In re K.S. CA2/8 ( 2024 )

Filed 10/22/24 In re K.S. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re K.S., a Person Coming B334934
Under the Juvenile Court Law.
(Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 21LJJP00332A)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
MATTHEW S. et al.,
Defendants and Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, Jennifer W. Baronoff, Juvenile Court Referee. Affirmed.
Brian Bitker, under appointment by the Court of Appeal,
for Defendant and Appellant Matthew S.
William Hook, under appointment by the Court of Appeal,
for Defendant and Appellant J.G.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Sally Son, Deputy County
Counsel for Plaintiff and Respondent.
_______________________
Matthew S. (Father) and J.G. (Mother), the parents of K.S.,
appeal from the juvenile court’s orders denying Mother’s Welfare
and Institutions Code1 section 388 petition and terminating their
parental rights pursuant to section 366.26. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Events Leading up to Juvenile Court Jurisdiction
K.S. came to the attention of child welfare agencies in San
Diego County four times in 2018 and 2019 due to allegations of
her parents’ substance abuse, inability to care for her, and
domestic violence. Except for one report of domestic violence that
was referred to the District Attorney, each referral was closed as
inconclusive when social workers could not locate the family or
were denied entry into the home.
In June 2021, a camping ground attendant reported finding
then seven-year-old K.S. alone, scared and crying. Law
enforcement officers called to perform a child welfare check found
K.S. next to her passed-out mother on the bed of a recreational
vehicle (RV). The RV smelled of smoke, urine, and dog feces.
Drug paraphernalia with visible residue was in the kitchen.
There was no edible food in the RV, and K.S. reported her
stomach hurt from hunger.
Mother awakened when the officers shook the bed. She
appeared to be under the influence of a controlled substance and
later admitted using heroin that day. Mother said she and
Father used drugs daily: she used methamphetamine, heroin,
and marijuana, while Father used methamphetamine and
1 All statutory references are to the Welfare and Institutions
Code.
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possibly heroin. K.S. observed her parents smoke unknown
substances daily and described their drug use practices in detail.
Mother reported domestic violence by Father. K.S. said her
parents did not get along and fought over food and drugs; she had
seen Father kick Mother. K.S. said she felt safe with Mother but
feared Father. He came and went as he pleased, and he did not
buy food. Father did not permit K.S. to attend school; she was
teaching herself to read but could not write.
Father denied living with Mother and K.S. He denied
engaging in domestic violence, accused Mother of physical abuse,
and said she was mentally ill. He denied knowing Mother was
currently using drugs and denied ever using drugs, although he
later said he had used cocaine and methamphetamine but was
not an addict.
Mother was arrested for child endangerment and drug
offenses, and later pleaded guilty to misdemeanor child
endangerment (Pen. Code, § 273a, subd. (b)). K.S. was detained
from her parents and placed with caregiver A.H. On June 24,
2021, the Department of Children and Family Services (DCFS)
filed a petition alleging K.S. was subject to the jurisdiction of the
juvenile court pursuant to section 300, subdivisions (a) and (b)(1),
due to domestic violence, parental incapacity due to drug use, and
hazardous conditions in the home.
At the jurisdictional and dispositional hearing in
September 2021, the court found true as amended all allegations
under section 300, subdivision (b)(1). The court declared K.S. a
dependent child, removed her from her parents’ custody, and
ordered her suitably placed. The court ordered reunification
services for both parents, including a domestic violence program,
parenting education, individual and conjoint counseling, and
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drug testing, with a full rehabilitation program, aftercare, and
12-step program required in the event of a positive test.
II. First Reunification Period
K.S. positively adjusted to living in the home with A.H.,
and she was comfortable sharing her feelings with A.H. K.S.’s
therapist noted A.H. was “a great support” for K.S. and provided
useful information to assist in therapy. A.H. was attending to
K.S.’s medical, dental, educational, and emotional needs: she had
received well-child exams and dental exams, attended school
daily, and had therapy weekly. K.S. was reported to be “very
happy, open in her conversation, and cooperative with services.”
