In re S.T. CA2/8 ( 2013 )

Filed 12/18/13 In re S.T. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re S.T., a Person Coming Under the B249356
Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK 58795)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
TERRY T.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Elizabeth
Kim, Juvenile Court Referee. Affirmed.
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.
******
Terry T. (father) appeals the juvenile court’s order denying his request to change a
court order denying him reunification services. Father contends the juvenile court abused
its discretion in finding father failed to show changed circumstances. We reject this
challenge, and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
1. 2004 Dependency Proceedings
S.T., father’s nine-year-old daughter, first came to the attention of the Los Angeles
County Department of Children and Family Services (DCFS) in November 2004. DCFS
received a referral alleging general neglect “after [S.T.] was born prenatally exposed to
cocaine and marijuana.”
On April 15, 2005, S.T. was declared a dependent of the court pursuant to Welfare
and Institutions Code section 300, subdivision (b).1 The petition, as later sustained,
alleged Caroline G. (mother) and father’s use of illicit drugs, their respective criminal
histories, and their failure to cooperate with DCFS’s maintenance contract placed S.T. “at
risk of physical and emotional harm and damage and create[d] a detrimental home
environment.” Father’s criminal history included “being [on] a register[y] of . . .
controlled substance offender[s] and multiple felony convictions [for] possession of a
controlled substance, possession of marijuana for sale, transport[ation]/[sale] of a
controlled substance, and inflict[ion] [of] corporal injury to a spouse.”
Reunification services were ordered for father on April 15, 2005. However, the
services were terminated on December 1, 2005.
On February 6, 2007, S.T.’s maternal grandmother, I.S., was granted legal
guardianship of S.T. S.T. remained in I.S.’s care and custody until her death on July 2,
2012.
2. Current Dependency Proceedings
On September 12, 2012, social worker Lia Jones visited S.T. at the home of her
paternal grandmother, Anne H. Father, Anne H. and S.T. were present at the time.
1 Undesignated statutory citations are to the Welfare and Institutions Code.
2
According to father, S.T. was in father’s care prior to I.S.’s death, but began to live with
Anne H. after I.S.’s death. Father maintained a relationship with S.T. and visited her
regularly over the years. Father denied any current domestic violence, drug abuse, or
mental health problems. Father stated “he was willing to do what was required to have
his daughter in his care” and wanted S.T. to remain in Anne H.’s home. He produced a
letter from Community Build verifying his enrollment in parenting classes, and requested
a drug test stating he “had been clean for years.” Father was subsequently tested for
drugs by DCFS, and the results were negative for all substances.2
S.T. confirmed father’s statements regarding her living situation. S.T. stated she
began to live with Anne H. after I.S.’s death in July 2012. According to S.T., father lived
with S.T. and Anne H. in Anne H.’s home. S.T. saw father all the time and denied seeing
father use drugs in the home. S.T. expressed her desire to reside with father, Anne H. or
her maternal cousin, Lashonda C.
On October 16, 2012, an unidentified person reported that S.T. was a victim of
general neglect and emotional abuse by mother and father. The reporter alleged the
following: (1) S.T. resided in the home of her deceased legal guardian with mother and
father; (2) mother and father used drugs in S.T.’s presence; (3) mother shouted
profanities at S.T.; and (4) mother and father were under the influence of substances
while caring for S.T.
In response to the information received on October 16, DCFS attempted to contact
S.T. but was unsuccessful. DCFS located and spoke to father at I.S.’s home. Father
denied the allegation of mother living in I.S.’s home and stated he was unaware of any
family members residing in the home. Father also denied the allegation of S.T. being in
mother’s care and custody.
2 Community Build is a nonprofit community development corporation that is
“dedicated to the revitalization of South Los Angeles communities through investment in
youth and commercial economic development.” ( (as
of Dec. 18, 2013).)
3
On October 17, 2012, S.T. was detained and placed in foster care due to I.S.’s
death and the need to further assess S.T.’s relatives. DCFS categorized S.T.’s family as
“high risk for future abuse and neglect” and recommended S.T. be referred for adoption.
Because of father’s history of substance abuse and his failure to comply with a prior case
plan, DCFS recommended the court deny family reunification services. However, as S.T.
and father maintained a relationship and regularly visited one another, DCFS
recommended, and the court ordered, monitored visitation for father.
On October 22, 2012, DCFS filed a supplemental petition for a more restrictive
placement on S.T.’s behalf. The petition, as later sustained, alleged the previous
disposition placing S.T. under I.S.’s care and custody was ineffective in the protection or
rehabilitation of S.T. (§ 387, subd. (b).) The petition alleged “[t]he child . . . has no
guardian to provide care, supervision and the necessities of life, including[] food, shelter,
clothing and medical care for the child, in that the child’s legal guardian/maternal
grandmother . . . is deceased. Such an absence of a guardian endangers the child’s
physical health and safety and places the child at risk of physical harm and damage.”
On November 20, 2012, S.T. was placed in Lashonda C.’s home after DCFS
conducted an inspection of Lashonda C.’s residence. Lashonda C. ensured S.T. would be
able to maintain contact with her parents and relatives. Lashonda C. stated she would
provide S.T. with a safe and nurturing home.
