In re Destiny M.
Filed 2/21/13 In re Destiny M. CA2/1
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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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
ONE
In re DESTINY M. et al.,
Persons Coming Under the Juvenile Court Law.
B242166
(Los Angeles
County
Super. Ct.
No. CK10689)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
YVONNE G.,
Defendant and Appellant;
DESTINY M. et al.,
Appellants.
APPEAL from
an order of the Superior Court
of
County, Phillip L. Soto, Judge. Affirmed.
Andrea R.
St. Julian, under appointment by the Court of Appeal, for Defendant and
Appellant.
Aida
Aslanian, under appointment by the Court of Appeal, for Appellants
Destiny M., St. M., Jeannie M., and S. M.
John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Tracey
F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
_________________________
Yvonne G.
(Mother), and her daughters Destiny M., St. M., Jeannie M., and S. M., appeal
from the juvenile court’s order denying Mother’s petition under Welfare and
Institutions Code
title="">[1] section 388. We affirm.
BACKGROUND
Mother’s
four oldest minor daughters are Destiny (now age 16), St.
(now age 15), Jeannie (now age 14), and S. (now age 12). Miracle, Mother’s fifth minor daughter (now
age 10), was named in the dependency
case, but is not a party to this appeal.
On June 14, 2011, when the five sisters
were 14, 13, 11, 9, and 8 years old, the Department
of Children and Family Services (DCFS) filed a petition under section 300,
alleging under subdivision (b) that Mother had failed to provide for and
protect the children.
name="_ftnref2" title="">[2] After receiving a referral on June 8, 2011 alleging general neglect
by Mother, DCFS conducted an investigation on June 9, and learned that Mother
routinely left home before the children went to school and did not return home
until after they were asleep. The
children’s maternal uncle, Angel, who worked from 8:00
a.m. to 1:00 p.m., lived
in the home and would watch the girls and helped them cook and clean when
Mother was gone at work cleaning houses.
Miracle, who had spina bifida, needed a catheter, and when Mother was
not home the older children would change the catheter (although Angel would
not, as he was of the opposite gender).
The social worker received a phone call from “Velinda,†who used to be
Miracle’s medical placement, and who was taking care of Miracle. Mother had called from a hospital asking
Velinda to pick Miracle up. Miracle told
Velinda that she and her sisters ran when the social workers came to the house,
because they were scared because “the last judge warned their mother that the
next time the children were detained, [Mother] would lose her parental rights.â€
The social
worker contacted several hospitals, and learned that Mother had been in an
emergency room on the night of June 8, and was currently on a 72-hour
psychiatric hold at Pacifica Hospital
for reported use of PCP and cocaine, depression, and an attempt to commit
suicide by jumping off a parked car.
Mother spoke to the social worker by telephone, and said she had been
hospitalized on June 6 for a nervous breakdown and had been released, but
because she still was depressed a friend took her to the emergency room on June
8. Mother stated she had not taken any
drugs for over five years, and denied any attempt at suicide. She then admitted she “‘could have been
pissed off and taken a hit,’†and could have done something “‘dumb’†like
making an attempt at suicide. Asked when
she was last home, Mother said, “I don’t remember my days,’†denied having a
job, and stated she was always home with the girls.
DCFS
detained the five children, placing Destiny, St.,
Jeannie, and S. with the maternal grandmother, and Miracle with Velinda.
On June 14, 2011, the date of the
detention hearing, DCFS filed a last minute information indicating that the
maternal grandmother had a criminal record, and DCFS was seeking a waiver to
approve her home as placement for the four older children.
developmental assessment of the children, and found a prima facie case that
substantial danger existed to the children, reasonable efforts had been made to
prevent removal, and continuance in the home was contrary to the children’s
welfare. Custody of all five children
was temporarily placed with DCFS pending further disposition, with sibling
visits and monitored visitation for Mother.
