In re H.S. CA5 ( 2023 )

Filed 5/1/23 In re H.S. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re H.S. et al., Persons Coming Under the
Juvenile Court Law.
STANISLAUS COUNTY COMMUNITY F085266
SERVICES AGENCY,
(Super. Ct. Nos. JVDP-21-000074,
Plaintiff and Respondent, JVDP-21-000075)
v.
OPINION
BRITTNEY S.,
Defendant and Appellant.
THE COURT *
APPEAL from orders of the Superior Court of Stanislaus County. Annette Rees,
Judge.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Boze, County Counsel, and Lindy Giacopuzzirotz, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P. J., Detjen, J. and Snauffer, J.
Appellant Brittney S. (mother) is the mother of now four-year-old, Hudson S. and
two-year-old H.M. (collectively “the children”), who are the subjects of a dependency
case. At a six-month review hearing in April 2022, the juvenile court terminated
mother’s family reunification services. In August 2022, mother filed a petition under
Welfare and Institutions Code section 3881 asking the juvenile court to order additional
family reunification services. The juvenile court denied mother’s petition at a
section 366.26 hearing on November 8, 2022, which resulted in mother’s parental rights
being terminated. On appeal, mother contends the juvenile court erred in denying the
petition. We find no abuse of discretion, and thus we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Initial Removal
In March 2021, the Stanislaus County Community Services Agency (agency)
received a referral alleging that mother tested positive for amphetamines at the time of
H.M.’s birth. Mother admitted to using methamphetamine in the 24 hours prior to her
arrival at the hospital. She did not receive prenatal care because she did not plan on
having H.M. After her birth, H.M. was admitted to the Neonatal Intensive Care Unit
(NICU) of the hospital due to her premature birth at 33 weeks of estimated gestation.
The following day, an emergency response social worker arrived at the hospital to
investigate the referral. The social worker was informed that mother minimized her
substance abuse and had two other children that were not in her care. Mother reported
that Hudson was living with a maternal aunt for the past six months, and the children’s
other sibling lived with the sibling’s father. Mother indicated the sibling’s father was
awarded full custody when she became homeless. She denied having a problem with
methamphetamine and claimed she only used once during her pregnancy with H.M.
1 All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
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because she was stressed out. H.M.’s father, Phil M. (Phil), was described as supportive,
and mother denied any violence in their relationship. Phil denied substance abuse and
explained that he and mother were in a relationship for almost a year. The social worker
offered mother voluntary services, but mother declined because she did not use
methamphetamine all of the time.
After speaking to the person caring for Hudson, the social worker discovered that
she was actually mother’s friend, who occasionally watched Hudson during the week.
Mother acknowledged that she lied in order to make it appear as though Hudson was not
in her care. She continued to minimize her addiction and did not take responsibility for
her actions. The agency determined that it would seek a warrant to take the children into
protective custody after a team decision meeting. Upon serving the warrant on mother,
the social worker observed bruises on mother’s face that appeared consistent with
someone squeezing her cheeks. Mother stated, “It’s best I do this alone,” when the social
worker asked her to provide copies of documents to Phil.
The agency filed an original petition alleging the children were described by
section 300, subdivisions (b)(1) and (g). The petition alleged the children were at
substantial risk of suffering serious physical harm as a result of mother’s substance abuse.
The petition further alleged that the whereabouts of the children’s fathers were unknown.
The agency’s detention report set forth mother’s child welfare history, which involved
three referrals that were evaluated out in 2016 and 2017. The referrals alleged that
mother was drinking alcohol excessively and had an alcohol problem. At the detention
hearing held on April 6, 2021, the juvenile court detained the children from mother,
ordered mother’s visitation with the children to be supervised for two hours per week,
and set a combined jurisdiction and disposition hearing for May 4, 2021.
Jurisdiction and Disposition
The agency’s jurisdiction and disposition report recommended that the allegations
in the original petition be found true, the children be removed from mother’s custody, and
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family reunification services be provided to mother and Phil. The children were placed
together in a foster home. Hudson was slowly adjusting to the placement, and the care
provider explained that he was “a handful.” He consistently cried and whined throughout
the day, and he whined to communicate because he lacked verbal skills. H.M. was
reportedly doing well and gaining weight in the home.
The report noted mother’s criminal history, which consisted of charges for spousal
battery, inflicting corporal injuries on a spouse, driving under the influence, and cruelty
to a child causing possible injury or death. The resulting disposition of most charges
were unknown, but mother was convicted for driving under the influence in May 2019
for an offense in August 2018. Mother declined to participate in a social history
interview with the social worker. Supervised visitation consisted of a combination of
virtual and in-person visits twice per week. A hair follicle drug test completed by mother
on April 12, 2021, revealed positive results for methamphetamine and ethyl glucuronide.