K.S. told the social worker that she wanted to be adopted, but
then said she did not want to be adopted, she wanted to remain
with A.H. “ ‘just for forever.’ ” A.H. expressed interest in
adopting K.S. or becoming her legal guardian.
As of October 2021, although K.S. wanted to visit her
parents, there were no in-person visits because neither parent
had maintained contact with DCFS or committed to a visitation
schedule. The parents’ phone calls were inconsistent, and they
went weeks at a time without speaking with K.S.
In March 2022, DCFS described the parents’ contact with
K.S. as “minimal,” and Mother said she had not spoken with K.S.
in three months. Once in-person visits began, Mother failed to
appear for a visit with K.S. on April 19, 2022. She was late for
her April 23, 2022 visit and then spent 25 minutes in the
restroom.
In May 2022, DCFS informed the court that K.S.’s behavior
had changed since she resumed visits with her parents. K.S., the
social worker wrote, “appears unhappy, and not her usual bubbly
self, and she appears overly forgetful and at times disrespectful
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with the caregiver. The caregiver reports she doesn’t want to
engage in therapy unless[] the caregiver is present, and K[.S.]
has been ignoring the teacher at school when asked to read or
complete assignments.”
During this reunification period, DCFS reached out to both
parents regularly by email, text, and phone, but they rarely
responded; and when they did, they made excuses or blamed
others, ignored information that had been provided to them,
failed to provide requested information, and regularly failed to
follow through with things they agreed to do. Although both
parents stated an intent to participate in services, neither
complied with the case plan. Mother told DCFS she was unable
to participate in programs “due to being confined to her home and
another individual not allowing her to have contact with the
Department or Court.” In early March 2022, DCFS reported,
“Throughout the life of the case, [M]other had made numerous
claims that she was on a waitlist for a treatment program in
North Hollywood. In February 2022, [M]other reported being
enrolled in treatment at CRI-Help in North Hollywood,” but on
February 28, 2022, she reported no longer being in treatment
there. DCFS received no response from the program about
Mother’s enrollment or any services she received.
On March 17, 2022, Mother told DCFS she had gone to
rehabilitation and wanted drug testing information. The social
worker asked Mother for documentation of her treatment. On
April 11, 2022, Mother reported she went to the CRI-Help Detox
Program but never received any paperwork. On May 9, 2022,
Mother told DCFS she was trying to get into rehabilitation.
Mother failed to appear for drug testing on April 22, 2022, May
16, 2022, and May 31, 2022.
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In May 2022, Mother advised DCFS of her enrollment in a
parenting class and submitted a confirming letter from the
provider. DCFS later learned from the program provider that
Mother had been disenrolled because she had not attended any
classes. Mother’s enrollment letter had been sent in error, and
she had been instructed to disregard the enrollment letter.
At the section 366.21, subdivision (e) review hearing on
June 3, 2022, the court found the parents not in compliance with
their case plans but continued reunification services over DCFS’s
objection.
III. Second Reunification Period
DCFS advised the court in August 2022 that K.S. was
“bright, happy, [and] caring.” She was well cared for in A.H.’s
home. K.S. could “articulate her needs, wants, as well as her
disappointments, and appear[ed] to be very mature in thought at
such a young age.” However, she tended to “shut[] down or
respond[] rudely when she d[id]n’t want to talk, clean her room,
and when she remember[ed] things when she resided with her
parents.” As K.S. had done whatever she wanted when she lived
with her parents, sometimes she had difficulty with the rules in
A.H.’s home, like keeping her room clean and her clothes off the
floor.
A.H. and K.S. appeared to DCFS to have a close bond, and
A.H. described K.S. as “a joy” to have. In August 2022 K.S. told
the social worker she liked living with A.H. and wanted to stay
with her until she returned to her parents. When told returning
to her parents might be a problem because they had not taken
the classes they were asked to take, K.S. said, “ ‘They need to get
it together.’ ”
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Mother and Father confirmed visits, but often arrived late,
canceled at the last minute, or simply did not show up. K.S. was
disappointed, but she made “excuses for the parents not showing
up or arriving late, not understanding that it is her parent[s’]
responsibility as adults to show up at their visits timely, and
attend the visits.” At two visits, Mother made K.S. cry by telling
K.S. she would not see her if Mother went to rehabilitation.