The
jurisdiction/disposition report dated July
14, 2011 indicated that Destiny, St.,
Jeannie and S. were placed with a licensed foster mother, and Miracle was with
Velinda, also a licensed foster mother.
The report detailed Mother’s prior history with DCFS; all the prior
petitions had been sustained. A 1994
petition alleged as to Mother’s older child by a different father, Francine
(now an adult) that Mother, a PCP user, was incapable of providing regular care
and had been under the influence of drugs on a number of occasions, making her
unable to protect or supervise the child.
Mother received family reunification services from April 1994 to
November 1995, and family maintenance services followed until January 1997.
A second
petition filed in 1999 alleged that Mother tested positive for cocaine when
Jeannie was born, Jeannie had a positive toxicology screen for cocaine, and
Mother’s substance abuse placed Jeannie, Destiny, and St. at physical and
emotional risk. The children were placed
with Father until December 2000, the court terminated jurisdiction and Mother
reunified with the children.
A third
petition in 2003 alleged that Mother had a positive toxicology screen at the
time of Miracle’s birth. The court did
not order reunification services. In May
2004, however, Mother filed a section 388 petition requesting the return of the
children to her care, and in July 2004, the children were ordered home to
Mother with family maintenance services.
A fourth
petition in 2007 alleged abuse of Francine by Mother and Father. Mother was on probation following a September
2006 arrest for possession of controlled substance and driving with a suspended
license, and had failed to complete a drug program ordered by the criminal
court. Mother subsequently completed the
program, and was dismissed from criminal court supervision in October 2008.
DCFS
recommended that Mother not receive reunification services.
Mother
enrolled in a six-month outpatient drug treatment program at Bienvenidos’
Institute for Women’s Health on June 28, 2011.
Mother did not start the program until July 25, 2011, after which she
attended regularly with four weekly negative drug tests in August 2011. She also started group therapy and was on the
wait list for individual counseling.
On
September 14, 2011, Mother appeared at a hearing and pleaded no contest to an
amended petition, including the subdivision (b) allegations. She indicated that she understood that it was
possible that she would not receive family reunification services, and the
court could put into place a permanent plan which might include termination of
her parental rights.
In a supplemental
report dated October 19, 2011, DCFS reported that Mother was initially
inconsistent with her attendance in the drug treatment program, and on
September 8, 2011, she had attended nine out of 20 sessions. On September 8, however, Mother tested positive
for methamphetamines. She told an
investigator on October 5 that she did not use on purpose, and unknowingly
consumed the methamphetamine orally when she was given a Starbucks coffee. She denied otherwise using drugs, and at the
time of the supplemental report continued to comply with her programs.
At a
hearing on October 19, 2011, with Mother present, counsel for Destiny, St.,
Jeannie, and S. each represented that his or her client wished to reunify with
Mother. Counsel for DCFS argued that no
provided to Mother, who had not made reasonable efforts to treat her ongoing
drug abuse. The September 8 positive
test for methamphetamines was in addition to Mother’s use of PCP and cocaine,
as reflected in the allegations sustained by the court. Mother had multiple relapses in the past, had
been slow to begin the counseling, and “she’s quite frankly telling falsehoods
about the meth use.†Counsel for the
four children argued that unlike Miracle, they had no medical issues, and as
older children they were bonded to Mother and would very much like to
reunify. Mother’s counsel also requested
reunification; she had previously reunified with the children “multiple
times. It’s not a lost-cause.†She had tested positive for methamphetamine,
which meant “she either knowingly took the methamphetamine and she’s hanging
out with people she shouldn’t be hanging out with. Either way she’s dealing with the situation
by re-enrolling in the program and separating herself from these people.â€
The court
declared the children dependents of the court under subdivision (b) as to
Mother, and declined to offer reunification services. The court outlined Mother’s involvement with
DCFS, with petitions in 1994, 1999, 2003, and 2007 (following an arrest for
possession of a controlled substance) showing that her history was “just
replete with her drug use.†In the
current 2011 petition, Mother was a current user of “serious hard drugs,†PCP
and cocaine, and “just recently a month-and-a-half ago on September 8, she
tests positive for methamphetamine.†The
court concluded: “So I do find today
that . . . in terms of disposition . . . that reunification
services are not going to be ordered for the mother . . . in that today the
court finds that she’s had reunification services terminated for siblings or
half-siblings. She also had—gone into
legal guardianship. At least Francine has. [¶] I
find that she has not subsequently made a reasonable effort to treat the
problems that led to the removal of the sibling or half-sibling from her. She’s still on drugs. She’s still got that problem, and she’s not
treated it adequately.†The court set a
hearing to select a permanent plan.