Mother was provided with referrals for a domestic violence assessment, individual
counseling, parenting, a substance use disorder assessment, and random drug testing. As
of May 18, 2021, mother had not contacted the providers to sign up for any of the
services.
After multiple continuances to address paternity issues, the combined jurisdiction
and disposition hearing was held on September 29, 2021. A first amended petition was
filed on September 27, 2021, which added allegations pursuant to section 300,
subdivision (b)(1) for both fathers and struck the allegations pursuant to section 300,
subdivision (g) for both fathers. Mother’s counsel submitted on the agency’s
recommendation. The juvenile court found the allegations of the amended petition true,
ordered the children removed from mother’s custody, and provided reunification services
to mother and Phil. Mother’s case plan consisted of a clinical assessment, individual
counseling, a parenting program, a substance use disorder assessment, and random drug
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testing. A progress review hearing was set for December 29, 2021, and the six-month
review hearing was set for March 23, 2022.
Family Reunification Period
At the progress review hearing held on December 29, 2021, mother was present
and admonished by the juvenile court regarding the consequences if she did not engage in
her court-ordered services. The agency’s six-month status review report, filed on
March 9, 2022, recommended that mother and Phil’s family reunification services be
terminated and a section 366.26 hearing be set for the children. In June 2021, the
children were placed with mother’s friend, who was approved as a nonrelative extended
family member. However, the children were removed from the home in January 2022
due to an incident of domestic violence in the home. The children were then placed in a
foster home together, and their care providers worked diligently to make the transition
smooth for the children.
Both children were found to be in good health with no medical concerns noted.
The regional center determined that Hudson met eligibility for services after conducting a
psychological evaluation. Services were delayed due to Hudson’s placement change, but
an initial meeting was held in February 2022. Hudson was attending a “Head Start”
program and receiving “WRAP” services to address his mental and emotional needs.
Mother appeared to be homeless and she made no efforts to engage in the services
required by her case plan. Out of approximately 80 scheduled visits, mother failed to
show for 26 visits and had 11 visits cancelled because she arrived late. Hudson began
having outbursts and tantrums both after visits and during missed visits due to mother’s
inconsistency. The social worker was able to maintain minimal contact with mother. In
her contacts with the social worker, mother expressed her belief that the children should
not have been removed, and she failed to provide drug tests to support her claim that she
was not using drugs. Educational and developmental services for the children were also
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being delayed because mother was not responding to calls from the children’s service
providers.
The six-month review hearing was set for a contested hearing at the request of
mother for April 12, 2022. The visitation supervisor noted that mother appeared to have
a baby bump during a March 9, 2022 visit. The following week, it was noted that
Hudson often ignored mother when she tried to redirect him, and she did not seem to be
an authoritative figure to him. The social worker made contact with Phil in April 2022,
and he explained that mother did not want him to speak to the agency. Phil and mother
continued their relationship until approximately April 7, 2022, despite mother’s reports to
the agency that they were no longer in a relationship and she did not know his
whereabouts. He admitted to using “crystal” two days earlier, and he reported mother
was also using “crystal.”
Mother failed to appear for the contested six-month review hearing held on
April 12, 2022. Her attorney indicated mother understood that she failed to make the
necessary progress, and she intended to enter a residential program to support the filing
of a section 388 petition in the future. The juvenile court adopted the agency’s
recommendation and terminated family reunification services to mother and Phil. A
section 366.26 hearing was scheduled for August 3, 2022.
Selection and Implementation Hearing
The section 366.26 report, filed by the agency on July 14, 2022, recommended
that the juvenile court terminate the parental rights of mother and the children’s fathers
and a plan of adoption be ordered. The children remained placed in the same foster home
since January 11, 2022, and the care providers desired to adopt the children. The care
providers had developed a strong bond with the children and looked forward to meeting
the children’s needs as adoptive parents.
The children were in good health with no medical issues noted at their recent
physicals. Hudson received services through the regional center twice per month and
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“WRAP” services on a weekly basis with a focus on behavioral redirecting, appropriately
expressing emotions, and safe boundaries. Hudson was making “excellent” progress in
his services, and he was set to decrease sessions to every other week in the following
month.
The report noted that mother failed to regularly or consistently visit the children,
and she missed more visits than she attended since the children’s removal in April 2021.
