In re M.S. CA4/1 ( 2021 )

Filed 9/28/21 In re M.S. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re M.S., a Person Coming Under
the Juvenile Court Law.
D078954
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. SJ12981D)
Plaintiff and Respondent,
v.
L.F.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Kimberlee A. Lagotta, Judge. Affirmed.
Konrad S. Lee, under appointment by the Court of Appeal, for
Defendant and Appellant.
Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy
County Counsel, and Lisa M. Maldonado, Deputy County Counsel, for
Plaintiff and Respondent.
L.F. (Mother) appeals an order denying her Welfare and Institutions
Code,1 section 388 petition to return her daughter M.S. to her care based on
a change in circumstances. The order was entered at the same hearing as the
juvenile court’s order terminating parental rights and finding M.S. adoptable
at her selection and implementation hearing. (§ 366.26.) We conclude that
the juvenile court did not err in making its ruling and therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND2
In September 2016, Mother gave birth to M.S. while she was
incarcerated. The San Diego County Health and Human Services Agency
(the Agency) petitioned the juvenile court after M.S. was left with no
caregiver, but the court dismissed the petition in January 2017 when Mother
was released from custody. M.S.’s biological father (Father) was identified,
but he was then deported to Mexico.3 Mother accepted voluntary services
and was reunited with M.S.
In July 2018, the Agency again petitioned the juvenile court under
section 300, subdivision (b), on behalf of one-year-old M.S. The Agency
alleged that there was a substantial risk that M.S. would suffer serious
physical harm or illness due to Mother’s erratic behavior when under the
influence of narcotics while caring for M.S.
1 Further statutory references are to the Welfare and Institutions Code
unless otherwise stated.
2 “In accord with the usual rules on appeal, we state the facts in the
manner most favorable to the dependency court’s order.” (In re Janee W.
(2006) 140 Cal.App.4th 1444, 1448, fn. 1.)
3 Father is not a party to this appeal and the proceedings as they relate
to him are not discussed in the opinion.
2
As discussed in the detention report, the petition arose from an
incident in which the police responded to a call after M.S. choked on food and
could not breathe. Mother and M.S. were transported to the hospital, where
Mother began to act erratically while holding M.S. Mother admitted that she
had been using drugs and drinking. Mother was arrested and M.S. was
taken to the Polinsky Children’s Center when no relatives could be located.
A social worker later learned that Mother had been evicted from her
apartment several months earlier. A neighbor reported that Mother and
M.S. had been living on the street. M.S. had been diagnosed with a heart
defect and Mother had failed to attend multiple medical appointments.
Based on this information, the juvenile court found that the Agency
had made an adequate showing that M.S. was a person described by section
300, subdivision (b), and ordered her detained in out-of-home care.
In its initial jurisdiction report filed in August 2018, the Agency noted
that M.S. was currently living at a licensed foster home. Mother denied she
had been using drugs on the day that M.S. was detained at the hospital and
denied she was currently using drugs. In an addendum report, the Agency
noted that Mother had agreed to drug testing and tested negative. Mother’s
probation officer was also able to vouch for Mother’s repeated negative drug
test results. However, Mother had failed to begin drug treatment.
At the jurisdiction and disposition hearing in September 2018, the
juvenile court sustained the allegations of the petition under section 300,
subdivision (b). The court ordered reunification services for parents and
placed M.S. in a foster home.
In advance of the six-month review hearing, the Agency reported that
Mother had seen her appointed therapist only once and was struggling due to
the sudden death of her fiancé. Mother had not been drug tested and was not
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participating in a substance abuse program. Mother subsequently entered an
inpatient program where she began to successfully participate in multiple
services. However, by June 2019, Mother had been discharged from the
inpatient program after repeatedly returning late at night following court
hearings. Thereafter, the Agency was unable to locate Mother. At the six-
month review hearing, the court found Mother’s progress in reunification
services “has been minimal,” but ordered reunification services to continue
for another six months while M.S. continued in her current placement.
In its next review report, the Agency recommended that reunification
services be terminated and the matter be set for a section 366.26 hearing.
The Agency was unaware of Mother’s whereabouts despite best efforts to
locate her and she had not visited M.S. for several months. Later, the Agency
found Mother, who was incarcerated and being held at a security level at
which she was not permitted to participate in services. Mother told the social
worker that she expected to be released soon into another inpatient program.