In November
2011, the children’s maternal aunt expressed an interest in adoption of the
four older girls, but that was not an appropriate placement since the aunt
lived with the maternal grandmother.
DCFS recommended termination of Mother’s parental rights.
On February
28, 2012, Mother filed a request to change court order pursuant to section 388
(“388 petitionâ€) as to Destiny, St., Jeannie, S., and Miracle, requesting “a
home of parent mother order or in the alternative an order authorizing more
reunification under [section] 366.3.â€
She stated that she had completed her drug program, was testing clean,
had completed parenting and leadership classes, and was seeing a
therapist. She had made substantial progress,
and “[the c]hildren desperately wish to come home.†An attached final progress letter from the
drug treatment program, dated February 1, 2012, said Mother had failed to test
on September 8, 2011 and tested positive on September 12. The letter also stated that Mother had made
progress, increased her support system, implemented parenting strategies, and
expressed “I have much hope in her abilities to remain abstinent.†Mother also volunteered in a community group
located at the program center through the “Parent Café†and the group organizer
stated that she was “becoming the model group member.â€
The court
granted a hearing on Mother’s section 388 petition, and ordered DCFS to prepare
and submit a report addressing the petition.
The DCFS
interim review report, filed April 5, 2012, repeated Mother’s history with
DCFS, and included in her criminal history an arrest for possession of a
controlled substance on October 15, 2008.
Mother had a history of depression since 1992, and a drug history since
1990, had received extensive services, “[did] not want her daughters to go to
permanent plan as she is free from drugs and depression†and despite her past
mistakes “want[ed] a chance to mend the mistakes and parent her children,†with
professional help and services. A
counselor at the drug treatment center reported that Mother “never thought she
would lose her children forever. . . it appears that this time she really got
it. Mother has removed her self [sic]
from bad influences and has learned to identify her drug triggers. . . .
to relapse.†Mother’s individual
therapist stated that Mother attended weekly sessions, was open, and spoke
about her feelings. Mother’s sponsor
since November 2011, a marriage and family therapist, said she had noticed a
“big change†in Mother, who now had the capabilities to fight substance abuse,
and participated in daily Narcotics Anonymous meetings. “She is daily building foundation. Mother has a good attitude and does not give
up. She is now a role model for other
parents that are beginning treatment.â€
Mother
stated “she understands that it appears she is manipulating the department with
having a history with DCFS however she is requesting a chance to prove herself
and to her family that she wants to be together with her daughters.†She stated she did not use drugs from 2003 to
2011, until she started to feel depressed.
She began using drugs, with PCP her drug of choice, when she was nine
years old; she was around PCP all the time because of her mother’s drug use. “Mother recognizes that she has a drug problem
and is accepting of professional help to rectify her mistakes.â€
DCFS
commended Mother for her “sincere efforts to continue to address her 22 year
history of drug addiction,†and noted that mother had undergone multiple
outpatient treatments after repeated relapses.