DCFS wrote, “The conversations she had with K[.S.] were not
something a 9 year old should be responsible for hearing.”
Mother and Father did not comply with the case plan.
Mother failed to appear for drug testing on June 17 and 27, 2022,
July 7 and 18, 2022, and August 10, 2022. In August 2022,
Mother was observed to have scabs on her skin, she spoke
quickly, and she acted jittery, leading the social worker to note it
was “apparent that she does have a substance abuse issue.”
At the section 366.21, subdivision (f) review hearing on
October 17, 2022, the court terminated the parents’ reunification
services and set a section 366.26 permanency planning hearing.
IV. After the Termination of Reunification Services
In January 2023, K.S. and A.H. were reported to be well
bonded. A.H. loved K.S. and was committed to adopting her.
K.S. said she was happy and wanted to stay with A.H. forever.
When the different permanency plan options were explained to
K.S., she said she wanted A.H. to be her mom. K.S. seemed to
find comfort in hugging A.H. during the discussion about
permanency. A.H. not only met K.S.’s medical, dental, emotional,
educational, and mental health needs, she took “initiative in
always searching for extra resources to help” K.S.
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Between October 18, 2022 and February 14, 2023, neither
parent visited with K.S., drug tested for DCFS, or contacted
DCFS. Once K.S. stopped seeing her parents she stopped being
rude, disrespectful, and unwilling to complete tasks.
On February 17, 2023, Mother had a monitored telephone
call with K.S. K.S. was surprised to hear from Mother. For a few
months, Mother and Father visited with K.S. with some
regularity. Mother behaved appropriately at visits between late
February and April 2023, and K.S. was happy to see her. DCFS
described the visits as “of high quality based on the parents
following rules on a consistent basis and interacting with the
minor in a positive manner.”
However, on March 3, 2023, K.S. had a fight at school, and
she, the social worker and a school administrator spoke to the
parents. While Mother did attempt to address K.S.’s behavior,
she giggled through the entire conversation, spoke rapidly, and
told K.S. she “ ‘can’t be acting like a little bitch.’ ” Mother also
did not remember that she had an upcoming visit with K.S.
When the call ended, the social worker noticed K.S. appeared
about to cry and asked if this was because of the fight. K.S. said
she was not upset because of the fight, but stopped short when
she started to explain what had upset her. A.H. told the social
worker that now that K.S. was seeing and speaking with her
parents again, her behavior had worsened. A.H. said that the
visits confused K.S. and made her think she was going to return
to her parents.
Mother canceled one visit in April 2023 and was
incarcerated in May 2023. K.S. was sometimes angry and acted
out after parental visits or when her parents failed to contact her
for extended periods of time.
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Matters deteriorated in June 2023. Mother had to be
instructed not to discuss case issues with K.S. during a June 2,
2023 call. Mother and Father were in an altercation during
Mother’s June 10, 2023 call: “Mother stated that she had to get
away and sounded like she was running or walking fast,” and
Father yelled at Mother during the call. The social worker had to
redirect mother from discussing case issues with K.S. After the
call K.S. cried, and A.H. told DCFS K.S.’s parents were causing
her emotional turmoil.
Both parents were scheduled for a June 14, 2023 visit, but
only Father appeared. Neither parent showed up for the June 20
and June 29, 2023 visits. On June 20, K.S. became distraught
and extremely agitated that her parents did not show up. On
June 29, K.S. “was not surprised that her parents did not come to
the visit, but she was upset.” K.S. worried because Mother had
not been visiting or responding to texts or calls.
In the first six months of 2023, Mother visited K.S. eight
times. In July 2023, DCFS reported, “The recent visits have been
emotionally difficult for K[.S.]. Her caregiver reports that she is
often angry after the visits or phone calls, and that she has ‘an
attitude.’ K[.S.] becomes emotional and moody when her parents
do not show up for the visits, which is a regular occurrence.” K.S.
wanted in-person visits with her parents, but she often expressed
doubt that they would appear. She was very distressed by
telephone calls with her parents and no longer wanted to speak
with them over the telephone.