At a contested 12-month review hearing in October 2019, the juvenile
court terminated reunification services and set the matter for a selection and
implementation hearing pursuant to section 366.26.
Thereafter, the Agency recommended that the court terminate parental
rights and find M.S. to be adoptable. In an assessment report, the social
worker noted that Mother was released from custody in November 2019 and
entered an inpatient program. Her release allowed Mother to resume visits
with M.S. Mother completed her inpatient program and informed the social
worker that she was transitioning to a sober living facility. In an addendum
report, the Agency noted that Mother had completed her inpatient program
and had enrolled in mental health services and individual therapy.
4
Approximately one year later, in September 2020, Mother filed a
petition pursuant to section 388 asking the court to change M.S.’s placement
to return her to Mother’s care. Mother stated she had made “enormous
progress” in services in the past year, had remained sober for approximately
10 months, and was continuing to participate in services without any help
from the Agency following the court’s termination of reunification services.
In response, the Agency asked for a continuance, which the juvenile court
granted, to allow time to assess Mother’s progress. At an interim hearing,
the juvenile court found that Mother had established a prima facie showing of
changed circumstances and set the matter for an evidentiary hearing to
coincide with the section 366.26 hearing.
In an addendum report, the Agency noted that it had received reports
of Mother drinking and driving while caring for her new infant son and
explained she had provided conflicting reports regarding where she was
living. Mother’s sobriety sponsor also informed the social worker that she
stopped working with Mother because she believed Mother was not being
honest and forthcoming. In a final addendum report filed immediately before
the hearing, the Agency noted that Mother had dropped out of contact with
the Agency for several weeks. Mother’s probation officer was also unable to
locate Mother and told the social worker that Mother had not been compliant
with her probation requirements. The Agency had received subsequent
reports that Mother was neglecting her infant son and was suspected to be
using methamphetamine again. After a warrant was issued for her arrest,
Mother was located and informed the social worker that she was entering a
new sober living facility. The Agency continued to recommend that parental
rights be terminated and that the court select a permanent plan of adoption.
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Mother testified at the hearing on both her section 388 petition and the
section 366.26 proceedings in April 2021. She testified that she was
currently living in a sober living home with her son. She stated that she had
been sober since August 2019. Mother detailed the services she had
completed and continued to attend since the court terminated reunification
services.
The court first considered Mother’s section 388 petition. The juvenile
court found Mother had not established “a true change of circumstances that
warrants placement in the best interest of the minor.” The court
characterized Mother’s circumstances as “a little roller coaster. There’s a
stable period. And then [Mother] falls off in that stability. And then she
comes up to a place where we’re hoping she will become stable again.” The
court concluded that given the length of these proceedings, M.S. “deserves the
stability that a sober, stable, and caring caregiver could give to this child.”
Turning to the section 366.26 issues, the juvenile court concluded that
M.S. was generally and specifically adoptable and that none of the statutory
exceptions to termination of parental rights existed. Accordingly, the court
terminated parental rights.
Mother appealed.
DISCUSSION
On appeal, Mother challenges only the juvenile court’s order denying
her petition filed pursuant to section 388 and does not challenge the order
terminating parental rights. Section 388 provides an “escape mechanism”
that allows a parent to petition the juvenile court to change, modify, or set
aside a previous order on grounds of changed circumstances or new evidence.
The petitioning parent bears the burden of showing by a preponderance of
the evidence that there is new evidence or changed circumstances that make
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a change in placement in the best interests of the child. (In re Stephanie M.
(1994) 7 Cal.4th 295, 317.) “After the termination of reunification services,
the parents’ interest in the care, custody and companionship of the child are
no longer paramount. Rather, at this point ‘the focus shifts to the needs of
the child for permanency and stability . . . .’ [Citation] A court hearing a
motion for change of placement at this stage of the proceedings must
recognize this shift of focus in determining the ultimate question before it,
that is, the best interests of the child.” (Ibid.)