On November 26, 2012, a permanent plan of foster care and a specific goal of
legal guardianship were ordered by the court. The court denied reunification services to
father.
On February 25, 2013, more than seven years after father’s reunification services
were terminated, father filed a section 388 petition to change the juvenile court’s 2005
order to terminate reunification services. His request cited the following changed
circumstances: “The father is enrolled in an outpatient program through Medicure[3] and
3 Medi-Cure Health Services, Inc. (Medicure), is an outpatient alcohol, drug abuse
treatment and nutrition education program.
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is participating in domestic violence/anger management sessions, substance abuse
sessions and relapse prevention sessions. Additionally, the father has been drug testing,
and his results have all been negative.”
In support of his section 388 petition, father provided a letter from Medicure,
verifying his October 25, 2012 enrollment in the outpatient treatment program. As of
February 5, 2013, father attended the following Medicure sessions: (1) four of the
required 16 domestic violence/anger management sessions; (2) seven of the required 26
substance abuse sessions; and, (3) six of the required 26 relapse prevention sessions.
Father tested negative for illicit drugs on four separate occasions: (1) October 25, 2012;
(2) November 9, 2012; (3) December 14, 2012; and (4) January 24, 2013.
A section 366.26 hearing to determine the permanent plan was originally
scheduled for February 25, 2013. However, the matter was continued to May 28, 2013.
On April 9, 2013, father’s section 388 hearing was held. Father did not appear in
court for the hearing. The court denied father’s request to set a new contested section
388 hearing and denied father’s section 388 petition. The court found father alleged only
“changing circumstances,” and not changed circumstances. Father challenges the denial
of his section 388 petition.
DISCUSSION
Father contends the juvenile court abused its discretion when it denied his section
388 petition. Father argues the “juvenile court erred when it found that [his]
circumstances were merely changing.” Although he admittedly has an “extensive history
of drug-involved activities,” father contends there is “undisputed evidence [to]
demonstrate[] that he ha[s] dramatically changed his circumstances since 2004.” We
disagree.
“To prevail on a section 388 petition, the moving party must establish that new
evidence or changed circumstances exist so that the proposed change in the court’s order
would promote the best interests of the child. [Citations.] Unless the moving party
makes a prima facie showing of both elements, the petition may [be] denied without an
evidentiary hearing. [Citation.] The determination of whether to change an existing
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order is ‘committed to the sound discretion of the juvenile court, and [its] ruling should
not be disturbed on appeal unless an abuse of discretion is clearly established.’
[Citation.] An abuse of discretion occurs when the juvenile court has exceeded the
bounds of reason by making an arbitrary, capricious or patently absurd determination.
[Citation.]” (In re Marcelo B. (2012) 209 Cal.App.4th 635, 641-642.)
“[T]he essence of a section 388 motion is that there has been a change of
circumstances.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 531.) Father alleges his
October 25, 2012 enrollment and attendance in a 26-week outpatient treatment program
and the negative results of four random drug tests show a change of circumstances.
However, “[g]iven the severity of [father’s] drug problem the court could reasonably find
[his] sobriety between [the date of enrollment in the treatment program] and the date of
the [section 388 petition filing] was not particularly compelling.” (In re Mary G. (2007)
151 Cal.App.4th 184, 206.) Father’s drug use dates back to at least 1983. Father
suffered multiple arrests and criminal convictions related to the possession of narcotics
between 1983 and 2003. As a result of his drug use, father not only lost custody of S.T.,
but also of S.T.’s younger sibling, with whom he failed to reunify. In addition, although
father’s few month’s attendance in a treatment program is commendable, it is not enough
to overcome the eight years that have passed since the juvenile court’s 2005 order
terminating reunification services. (See In re Stephanie M. (1994) 7 Cal.4th 295, 317
[“[a]fter the termination of reunification services, the parents’ interest in the care, custody
and companionship of the child are no longer paramount,” and “‘the focus shifts to the
needs of the child for permanency and stability’”].)
While father’s efforts at rehabilitation are an improvement, they do not
demonstrate changed circumstances. (See In re C.J.W. (2007) 157 Cal.App.4th 1075,
1081 [finding three months of rehabilitation efforts for parents’ extensive histories of
drug use did not demonstrate changed circumstances]; In re Marcelo B., supra, 209
Cal.App.4th at p. 642 [concluding the father’s return to treatment did not guarantee that
he would achieve or maintain the sobriety required to parent the child].) Due to the
nature of drug addiction, “one must be ‘clean’ for a much longer period than 120 days to
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show real reform.” (In re Kimberly F., supra, 56 Cal.App.4th at p. 531, fn. 9; see In re
Cliffton B. (2000) 81 Cal.App.4th 415, 423-424 [noting the father’s “200 days [of
sobriety] was not enough to reassure the juvenile court that the most recent relapse would
be his last”].) Father’s rehabilitation efforts were not enough to demonstrate changed
circumstances.
In sum, there was no abuse of discretion in the juvenile court’s summary denial of
father’s section 388 petition.4
DISPOSITION
The order is affirmed.
FLIER, J.
WE CONCUR:
RUBIN, Acting P. J.
GRIMES, J.
4 Because we conclude father failed to show changed circumstances, we need not
address father’s argument that he and S.T. “shared a solid bond.” (Boldface omitted.)
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