Mother visited K.S. two or three times during the week
before a July 2023 court date, and then did not visit her again
until October 2023. K.S. stopped asking about visiting her
parents, did not say she missed them, and declined a visit from
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her parents on her birthday. During the parents’ October 3, 2023
visit, K.S. twice said she was bored, and once said she wanted to
go home, meaning A.H.’s home. Mother visited K.S. twice more
in October 2023. DCFS advised the court in late October 2023
that during visits, “there does not appear to be much of a strong
attachment, bond, engagement, [or] interaction[,] and K[.S] is
oftentimes ready to go early.”
On November 15, 2023, Mother told DCFS she would be
unable to visit K.S. because she was checking into a treatment
program. The following day, Mother told K.S. over the phone
that she was going to get help, so she would not see K.S. for a
while. Mother had a video visit with K.S. on November 30, 2023.
She enrolled in an inpatient treatment program on December 12,
2023.
V. Section 388 Petition and Termination of Parental Rights
The permanency planning hearing was scheduled for
December 21, 2023. On that date, although the remainder of the
hearing was continued, the court elected to have K.S. testify
because she was present in court.
K.S. testified she could not recall the last time she visited
with Mother, it was “such a long time ago.” K.S. liked parental
visits, and she felt sad when they did not show up for visits, both
because she looked forward to seeing them and because she
would not have to do homework. What she missed about Mother
was laughing with her. She laughed differently with her parents
than with other people. K.S. loved Mother and thought about her
at night, but she also thought about Father and “a lot of stuff.”
K.S. testified that for her 10th birthday, in October 2023,
she celebrated by bringing cookies to her classmates, and then
she and A.H. ate and drove around town in search of a “Barbie
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shake.” When they learned the Barbie shake was not real, they
went home and watched the Barbie movie together. K.S. did not
see her parents on her birthday. When asked how she would like
to spend her 11th birthday, K.S. said she would want to spend it
the same way as her 10th. Ahead a few years, K.S. testified she
wanted to celebrate her 16th birthday by going to a professional
football game with A.H.
K.S. testified that when she had a good day at school, she
told her daycare providers and A.H. about it; and when she had a
bad day, she discussed it with A.H. and her therapist. K.S. loved
A.H. and did not want to leave her. In a perfect world, she would
like to have both her parents and A.H. in her life. K.S. refused to
answer whether she wanted to be adopted, explaining she “d[id
not] want to say it” because she did not want to hurt Father’s
feelings.
On January 29, 2024, Mother filed a section 388 petition
requesting that K.S. be returned to her custody, or, in the
alternative, reinstatement of reunification services, due to the
changed circumstance that she had begun an inpatient treatment
program. Mother asserted this change would be in K.S.’s best
interest because K.S. loved her mother and they were bonded,
and she could be in Mother’s care while maintaining a
relationship with A.H.
At the combined section 388 and permanency planning
hearing on February 2, 2024, Mother presented a letter from her
substance abuse treatment program stating that she had enrolled
in the program on December 12, 2023. She was still in the
orientation phase of the program and was reported to “struggle
with following [the] program guidelines.” Mother was actively
participating in her program, attending multiple groups, seeing a
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therapist weekly, and attending 12-step activities. According to
her counselor, Mother was “working to remain in consistent
contact with her Narcotics Anonymous Sponsor.” It was expected
she would advance to the next phase of the program on February
4, 2024, and also that she “will begin working towards the
completion of Step 1 of the 12 Steps.” Mother also submitted
documentation that she attended various 12-step program
activities and results from three drug tests indicating that she
had tested positive for multiple substances at her time of
enrollment but had since tested negative twice; and she had
tested negative for alcohol all three times.