Mother only attended three visits since her reunification services were terminated, and
she struggled with redirecting Hudson’s behaviors. Mother had minimal interaction with
both children and Hudson appeared distracted during the visits. A contested
section 366.26 hearing was set at the request of mother, but the hearing was continued to
September 21, 2022, due to her recent claim that her adoptive grandfather might have
Indian ancestry.
On August 31, 2022, mother filed a section 388 petition requesting additional
reunification services based upon her entering a substance abuse program on June 7,
2022, engaging in “first step,” and testing negative for all substances. The children’s best
interests were alleged to be served because she was “working [diligently]” to address her
substance abuse issues and they would have a relationship with their newborn sibling.
Letters attached to the petition indicated mother provided clean tests weekly during her
57-day stay at the program.
The juvenile court set the section 388 petition for a hearing on the same date as the
contested section 366.26 hearing. Both hearings were continued to November 8, 2022, to
allow additional time for responses from Indian tribes based upon mother’s recent claim
of Indian ancestry. The agency filed a report in response to mother’s section 388
petition, which recommended that mother’s petition be denied. The social worker
received information that mother entered her substance abuse program’s sober living and
outpatient treatment in August 2022. The social worker noted that offering additional
services would not be in the children’s best interests given the expiration of the
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18-month statutory limit and her failure to make any progress during her reunification
period.
On November 8, 2022, the juvenile court held a contested hearing on mother’s
section 388 petition and the section 366.26 hearing. Mother was present and testified that
she had 167 days of sobriety from methamphetamine and alcohol. She testified that she
was “very, very bonded” with the children, and she insisted that “[e]verything would be
different” if she was provided additional services for the children. Mother was
participating in parenting classes, and she was able to have the children placed with her in
the substance abuse program. Her visits with the children were scheduled once per
month, and she had a hard time demonstrating her ability to redirect the children in the
limited time.
Mother’s counsel called the supervising social worker to testify regarding
situations where mother redirected the children during visits. He acknowledged
examples from recent visitation reports where mother either redirected the children or had
to be admonished to watch H.M. more carefully.
In closing argument, mother’s counsel argued that an opportunity for the children
to reunite with mother through six more months of services would be in the children’s
best interests. Her counsel then clarified that she was not requesting that the children be
returned to her care. Counsel for the children and agency argued that mother’s petition
should be denied due to a lack of changed circumstances.
After hearing argument from all counsel, the juvenile court proceeded to its ruling
on the section 388 petition. The court commended mother on her 167 days of sobriety,
but it concluded by stating,
“I don’t find that there are truly changed circumstances in a timely fashion
as to [the children]. And even if it is truly a change of circumstances, it is not in
their best interest given their age and their need for permanency and stability in
their lives moving forward. [¶] Children can’t wait for their parent to successfully
recover for no end in time. [Mother] did have a positive test in May of 2022. That
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was a year out. That is very troubling. I understand [she is] addressing it now,
and I am very glad to hear that; however, I do not find that it is in the best interest
of these children, and I am denying the [section] 388 request for reunification
services.”
Mother then provided testimony in opposition to the agency’s recommendation to
terminate parental rights. Counsel presented argument at the section 366.26 hearing, and
the juvenile court followed the agency’s recommendation to terminate the parental rights
of mother and the children’s fathers and select a plan of adoption for the children.
DISCUSSION
Mother contends the juvenile court erred when it failed to grant her section 388
petition requesting additional reunification services. She argues that her petition and
supporting documentation showed a change in her circumstances and her request was in
the children’s best interests.
A. Legal Principles
A petition to modify a juvenile court order under section 388 must allege facts
showing new evidence or changed circumstances exist and changing the order will serve
the child’s best interests. (§ 388, subd. (a); In re Nolan W. (2009) 45 Cal.4th 1217,
1235.) The petitioner has the burden of proof by a preponderance of the evidence. (Cal.
Rules of Court, rule 5.570(h)(1)(D).) In assessing the petition, the juvenile court may
consider the entire history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181,
189.)
Section 388 serves as 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.” (In re Kimberly F. (1997)
56 Cal.App.4th 519, 528.) (Kimberly F.) “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.’ ” (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
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“Not every change in circumstance can justify modification of a prior order.
