In re K.B. CA1/1 ( 2013 )

Filed 12/20/13 In re K.B. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION ONE
In re K.B. et al., Persons Coming Under the
Juvenile Court Law.
SOLANO COUNTY HEALTH &
SOCIAL SERVICES,
Plaintiff and Respondent, A137860
v.
(Solano County
C.R., Super. Ct. Nos. J41132, J41128,
Defendant and Appellant. J41129)
INTRODUCTION
C.R. is the mother of five children, three of whom are the subject of this appeal.
She maintains the juvenile court erred in denying her Welfare and Institutions Code
section 3881 application to vacate the termination of reunification services based on her
enrollment in a residential treatment program. She also contends, should we reverse the
order denying her section 388 application, we should also reverse the order terminating
her parental rights. We affirm.
1
All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
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PROCEDURAL AND FACTUAL BACKGROUND
We set forth only those facts necessary to consideration of the issue on appeal.
Solano County Health and Human Services (Department) filed a petition in October
2011, alleging C.R. (Mother) placed her five children at risk of neglect or abuse due to
her extensive history of substance abuse, including methamphetamine and barbiturates.
The petition also alleged risk of abuse or neglect based on Mother’s history of “mental
and/or emotional problems and has been diagnosed with Major Depressive Disorder with
psychotic symptoms.” The petition further alleged Mother attempted to commit suicide
in September 2011 while her youngest child was in the home with her. Finally, the
petition alleged Mother and the children’s father engaged in domestic violence in the
presence of the children.
The juvenile court detained the minors, sustained the allegations in the petition,
and placed the three minors who are the subject of this appeal with their paternal aunt.
The parents were ordered to participate in reunification services.
At the six-month status review hearing in May 2012, the Department
recommended termination of reunification services. Mother had been arrested for
burglary and possession of paraphernalia in April 2012. She had not been in contact with
the Department or her family for the previous two months, nor had she complied with the
case plan objectives. Mother had been accepted into Project Aurora, an outpatient
substance abuse program, in February 2012 but was “discharged unsuccessfully” in
March 2012 “due to non-compliance based on her lack of attendance.”
In June 2012, the juvenile court terminated reunification services and set the
matter for a section 366.26 hearing. The section 366.26 hearing was ultimately continued
until December 12, 2012.
On December 10, 2012, Mother filed a section 388 application seeking to reinstate
reunification services based on her enrollment in a residential substance abuse treatment
program. The next day, the court denied the application without a hearing on the grounds
Mother failed to state new evidence or a change of circumstances.
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At the section 366.26 hearing on December 12, the court received and considered
a letter from Asian American Recovery Services regarding Mother’s participation in their
program. The court indicated the letter largely confirmed the representations in the
section 388 application, and affirmed the earlier ruling denying the petition. The court
then terminated parental rights.2
DISCUSSION
Mother maintains the juvenile court abused its discretion in denying her
section 388 application for modification without a hearing. The appellate court will not
reverse that decision unless the parent establishes the trial court abused its discretion. (In
re Casey D. (1999) 70 Cal.App.4th 38, 47.)
Section 388 provides, in relevant part, “(a)(1) Any parent or other person having
an interest in a child who is a dependent child of the juvenile court . . . may, upon
grounds of change of circumstance or new evidence, petition the court in the same action
in which the child was found to be a dependent child of the juvenile court . . . for a
hearing to change, modify, or set aside any order of court previously made or to terminate
the jurisdiction of the court. The petition shall . . . set forth in concise language any
change of circumstance or new evidence that is alleged to require the change of order or
termination of jurisdiction. [¶] . . . [¶] (d) If it appears that the best interests of the child
. . . may be promoted by the proposed change of order . . . the court shall order that a
hearing be held and shall give prior notice . . . .” (§ 388, subds. (a), (d).)
“Section 388 permits a parent to petition the court on the basis of a change of
circumstances or new evidence for a hearing to change, modify or set aside a previous
order in the dependency. The parent bears the burden of showing both a change of
2
Mother’s notice of appeal is from both the denial of the section 388 application
and the subsequent order terminating parental rights. As noted by the Department, she
did not advance any argument in her opening brief as to the order terminating parental
rights. We therefore assume she appealed from the termination order only to insure it
could be reversed if she were to prevail on her challenge to the denial of her section 388
application. Since she has made no arguments in connection with the termination order,
she has waived any substantive challenge to it. (See In re Ricky H. (1992)
10 Cal.App.4th 552, 562.)
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circumstance exists and that the proposed change is in the child’s best interests.” (In re
Casey D., supra, 70 Cal.App.4th at p. 47.)
