In re N.S. CA2/2 ( 2022 )

Filed 9/7/22 In re N.S. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re N.S., a Person Coming B315393
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 19CCJP00861)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
NATALIE S.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Stephen C. Marpet, Juvenile Court Referee. Affirmed.
Cristina Gabrielidis, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and David Michael Miller, Deputy
County Counsel, for Plaintiff and Respondent.
******
Natalie S. (mother) appeals from an order terminating her
parental rights to her son, N.S. (born February 2019). Mother
challenges the juvenile court’s ruling denying her petition filed
pursuant to Welfare and Institutions Code section 388,1 which
sought reinstatement of family reunification services in order to
avoid termination of parental rights. Mother also challenges the
subsequent order terminating her parental rights. We find no
error and affirm the juvenile court’s orders.
FACTUAL AND PROCEDURAL BACKGROUND
Initial investigation and detention
In February 2019, the Los Angeles County Department of
Children and Family Services (DCFS) received a referral alleging
that mother tested positive for amphetamines at the time of
N.S.’s birth. N.S. also tested positive for amphetamines at birth.
Mother admitted to using street drugs since she was 18 years old.
Mother previously completed a drug treatment program but
relapsed several times. Mother informed the reporting party that
she was on amphetamines until she found out that she was
pregnant in her second trimester and then began using once a
day. Mother admitted having untreated mental health issues
1 All further statutory references are to the Welfare and
Institutions Code.
2
and no psychiatrist. Mother had no permanent address but
occasionally resided with maternal great-grandfather.
In March 2017, the juvenile court sustained a petition on
behalf of N.S.’s half sibling, Ni.S., based on mother’s substance
abuse and mental health issues. Mother had been living out of a
car and exposed the child to methamphetamine. Mother would
get high in front of the child. The social worker for Ni.S. reported
that mother did not complete court-ordered services and refused
to submit to random or on-demand drug tests. In February 2018,
the juvenile court terminated mother’s parental rights over Ni.S.
The half sibling’s prospective adoptive parents were willing to
care for newborn N.S.
In an interview with the social worker, mother disclosed
she had been using methamphetamines since the age of 172 and
had previously enrolled in treatment but could not recall the year
she enrolled or for how long she had participated in services.
Mother provided different answers regarding her drug usage.
Initially she stated that she had last used a week earlier, then
stated it was only on the weekends, then stated it was months
from her last use. After her first child was removed, mother
became more dependent on drugs, having no reason to stay sober.
Mother was diagnosed with bipolar disorder at the age of
seven. She took medication and participated in therapy from the
age of seven to the age of 18. When mother got tired of
medication and therapy, she stopped both.
Two days after his birth, N.S. was placed in the home of his
half sibling and caretakers. On February 7, 2019, DCFS filed a
2 Mother was 25 years old at the time the proceedings
commenced.
3
detained petition on behalf of N.S. alleging violations of section
300, subdivisions (b)(1) and (j). At the February 8, 2019
detention hearing, the court found there was a prima facie case
that N.S. was described by section 300 and ordered him detained.
The court ordered DCFS to provide mother with referrals for
services and granted her monitored visitation.
Adjudication and disposition
On March 21, 2019, DCFS filed a first amended petition
alleging that father had a criminal history for substance abuse
related offenses, had a history of substance abuse and was a
current user of methamphetamines.3 The juvenile court received
the first amended petition and dismissed the original petition.
In a jurisdiction/disposition report filed in March 2019,
DCFS reported that mother failed to visit the child during his
first month of life. DCFS asked that mother not be granted
reunification services, as the juvenile court had ordered
termination of reunification services and parental rights for Ni.S.
Mother had not made a reasonable effort to treat the problems
that led to the removal of the half sibling. Thus, pursuant to
section 361.5, subdivision (b)(10), (11) and (13), the juvenile court
was not required to provide reunification services.
At the April 17, 2019 adjudication hearing, the juvenile
court sustained the first amended petition as pled and found that
N.S. was described by section 300, subdivisions (b) and (j). The
court set the disposition hearing for contest regarding whether
mother was entitled to reunification services. The court granted
mother monitored visitation twice a week for two hours per visit
3 Father was not involved in the dependency proceedings and
is not a party to this appeal.
4
and encouraged her to make progress at the drug treatment
program in which she had enrolled.