[Citation.] The change in circumstances must relate to the purpose of the order and be
such that the modification of the prior order is appropriate. [Citations.] In other words,
the problem that initially brought the child within the dependency system must be
removed or ameliorated. [Citations.] The change in circumstances or new evidence must
be of such significant nature that it requires a setting aside or modification of the
challenged order.” (In re A.A. (2012) 203 Cal.App.4th 597, 612.) “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.” (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
In assessing the petition, the juvenile court may consider the entire history of the
case. (In re Justice P., supra, 123 Cal.App.4th at p. 189.) When determining whether a
modification under section 388 would be in the best interests of the child, courts have
considered several factors, including but not limited to: “(1) the seriousness of the
problem which led to the dependency, and the reason for any continuation of that
problem; (2) the strength of relative bonds between the dependent children to both parent
and caretakers; and (3) the degree to which the problem may be easily removed or
ameliorated, and the degree to which it actually has been.” (Kimberly F., supra, 56
Cal.App.4th at p. 532.)
B. Standard of Review
We review the denial of a section 388 petition after an evidentiary hearing for
abuse of discretion. (In re Stephanie M., supra, 7 Cal.4th at p. 318.) “ ‘ “The appropriate
test for abuse of discretion is whether the trial court exceeded the bounds of reason.” ’ ”
(Id. at pp. 318–319.) “ ‘The denial of a section 388 motion rarely merits reversal as an
abuse of discretion.’ ” (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.) Where
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there is conflicting evidence, we reverse only if the evidence compels a finding for the
appellant as a matter of law. (In re I.W. (2009) 180 Cal.App.4th 1517, 1527–1529.)
C. Analysis
In the present case, the juvenile court determined that mother did not prove the
existence of a change in circumstance or the children’s best interests were served by
granting her request. Mother provided evidence that she was participating in substance
abuse treatment, drug testing, and a parenting program in the five months prior to the
section 366.26 hearing. These facts were understood and acknowledged by the court.
However, it is irrelevant that there may be evidence which would support a conclusion
contrary to that of the juvenile court. (In re K.B. (2009) 173 Cal.App.4th 1275, 1292.)
The court denied mother’s section 388 petition because it did not find that mother’s
circumstances were “truly changed” or that additional services were in the children’s best
interests, given their ages and need for permanency. Thus, the court properly focused on
the children’s permanency and stability when it considered mother’s request to delay the
children’s proposed permanent plans.
Mother’s argument that her bond with the children and participation in substance
abuse treatment required resumption of reunification efforts ignores the legally required
shift in focus once her reunification services were terminated. Mother’s section 388
petition contemplated further delay in permanency for children who had remained in
out-of-home care for more than 18 months. Although mother had begun making progress
by participating in substance abuse treatment and a parenting class, the circumstances
before the juvenile court showed that mother was still in the early stages of addressing
her substance abuse problem. Mother’s issues with abusing substances dated back to at
least August 2018, based upon her driving under the influence conviction.
We acknowledge that mother’s continued progress in treating her substance abuse
problem indicates that her circumstances are changing, and mother’s continued efforts are
to be commended. However, mother must demonstrate “changed, not changing,
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circumstances.” (In re Mickel O. (2011) 197 Cal.App.4th 586, 615.) Thus, it was
reasonable for the juvenile court to conclude mother’s recent efforts in the months prior
to the termination hearing evidenced “changing” rather than “changed” circumstances,
particularly in light of her failure to make any efforts until 14 months had elapsed
following the children’s removal. (See In re Cliffton B. (2000) 81 Cal.App.4th 415, 423–
424 [200 days of sobriety not enough to demonstrate changed circumstances given the
parent’s history]; Kimberly F., supra, 56 Cal.App.4th at p. 531, fn. 9 [“It is the nature of
addiction that one must be ‘clean’ for a much longer period than 120 days to show real
reform.”].)
Because mother did not make a sufficient showing that her circumstances had
changed in the six months following the review hearing, the juvenile court properly
denied her section 388 petition. By mother’s own admission, she was still “working
[diligently] to address her[ ]substance abuse issues.” Mother had not yet demonstrated
that she could maintain her sobriety while parenting the children outside of a controlled
environment. In the context of an 18-month dependency period for the children,
mother’s belated efforts to maintain a bond and participate in programs demonstrated
changing, but not changed, circumstances.
The children were placed with care providers who were committed to a plan of
adoption for the 10 months preceding the hearing. Their placement with mother’s friend
had been previously disrupted, and mother’s inconsistency with visitation had a
detrimental effect on Hudson’s emotional stability. Considering the very young
children’s heightened need for permanency and stability, and the inability of mother to
consistently demonstrate her commitment to sobriety throughout the proceedings, the
juvenile court’s decision to forego additional reunification efforts was not arbitrary or
beyond the bounds of reason. Accordingly, we find the juvenile court did not abuse its
discretion in denying the section 388 petition.
12.
DISPOSITION
The juvenile court’s orders are affirmed.
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