Drug addiction was “a complex but treatable brain-disease,†and an
individual had to do more than stop using; she had to change aspects of her
personality. Mother tested dirty for PCP
and cocaine in June 2011, and in September 2011, Mother claimed someone put
drugs (methamphetamine) in her coffee, and repeatedly denied she had
relapsed. DCFS recommended that Mother
complete a six-month inpatient residential program to demonstrate she had truly
overcome her addiction, as the effects of her substance abuse were “far
reaching†and inpatient treatment had not yet been explored. DCFS determined that the best interest of the
children was to stay in the permanent plan, and recommended denial of the section
388 petition.
Jeannie,
St., S., and Destiny each wrote a letter requesting to go home to live with
Mother, saying that they missed their mother and their home. Destiny stated: “[M]y mom is a good mom she just has a drug
problem. . . . I know that if me and my sisters go
home I would push my mom into the right direction.†The DCFS report for the six-month review
hearing stated that Destiny, St. and Jeanne “have adamantly stated that they
are not interested in being adopted.†S.
was only 10 years old, and efforts would be made to locate “an adoptive home
for the sibling set.†A February 12,
2012 letter from the therapist with whom the girls participated in weekly
therapy stated that they were all doing well, cooperated in therapy, but kept
to themselves in the foster home and looked forward to their visits with
Mother.
At a
hearing on April 5, 2012, with the children and Mother present, the court
allowed weekly overnight visits for the children in the home of the maternal
grandmother, with DCFS discretion to liberalize further, although Mother was
not to stay in the home after 10:00 p.m.
The court explained: “My job is
to protect the children that come through this court. It’s called children’s court. And it’s the best interest of the
children. And a lot of times the
children—what they want is not something I can give them because it’s
detrimental to them. It’s not good for
them. I need to encourage your mother to
understand that this a lifetime thing.
She’s got to change. . . . We
have to protect you from yourselves a lot of times and what your desires are.â€
On April 6,
2012, Mother enrolled in another outpatient program, Plaza Community
Center. The program required three
90-minute group meetings a week, evidence of three 12-step meetings a week, and
random drug testing. At a hearing on April
18, 2012, with Mother and the four children present, the court found by a
preponderance of the evidence that there was a continuing necessity for court
jurisdiction, the placements were appropriate, and DCFS was making reasonable
efforts to finalize the permanent plan of adoption. The court also extended Mother’s visitation,
including one-hour unmonitored visits.
In the
interim review report dated May 31, 2012, DCFS reported that Destiny, St.,
Jeannie and S. were placed together in the same foster home. All four children stated they loved Mother
and wanted to reunify with her. Mother
was working consistently in her programs to get the girls back. She stated that she did not use drugs between
2003 and 2011, but began to feel depressed in 2011 as she was caring for
everyone. She had recently tested
negative for drugs from April 30 through May 23, 2012. “The Department commends the mother for her
sincere efforts to continue to address her 22 year history of drug
addiction. DCFS records reveal that
[Mother] has undergone (5) multiple-episodes of outpatient drug-treatment after repeated relapses.†As recently as September 11 Mother stated
that someone put drugs in her coffee to explain why she tested positive for
methamphetamine. DCFS continued to
recommend that Mother complete inpatient drug treatment, and concluded it was
in the best interest of the children to remain in a permanent plan.
On May 31,
2012 the court held the section 388 hearing with Mother and the four children
present. The children’s counsel
represented that they all wanted to reunify with Mother. Mother’s counsel outlined Mother’s
participation in programs and counseling and noted that Mother had tested clean
for eight months. Counsel requested a
home-of-parent order order “on the condition that the children live with the
mother in the grandmother’s home, and the maternal grandmother is in the back.
. . . It’s a duplex.†In the
alternative, Mother’s counsel requested six months of family reunification
services, which was in the best interests of the four children.