In February 2019, mother had enrolled in a residential
drug treatment program. She completed several components of
the program before testing positive for methamphetamine and
attempting to bring drugs into the facility in May 2019. Mother
was discharged from the drug program a couple of weeks short of
completing treatment services.
At the May 30, 2019 contested disposition hearing, the
juvenile court declared N.S. a dependent of the court, removed
the child from parental care, denied the parents reunification
services, and scheduled a selection and implementation hearing
pursuant to section 366.26. Mother was granted monitored
visitation with N.S.
Thereafter, the proceedings were continued numerous
times due to the COVID-19 pandemic and notice issues for the
alleged father, who was incarcerated.
Permanency planning reports
In September 2019, DCFS reported that the half sibling’s
caretakers wanted to adopt N.S., who was thriving in their home
and was closely bonded to the caretakers and his half sibling.
N.S. received regional center services to address developmental
deficiencies, including cognitive and social-emotional skills.
Mother did not visit N.S. regularly. After failing to visit
N.S. for the first month of his life, mother missed several visits,
appeared exhausted when she did visit, and left a visit early to
run errands. Mother visited N.S. twice in March 2019, twice in
April 2019, once in May 2019, and three times in June 2019.
Mother did not visit N.S. at all in July or August 2019. The child
did not recognize mother during the infrequent visits. Mother
5
appeared frustrated by N.S. and displayed “very minimal care”
toward the child. During one visit, mother appeared to be under
the influence of drugs and fell asleep while holding the child. In
January 2020, DCFS reported that mother had not visited N.S. in
more than four months and last saw the child in September 2019.
As N.S. was thriving in the care of his caretakers, DCFS
recommended adoption. The caregivers were approved to adopt
N.S. In October 2020, DCFS reported that N.S. had a strong
bond with his half sibling and the caretakers, who were the only
parents the child had ever known. Mother had not visited N.S. in
more than one year.
Mother’s arrest, birth of third child, and section 388
petitions
In April 2020, mother was arrested for possession and
purchase of narcotics.
In November 2020, mother tested positive for
methamphetamines during a prenatal visit.
In December 2020, mother enrolled in a substance abuse
program.
In January 2021, mother gave birth to her third child.
DCFS filed a section 300 petition, and the juvenile court released
the newborn to mother’s care with several conditions in place,
including the condition that mother continue in her substance
abuse treatment program.
In February 2021, DCFS noted that mother had not visited
two-year-old N.S. since September 2019. N.S. remained well
bonded to his caretakers and half sibling. In February 2021,
mother filed a petition pursuant to section 388 requesting
custody of N.S. or reunification services. Mother provided a letter
from her counselor, who stated that mother was admitted into
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Stepping Stones residential treatment facility on December 4,
2020, and had been in the facility 24 hours a day, seven days a
week. Stepping Stones provided a sober living environment for
women and their children. Mother had been attending group
meetings, met with her counselor weekly, was required to
randomly drug test and had tested negative. Mother maintained
attendance in groups and provided care to her newborn baby.
The juvenile court declined to set mother’s section 388 petition
for hearing.
On March 3, 2021, mother graduated from Stepping Stones
and transitioned to Welcome Home sober living in Pomona.
Mother received certificates in domestic violence and parenting
and mother’s counselor stated that mother actively participated
in groups. Mother provided 34 random drug tests and all results
were negative.
On March 10, 2021, mother entered outpatient substance
abuse treatment at Prototypes women’s center. The center
offered substance abuse rehabilitation for women with children
and offered individual counseling, group therapy and classes. All
clients were randomly drug tested and participated in Narcotics
Anonymous (NA) and Alcoholics Anonymous (AA) groups.
In April 2021, after 19 months of failing to visit N.S.,
mother resumed monitored visits with the child. Mother had
Zoom visits with N.S. as well as monitored in-person visits for
two hours every Sunday. N.S. did not recognize mother, but was
friendly with her. Mother was overwhelmed and required
assistance as she tried to care for both her newborn and N.S.
Mother missed a scheduled visit on May 2, 2021, as she had
recently moved.
7
In April 2021, mother filed a second petition pursuant to
section 388 requesting custody of N.S. or reunification services.
The juvenile court again declined to set mother’s section 388
petition for hearing.