“A petition under this section must be liberally construed in favor of its
sufficiency. (Cal. Rules of Court, rule [5.570](a).) Thus, if the petition presents any
evidence that a hearing would promote the best interests of the child, the court must order
the hearing. [Citation.] The court may deny the application ex parte only if the petition
fails to state a change of circumstance or new evidence that even might require a change
of order or termination of jurisdiction.” (In re Angel B. (2002) 97 Cal.App.4th 454, 460–
461 (Angel B.), italics omitted.) However, a “petition which alleges merely changing
circumstances and would mean delaying the selection of a permanent home for a child to
see if a parent, who has repeatedly failed to reunify with the child, might be able to
reunify at some future point, does not promote stability for the child or the child’s best
interests. [Citation.] ‘ “[C]hildhood does not wait for the parent to become adequate.” ’
[Citation.]” (In re Casey D., supra, 70 Cal.App.4th at p. 47.)
In her December 10, 2012 section 388 application, Mother sought to vacate the
orders terminating reunification services and setting a hearing pursuant to section 366.26.
She alleged she “has been successfully participating in a residential treatment program,
Asian Recovery Services, . . . CA since 9/14/12. She regularly participates in substance
abuse treatment, maintains sobriety as verified through testing, attends anger
management and parenting classes.” Mother “meets with her psychiatrist weekly and
follows her doctor’s medical recommendations. She also regularly meets with her
counselors regarding safe coping skills, expressive arts, and management of behaviors
related to issues that led to the intervention of the Department . . . . [Mother’s]
anticipated completion date is 3/14/13.” She further alleged “[t]he children know and
recognize [Mother] as their mother and are bonded to her. As she has addressed the
issues that led to court intervention, it is in the children’s best interest to reunify with
their mother now that the underlying issues have been addressed.” Mother also submitted
a letter from Asian American Recovery Services, which stated Mother entered their
program on September 14, 2013 and was in “Phase I, Orientation, of our three Phase
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program. In regards to her treatment, [Mother] has had some difficulty adjusting and . . .
this struggle is a normal part of the process and a great opportunity for learning. She is
responding to treatment and is mak[ing] good progress engaging in her treatment.”
The court’s analysis in Angel B. is instructive. (Angel B., supra, 97 Cal.App.4th
454.) There, the mother sought to change prior orders to reinstate reunification services
and grant her supervised custody of the minor. (Id. at p. 459.) The mother alleged the
following change in circumstances: she had “enrolled in a residential drug treatment
program, consistently tested clean for four months, completed various classes, and even
obtained employment. She had regular visits with [the minor], which went well.” (Ibid.)
The court held the mother had failed to make a prima facie showing entitling her to a
hearing on her section 388 application. (Angel B., at p. 462.) It explained “there was no
evidence that Mother was ready to assume custody of [the minor] or provide suitable care
for her; while she had completed the drug program, the time she had been sober was very
brief compared to her many years of drug addition . . . . Nor was there evidence that she
had a housing situation suitable for [the minor].” (Id. at p. 463.)
Mother’s section 388 application failed to demonstrate even the level of changed
circumstances present in Angel B. Mother only enrolled in a residential substance abuse
program after having reunification services terminated and being arrested. She had been
in the program for only three months, was still in the “orientation” stage, and was having
difficulty adjusting. Mother was not scheduled to complete the residential program until
March 2013. She had not visited regularly with the minors prior to enrolling in the
substance abuse program, and was not doing so while in the program because she was
still in the “blackout period” in which she was not allowed to speak with family. There
was no evidence she had suitable housing or was ready to assume custody of the minors.
Mother also failed to allege any reason why, at this stage of the dependency
proceedings, the proposed change was in the minors’ best interests. While Mother’s
participation in substance abuse treatment is laudable, it is not sufficient to state a prima
facie showing entitling her to a hearing.
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DISPOSITION
The orders from which Mother appeals are affirmed.
_________________________
Banke, J.
We concur:
_________________________
Dondero, Acting P. J.
_________________________
Becton, J.

Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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