by a preponderance of the evidence that (1) there is a change in circumstances warranting a change in the order, and (2) the change would be in the best interests of the child. (In re S.J. (2008) 167 Cal.App.4th 953, 959 [Fourth Dist., Div. Two].) The summary denial of a section 388 petition without an evidentiary hearing is reviewed for abuse of discretion. (In re Angel B. (2002) 97 Cal.App.4th 454, 460-461.) The trial courts ruling will not be disturbed on appeal unless the trial court has exceeded the limits of discretion by making an arbitrary, capricious or patently absurd determination, i.e., the decision exceeds the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

Mothers petition essentially asked for an opportunity to reunify with G.S. sometime in the future. The petition asked the court to vacate the section 366.26 hearing and offer her additional reunification services. We find that the court did not abuse its discretion in denying the petition.

First, regarding changed circumstances, although Mother may have substantially completed her case plan while in a structured setting, there is no evidence to suggest that Mother could maintain her sobriety. In fact, the record shows that after Mother was released from her 90-day inpatient substance abuse treatment program, she relapsed shortly thereafter and was arrested for shoplifting and possession of a controlled substance. Mothers subsequent participation in a second inpatient drug treatment program whileincarcerated is also not one warranting a change in the courts previous orders. Mothers incarceration limited her opportunity to abuse drugs and commit crimes. Moreover, she had been released from prison for only five days at the time of the hearing on her section 388 petition. Contrary to Mothers claim, the fact that Mother had participated in a 180-day treatment program while incarcerated does not demonstrate evidence of changed circumstances. The record shows that Mother is able to complete a program while she is in a structured setting, but has difficulty maintaining sobriety on her own.

Reunification is an objective of the dependency system; however, after reunification services are terminated, a parents interest in the care, custody and companionship of the child is no longer paramount. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) Instead, the courts focus shifts to the needs of the child for permanency and stability. (Ibid.) There is, in fact, a rebuttable presumption that continued foster care is in the best interest of the child. A court ruling on a section 388 petition, therefore, must recognize this shift of focus in determining the ultimate question before it, which is, what is in the best interest of the child? (In re Stephanie M., at p. 317.) Mother, therefore, was not entitled to reunification services at such a late stage of the proceedings even if she was currently out of custody and had entered a third inpatient drug treatment program. Based on Mothers prior history, it is pure speculation that Mother would remain crime free, drug free, and out of custody. The fact that she was then out of custody and had enrolled in yet another inpatient drug treatment program was not a changed circumstance because the focus was no longer on reunification with her, but rather, on the stability and permanency of G.S.

Second, it was not in the best interest of G.S. to offer additional reunification services to Mother in the hope of reunifying with her son. The record shows that the prospective adoptive mother was committed to providing G.S. with stability, love, and support. His stability and permanency were of paramount concern at this stage of the proceedings. G.S. had lived almost his entire life, since the age of five months old, with his prospective adoptive mother. Moreover, the prospective adoptive mother was meeting his needs, she loved him, and he was happily bonded to her. Mother has not shown that it was in G.S.s best interest to provide Mother with additional services in the hope that she could turn her life around for good and provide G.S. with the stability that he needs.

Given Mothers history of criminality and relapse, and the extensive time, effort, and services necessary to ameliorate the behaviors that led to the dependency, the court clearly did not err in denying Mothers petition. (In re B.D. (2008) 159 Cal.App.4th 1218, 1229.) There was no abuse of discretion.

III

DISPOSITION

The order denying Mothers section 388 petition is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

Acting P. J.

We concur:

KING

J.

MILLER

J.

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

^[2] G.S.s biological father is not a party to this appeal. Likewise, G.S.s three older half-siblings, N.J., Z.P., and D.D., are not parties to this appeal. N.J. resides with the paternal grandparents, who were granted legal guardianship of N.J. On February 18, 2009, Z.P.s godmother/caretaker was appointed as her legal guardian, and D.D.s maternal grandmother/caretaker was appointed as his legal guardian. Their dependency was thereafter terminated.

^[3] D.D. was later placed in his maternal grandmothers home.

^[4] Mother was eventually placed on summary probation.