In August 2021, DCFS filed a report indicating that N.S.
was thriving in the care of his caretakers, whom he identified as
his parents, and enjoyed living with his half sibling. DCFS
pointed out that mother did not show any interest in N.S.’s life
until he turned two years old. Thereafter, mother was
inconsistent with visits and unable to safely care for N.S. during
the short, weekly monitored visits. N.S. did not recognize mother
and thought she was a friend of his caretakers. Mother visited
the child four times in April 2021; twice in May 2021; twice in
June 2021; three times in July 2021; and once in August 2021.
In August 2021, mother filed her third section 388 petition,
requesting custody of N.S. or reunification services. Mother
argued that she had completed her case plan objectives and had
custody of her newborn. Mother argued that it was not in the
best interest of N.S. to be separated from his mother and little
sister.
The juvenile court scheduled mother’s section 388 petition
for a hearing the same day as the section 366.26 selection and
implementation hearing.
DCFS recommended that the juvenile court deny mother’s
section 388 petition. Mother lived in an outpatient drug program
with her youngest child. Mother continued participating in
services but missed a drug test in May 2021, tested positive for
codeine in August 2021, and failed to submit to a drug test in
8
August 2021.4 DCFS noted mother’s poor attendance at visits
with N.S., including cancellation of all her in-person visits for
September 2021.5 N.S. did not recognize mother as a parent, and
mother continued to be overwhelmed in caring for the child
during visits. During a recent visit with mother, N.S. stated, “I
wanna go home now,” on three separate occasions. The child also
expressed that he did not want to visit mother. In contrast, the
child had a strong bond with his caretakers and his half sibling,
with whom N.S. lived since he was two days old.
Denial of section 388 petition and termination of parental
rights
The section 388 hearing and the section 366.26 selection
and implementation hearing took place on September 27, 2021.
Mother was present and testified that she had been sober
since December 4, 2020, and that she was on step 5 of a 12-step
program. Mother was not under the care of a psychiatrist or
4 Mother reported that she had two teeth extracted and was
prescribed Tylenol with codeine in it. She was unaware of the
codeine until the social worker brought the positive drug test to
her attention. Mother immediately stopped taking the
medication. She reported that she did not abuse it, and all of her
medications were administered by Prototypes staff.
5 Mother reported that the visits were cancelled because
mother and her daughter were sick. When they recovered,
mother had a Zoom visit with N.S., but N.S. did not want to talk
to her and covered his face. At trial, mother testified that she
missed in-person visits with N.S. during the last four weeks
because her daughter was sick with COVID-19. However the
record does not reveal a diagnosis of COVID-19. Instead, the
child had “Acute bronchitis/pneumonia unspecified organism.”
COVID-19 test results for both mother and child were negative.
9
taking prescribed medications to address her mental health.
Mother testified to her relationship with N.S.
DCFS argued that mother had not met her burden of
showing either changed circumstances or that granting the
section 388 petition would be in the best interests of N.S. The
juvenile court agreed, finding mother abused drugs for many
years and only recently took her sobriety seriously. The court
further noted that N.S. lived with the caretakers since birth and
it would not be in the child’s best interests to provide mother
with reunification services for a chance to reunify at some
unknown date in the future. The court denied mother’s section
388 petition and proceeded to the section 366.26 hearing.
Turning to the section 366.26 hearing, the juvenile court
found that no exception to termination of parental rights applied,
and terminated mother’s parental rights. N.S.’s caretakers were
designated as N.S.’s prospective adoptive parents and granted
the holders of the child’s educational rights.
Notice of appeal
On September 27, 2021, mother filed a notice of appeal.
DISCUSSION
I. Applicable law and standard of review
Section 388 allows a parent to petition the juvenile court
“upon grounds of change of circumstance or new evidence . . . to
change, modify, or set aside any order of court previously
made . . . .” (§ 388, subd. (a)(1).) The parent has the burden to
prove both (1) a change of circumstance or new evidence that
warrants the proposed modification of a prior order and (2) that
the proposed modification is in the best interests of the child.
(§ 388, subd. (a); In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
10
Section 388 “‘provides the “escape mechanism” that . . . must be
built into the process to allow the court to consider new
information.’” (In re Mickel O. (2011) 197 Cal.App.4th 586, 615
(Mickel O.).)
The petitioner must show changed, not changing,
circumstances. (Mickel O., supra, 197 Cal.App.4th at p. 615.)