Counsel for
DCFS noted, “mother has been down this road before on several occasions, and
each time, drug use pulls her back down.â€
Counsel commended Mother’s “sincere efforts to continue to address her
22-year history of drug addiction,†but Mother did not own up to the fact of
relapse when she tested positive for methamphetamine, instead giving “excuse
number one or two in these types of cases where somebody puts something in her
drink.†Mother’s last positive test was
for methamphetamine, and drug testing was less useful for that drug because
methamphetamine stays in the system for a shorter time so that weekly testing
would not be definitive. Mother’s former
outpatient treatments “haven’t exactly filled the bill†and the court should
“make a finding that Mother’s circumstances may be changing, but are not
changed to the point where it would justify returning the children to her or
providing reunification services, given the fact that has been done many times before.†Counsel for the children joined Mother’s
counsel in arguing that Mother had shown a change of circumstances in the last
eight or nine months, the court should grant the section 388 petition, return
the children to the home of Mother, or at least provide six months of
reunification services.
The court
addressed Mother: “I know it can be
done. But it takes time. You have got a very long history. It’s not going to happen overnight. It will happen if you keep working. I have faith in you in that regard. [¶] . . . [¶] I am impressed with the efforts that you have
made over the course of the last eight months, but I have to weigh a very long
history that you
have. . . . [¶] . . . But I have
to weigh eight months of good work versus virtually a lifetime of drug use, and
slipping back and slipping back and slipping back over the course of four other
similar motions, where reunification services were extended to you and you
didn’t complete them.†The court stated
that it understood Mother’s situation, but “I have the safety of your children
to consider. This is not the time to put
them back with
you. . . . [¶] . . . Recurring
relapses are very often the case, and I can’t blind myself to that and I can’t
sit still with the notion that I gave the kids back to you and you slipped into
something, into a relapse, and that they are left without having you the
primary parent, . . . being the one that is responsible, not being able to take
care of them when they need help.†The
court continued that Mother would “have to show me more before I can believe
that the circumstances have changed so dramatically that it outweighs the long
drug history that you have,†and encouraged Mother to “go right back to work
doing what you’re doing. And ramp[] it
up even.†The court suggested, without
ordering, that Mother consider finding an inpatient drug program. “This is a situation where we need more
time.â€
The court
stated, “I am going to deny the 388 without prejudice. That means you haven’t won today, but you could
win again in the future if you do what you need to do.†The court liberalized overnight visitation to
three weekends a month, with discretion to allow Mother to stay overnight with
the children at maternal grandmother’s home if things went well.
Mother
filed this timely appeal. Destiny, St.,
Jeannie, and S. joined in the appeal pursuant to section 395, subdivision
(b)(1), and filed a separate brief.
Subsequently,
after briefing was complete, we granted on January 17, 2013, a motion by
counsel for Destiny, St., Jeannie, and S. to take judicial notice of the minute
order of proceedings on November 16, 2012.
The minute order reflects that on November 16, the court
to Destiny, St., Jeannie, and S., ordered six months of reunification services,
continued the children’s current placement, and allowed unmonitored visitation,
with discretion to DCFS to allow weekend overnights and holiday visits. DCFS was ordered to evaluate the overnight
visits. The court also ordered family
counseling, and the minors remained dependent children of the court. The order states that the matter was
continued to April 10, 2013 for another section 388 hearing.
In her brief on this appeal, Mother’s counsel requests
that we reverse the May 31, 2012 denial of Mother’s section 388 petition
requesting that the children be returned to her care and she be provided family
reunification services. The children’s
counsel requests that we reverse the order denying Mother’s section 388
petition and remand the matter with instructions to hold a new hearing.
Given the
court’s subsequent order on November 16, 2012, all the relief requested in the
children’s brief and in Mother’s brief has been granted, with the exception
that the children remain in their placement.
The only relief requested and not granted is an order returning Destiny,
St., Jeannie and S. to the home of mother.