“In considering whether the petitioner has made the requisite showing,
the juvenile court may consider the entire factual and procedural history of
the case. [Citation.] The court may consider factors such as the seriousness
of the reason leading to the child’s removal, the reason the problem was not
resolved, the passage of time since the child’s removal, the relative strength
of the bonds with the child, the nature of the change of circumstance, and the
reason the change was not made sooner. [Citation.] In assessing the best
interests of the child, ‘a primary consideration . . . is the goal of assuring
stability and continuity.’ ” (In re Mickel O. (2011) 197 Cal.App.4th 586, 616
(Mickel O.).)
As Mother acknowledges, we review the juvenile court’s decision under
the abuse of discretion standard of review. (In re G.B. (2014) 227 Cal.App.4th
1147, 1158; In re Angel B. (2002) 97 Cal.App.4th 454, 460 (Angel B.).) A
proper exercise of discretion is “ ‘not a capricious or arbitrary discretion, but
an impartial discretion, guided and controlled in its exercise by fixed legal
principles. . . . to be exercised in conformity with the spirit of the law, and in
a manner to subserve and not to impede or defeat the ends of substantial
justice.’ [Citations.]” (In re Robert L. (1993) 21 Cal.App.4th 1057, 1066.)
Exercises of discretion must be “ ‘grounded in reasoned judgment and guided
7
by legal principles and policies appropriate to the particular matter at issue.’
[Citations.]” (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 15.) Thus, although the
abuse of discretion standard is deferential, “it is not empty.” (People v.
Williams (1998) 17 Cal.4th 148, 162.) The standard “asks in substance
whether the ruling in question ‘falls outside the bounds of reason’ under the
applicable law and the relevant facts. [Citations.]” (Ibid.)
Mother contends that her recent progress, as evidenced by her success
in remaining out of custody, maintaining her sobriety, participating in
services, caring for her infant son, and accepting responsibility, constituted a
change in circumstances warranting reconsideration of M.S.’s placement.
The Agency does not dispute that Mother made some progress after
reunification services were terminated. However, as the juvenile court found,
Mother’s recent progress was a “roller coaster” and mirrored her earlier
periods of stability that regressed as Mother gained independence. Mother
bore the burden of showing “changed, not changing, circumstances.” (Mickel
O., supra, 197 Cal.App.4th at p. 615.) She did not meet this burden.
Mother was able to maintain her sobriety while incarcerated and while
participating in inpatient and outpatient programs. However, beginning in
October 2020, Mother began to struggle. Mother stated she was unable to
visit M.S. in person due to illness, but also did not take advantage of the
social worker’s repeated offers to facilitate video visits. Mother also claimed
she was unable to complete drug tests due to her illness, which prevented the
Agency from determining whether Mother was maintaining her sobriety
despite reports that Mother was drinking. In November 2020, Mother had to
change her housing. Thereafter, Mother ceased all communications with the
Agency for a significant period of time in December 2020 and January 2021.
When questioned about her living situation, Mother often provided
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inconsistent information. Mother’s sobriety sponsor told the Agency that she
stopped working with Mother “because she cannot sponsor a person [who]
hides things from her and lies to her.” From October 2020 until late January
2021, Mother did not complete any drug tests.
Beginning in late January 2021, Mother began another period where
her whereabouts were unknown and she had no contact with the Agency,
M.S.’s caregiver, or her probation officer. In February 2021, a warrant was
issued for the arrest of Mother for not complying with the conditions of her
probation. During this same time, the Agency received reports that Mother
was using drugs again. The Agency learned that Mother had moved again
and could not locate her.
In March 2021, Mother contacted the Agency to state that she was
moving into a sober living facility. Mother then began to maintain contact
with the Agency and regular visits. This participation in a new program
appeared to mark another change in Mother’s progress, but was consistent
with her prior pattern of stability followed by lapses. Given Mother’s past
difficulties, the juvenile court could reasonably conclude that Mother’s
circumstances were, at best, changing.
Although other evidence in the record and Mother’s testimony show
some progress, the juvenile court did not abuse its discretion on relying on
different evidence to find Mother’s instability demonstrated that her
circumstances had not changed. For this reason, the court could also
reasonably conclude that it was not in M.S.’s best interests to be placed with
Mother. Although M.S.’s placement had recently changed, it was still more
stable than Mother’s circumstances. Accordingly, the court’s denial of
Mother’s section 388 petition did not constitute an abuse of discretion.
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DISPOSITION
The order is affirmed.
O'ROURKE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
DATO, J.
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