“The change of circumstances or new evidence ‘must be of such
significant nature that it requires a setting aside or modification
of the challenged prior order.’” (Ibid.) Even if a petitioner shows
a genuine change of circumstance, the petitioner must also “‘show
that the undoing of the prior order would be in the best interests
of the child.’” (Ibid.) “[A]fter reunification services have
terminated, a parent’s petition for either an order returning
custody or reopening reunification efforts must establish how
such a change will advance the child’s need for permanency and
stability.” (In re J.C. (2014) 226 Cal.App.4th 503, 527.)
The standard of review for a juvenile court’s order denying
a section 388 petition is abuse of discretion. (In re G.B. (2014)
227 Cal.App.4th 1147, 1158.) The juvenile court’s determination
“should not be disturbed on appeal unless an abuse of discretion
is clearly established.” (In re Stephanie M. (1994) 7 Cal.4th 295,
318.) Under this standard, “‘“a reviewing court will not disturb
that decision unless the trial court has exceeded the limits of
legal discretion by making an arbitrary, capricious, or patently
absurd determination [citations].”’” (Ibid.)
II. Mother’s section 388 petition
Mother argues that the juvenile court abused its discretion
in denying her last section 388 petition. Mother argues that she
established a change of circumstance because she completed a
substance abuse program, maintained sobriety, and had been
11
successfully caring for N.S.’s sibling for eight months. Mother
argues that it was in the best interests of N.S. to grant the
section 388 petition because N.S. said he loved and missed them
both. We review mother’s arguments below, and conclude that
the juvenile court did not abuse its discretion in denying mother’s
petition.
A. Changed circumstances
The juvenile court addressed mother’s substance abuse,
noting its familiarity with the family since 2017 until December
2020. Mother had chosen to use and abuse drugs. Mother lost
one child and had not had N.S. in her custody since his birth two
years earlier. Despite this evidence, mother argues that she
sufficiently addressed the substance abuse concerns. Mother
completed an inpatient substance abuse treatment program, was
participating in an outpatient program, completed classes
including parenting, anger management and nurturing, tested
negative for drugs, and most significantly, had safely cared for
N.S.’s younger sibling for eight months. Mother was seeking
time to reunify with N.S.
Mother argues that the juvenile court did not address the
changed circumstances element of section 388, thus “the only
conclusion to be drawn from its silence on the issue is that
Mother satisfied her burden of proof.” On the contrary, we find
that the trial court did address this element, noting that mother
had a long history of substance abuse and only recently started
taking her sobriety seriously. The court noted mother’s drug
abuse had prevented mother from having N.S. in her care and
custody for the first two years of his life. Even if the court had
not addressed this first element of the section 388 test, we must
12
resolve any ambiguities in favor of affirmance. (Winograd v.
American Broadcasting Co. (1998) 68 Cal.App.4th 624, 631.)
The trial court did not abuse its discretion in determining
that mother’s recent efforts in achieving sobriety were
insufficient to show truly changed circumstances. Mother had
been abusing drugs since the age of 17. Her parental rights to
her oldest child were terminated after she failed to address her
substance abuse and mental health issues. Mother had multiple
relapses despite completing drug programs in the past. Mother
and N.S. tested positive for amphetamines at the time of the
child’s birth, and mother admitted to frequent drug use over the
course of the prior eight years. In May 2019, mother was
discharged from her rehabilitation facility after testing positive
for methamphetamine and attempting to bring drugs into the
facility. In April 2020, mother was arrested for purchase and
possession of narcotics. In November 2020, mother tested
positive for methamphetamines during a prenatal visit. It was
not until December 2020, approximately 10 months prior to the
hearing on mother’s section 388 petition, that mother enrolled in
a substance abuse program. Under the circumstances, it was
well within the juvenile court’s discretion to determine that
mother had not demonstrated sufficiently changed circumstances
or that she could remain drug-free to provide N.S. with a stable
living environment.
Juvenile courts have recognized that chronic drug use is
not easily resolved. In In re Amber M. (2002) 103 Cal.App.4th
681, 686, for example, a mother had completed residential drug
treatment and had been clean for 372 days. The mother was on
step 3 of her 12-step program. Under those circumstances, the
mother was considered “in the early stages of recovery.” (Ibid.)
13
Although the mother in Amber M. had completed her domestic
violence and sexual abuse treatment, the juvenile court did not
abuse its discretion in determining that the mother was merely
“progressing in treatment.” (Id. at p. 687.)