Section
388, subdivision (a), provides: “Any parent or other person having an interest in a child who is a
dependent child of the juvenile court . . . or the child
himself or herself . . . through a properly appointed
guardian may, upon grounds of change of circumstance or new evidence, petition
the court . . . to change, modify, or set aside any order
of court previously made or to terminate the jurisdiction of the court.†When the placement of the minor children is
in issue, “the burden of proof is on the moving party to show by a
preponderance of the evidence that there is new evidence or that there are
changed circumstances that make a change of placement in the best interests of
the child.†(In re Stephanie M.
(1994) 7 Cal.4th 295, 317.) “This
determination [is] committed to the sound discretion of the juvenile court, and
the trial court's ruling should not be disturbed on appeal unless an abuse of
discretion is clearly established.†(Id.
at p. 318.)
“[S]ection 388 really
is an ‘escape mechanism’ when parents complete a reformation in the short,
final period after the termination of reunification services but before the
actual termination of parental rights.
[Citation.]†(
519, 528.) “It is not enough for a
parent to show just a genuine change
of circumstances under the statute. The
parent must show that the undoing of the prior order would be in the best
interests of the child.†(
should consider the seriousness of the reasons for the dependency in the first
place, the strength of the existing bond between the parent and the child, and
“the degree to which the problem may be easily removed or ameliorated, and the
degree to which it actually has been.†(
Given the state of the record, we need not decide whether
the court abused its discretion in denying reunification services, as those
services have been restored to Mother by the order of November 16, 2012. That issue therefore is moot.
As for the remaining relief Mother requested, the
return of the four children to her home, we
the juvenile court did not abuse its discretion in determining that Mother did
not show the existence of changed circumstances that made a change of placement
in the best interests of the minors.
First, the reasons for the dependency were serious. Mother had a 22-year history of recurrent
drug addiction, in the course of which her children were removed from her in
1994, 1999, and 2007 (on the basis of abuse of an older daughter, while Mother
was on probation after a 2006 arrest for possession of a controlled substance)
before this case began with her children’s removal in 2011. The second factor weighs in Mother’s favor,
as the facts in support of Mother’s section 388 motion showed a strong bond
between Mother and her children, who desired to be returned to her and had
strong sibling bonds. (See
The third inquiry is the degree to which the
problem—Mother’s drug addiction—may easily be remedied, and the degree to which
it actually has been. “[E]ach child’s
best interests would necessarily involve eliminating the specific factors that
required placement outside the parent’s home [citation], here, Mother’s drug
addiction.†(In re Angel B. (2002) 97 Cal.App.4th 454, 463–464.) Drug abuse and addiction is an intractable
problem, as Mother’s repeated relapses show.
Her participation in an outpatient program is laudable, but even in the
program she completed, only eight months before the May 31, 2012 section 388
hearing, Mother tested positive for methamphetamine. The transcript of the section 388 hearing
shows that the court gave credit to Mother for her efforts, but balanced her
progress against her history and concluded that more time was necessary to
judge whether circumstances had changed.
The court exercised its discretion, and the denial of the section 388
petition’s request for an order returning the children to home of mother was
not an abuse of that discretion.
DISPOSITION
The May 31, 2012 court order denying Yvonne G.’s Welfare
and Institutions Code section 388 petition is affirmed.
NOT TO BE PUBLISHED.
JOHNSON,
J.
We concur:
MALLANO, P. J.
CHANEY, J.
name="_ftn1" title="">[1]
All further statutory references are to the Welfare and Institutions Code
unless otherwise indicated.
name="_ftn2" title="">[2]
The petition also alleged under section 300 subdivisions (b) and (g) that the
children’s incarcerated father, Javier M., had failed to provide them with the
necessities of life, placing them at risk of physical harm, damage, and
danger. We denied the father’s petition
for extraordinary writ challenging an order setting a permanent plan
hearing. (Javier M. v. Superior Court (Feb. 15, 2012, B237252) [nonpub.
opn.].) The petition also included an
allegation against Mother as to all the children under subdivision (j), which
was later dismissed.