Mother in this matter had even less time abstaining from
drug use. Given her long history of substance abuse, the juvenile
court did not err in determining that mother showed changing,
but not changed, circumstances. (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”].)
The juvenile court’s determination that mother had not
shown sufficiently changed circumstances to warrant granting of
her section 388 petitions was not an abuse of the court’s
discretion.
B. Best interests of the child
The juvenile court emphasized that mother’s requested
change of order would not be in N.S.’s best interests. Two-year-
old N.S. had been removed from mother and placed in the home
of his caregivers and half sibling when he was two days old. N.S.
thrived in the home and bonded with his caregivers and his half
sibling over the course of the next two and a half years. The
caretakers were the only parents he had ever known. In contrast,
mother had failed to visit the child during the first months of his
life, and visited sporadically and infrequently. During a break in
visitation, mother went for more than a year and a half without
having any contact with the child. During her visits, mother
appeared unable to care for the child and became frustrated with
him. N.S. did not recognize mother as his mother and at times
expressed that he did not want to visit with mother. During a
14
recent visit, N.S. asked his caretakers if he could go home on
three separate occasions.
In discussing the best interest element, the court stated
that N.S. lived with the caretakers since birth and it would not be
in the child’s best interests to provide mother with reunification
services for a chance to reunify at some unknown date in the
future. The court was correct to focus on N.S.’s need for
permanency at this stage of the proceedings. The presumption
that arises after termination of reunification services is “that
continued care is in the best interest of the child.” (In re
Marilyn H. (1993) 5 Cal.4th 295, 310.) The presumption is a
rebuttable one, but it requires “more than a last-minute oral
attempt by a parent to delay permanency for a child who has
already spent as much as 22 months in out-of-home placement.”
(Ibid.) On the eve of a section 366.26 hearing, a child’s interest in
stability is the court’s foremost concern and generally outweighs
any interest in reunification. (In re J.C. (2014) 226 Cal.App.4th
503, 526-527 [recognizing that the juvenile court’s assessment of
§ 388 petitions filed after reunification efforts end must recognize
the law’s shift towards promoting the child’s need for permanency
and stability at later stages of dependency proceedings].) Here,
N.S. had been in a stable and loving home with the caregivers
and his half sibling for more than two years. He did not
recognize mother as his mother, and knew her as merely a
friendly acquaintance. Under the circumstances, the juvenile
court did not abuse its discretion in determining that N.S.’s need
to maintain stability outweighed any benefit he might gain from
reunification services with mother.
A court acts within its discretion when it determines that
“after a child has spent a substantial period in foster care and
15
attempts at reunification have proved fruitless, the child’s
interest in stability outweighs the parent’s interest in asserting
the right to the custody and companionship of the child.”
(Jasmon O., supra, 8 Cal.4th at pp. 419-420.) In this case, the
record supported the juvenile court’s decision that permanency
was of the utmost importance for N.S. The court did not abuse
its discretion in so holding.
III. Termination of parental rights
Mother’s sole argument as to termination of her parental
rights is that the juvenile court erred in terminating her parental
rights because her section 388 petition should have been granted.
Mother relies on In re Hunter S. (2006) 142 Cal.App.4th
1497, 1509, in which the reviewing court found that the juvenile
court erred in failing to grant mother’s modification petition
requesting visitation and therefore reversed an order terminating
parental rights. Hunter S. is distinguishable. There, the mother
was denied virtually all court-ordered visitation for
approximately 30 months due to the minor’s refusal to visit. (Id.
at pp. 1500-1505.) Under those circumstances, the juvenile court
essentially abdicated its responsibility regarding visitation for
the child. The reviewing court reversed so that the juvenile court
could rectify “three years of error and judicial inattention” with
respect to visitation. (Id. at pp. 1507-1508.) Here, in contrast,
mother’s failure to visit was not the fault of the court. Mother
admits that she was inconsistent with visitation for the first year
of the dependency but argues that, thereafter, her visitation was
impacted by COVID-19. The record does not establish that
mother was prevented from visiting with N.S. due to the impact
of COVID-19. Instead, the record reveals that mother’s failure to
create a bond with N.S. during the early stage of his life was due
16
to her failure to address her substance abuse issues and her
inconsistent visitation.
We have determined that the juvenile court did not abuse
its discretion in denying mother’s section 388 petition. Therefore,
we affirm the order terminating mother’s parental rights.
DISPOSITION
The orders are affirmed.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
ASHMANN-GERST, J.
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