Mother testified at the hearing that her treatment program
had changed her life. She said, “I have learned how serious the
disease of addiction can be and how traumatizing it can be for—
for myself as well as for my daughter. I’ve learned lots of ways to
cope with, you know, dealing with stressors or triggers or
anything that could, you know, have an effect on me possibly
relapsing. I have learned a lot through parenting. I have
actually started reading a lot of parenting books as well.” When
asked what those stressors or triggers were, she responded,
“[W]ell, obviously, people, places, and things, definitely, which
has been illuminated entirely since I’m now here; being in
unhealthy relationships with people from my past, just—you
know, just being in the wrong environments.” Mother testified
she previously did not believe in herself due to her poor decision-
making skills, lack of stability, guilt, shame, and people who
discouraged her. Now she believed in herself and had “amazing
support that tell me that I am actually worthy and that, you
know, I have a chance to be able to figure out what I'm doing and
get my daughter back.”
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Mother was “still on step one” of her 12-step program and
was about to receive a sponsor pass so she and her sponsor could
“thoroughly go through step one.” Mother’s drug of choice was
fentanyl, which she had last taken in November 2023. She also
used methamphetamine and marijuana, and last used
methamphetamine right before checking into her treatment
program in December 2023.
When asked what had prevented her from joining a
treatment program in the past, Mother said she “had joined a
few, honestly,” but she never followed through with them because
she “never really had anyone to encourage [her] to go and to
actually stay and follow through with it,” and because she lived
in a remote area and lacked transportation. When she was
“struggling in treatment centers,” Father “never really
encouraged [her] to stay,” and he did not provide transportation
for her. Mother had completed a detox program with CRI-Help;
she “tried to stay there and that . . . really didn’t work out.”
Although in her petition Mother had requested K.S. be
returned to her custody, at the hearing on the petition Mother
requested only reinstatement of reunification services. Mother’s
counsel argued that her entry into an inpatient treatment
constituted changed circumstances. DCFS and K.S.’s counsel
argued against Mother’s section 388 petition and urged the court
to terminate parental rights.
The court denied Mother’s section 388 petition. It
commended Mother for entering a substance abuse program, but
it did not find that to be a change in circumstances because
Mother had last used drugs in November and was still on step
one of her 12 step program. Even if the court were to consider
Mother’s start of a treatment program to be a change in
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circumstances, it did not believe reinstatement of reunification
services was in K.S.’s best interest. The court emphasized the
three-year length of the dependency case and K.S.’s entitlement
to permanency.
Proceeding to the permanency planning hearing, the court
rejected the parents’ argument that the beneficial parental
relationship exception to termination of parental rights applied.
The court questioned whether the parents’ visitation could be
considered consistent, and concluded that even if it were, neither
parent had established the type of bond with K.S. that would
outweigh the permanency and stability that came with adoption.
The court terminated parental rights. Both parents appeal.
DISCUSSION
Mother, joined by Father,2 argues the juvenile court abused
its discretion by denying her section 388 petition, and that this
error requires vacating the order terminating parental rights.
Section 388 provides for modification of juvenile court
orders when the moving party (1) presents new evidence or a
change of circumstance and (2) demonstrates modification of the
previous order is in the child’s best interest. (In re Jasmon O.
(1994) 8 Cal.4th 398, 415; In re Matthew M. (2023)
88 Cal.App.5th 1186, 1194.)
When, as here, a section 388 petition is filed after family
reunification services have been terminated, the juvenile court’s
overriding concern is the child’s best interest. (In re Stephanie M.
(1994) 7 Cal.4th 295, 317.) The parent’s interests in the care,
custody and companionship of the child are no longer paramount;
2 Father asserts no independent claims of error, simply
joining Mother’s arguments.
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and the focus shifts to the needs of the child for permanency and
stability. (Ibid.; In re Malick T. (2022) 73 Cal.App.5th 1109,
1123.) Nonetheless, a parent may rebut the presumption that
once family reunification services have been terminated,
reunification is not in the child’s best interest, by showing that
circumstances have changed and the best interest of the child
warrants further reunification services. (Stephanie M., at p. 317,
Malick T. at p. 1123.) “[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.)
We review the court’s decision to grant or deny a section
388 petition based on its best interest finding for abuse of
discretion and may disturb the exercise of that discretion only in
the rare case when the court has made an arbitrary or irrational
determination. (In re Matthew M., supra, 88 Cal.App.5th at
pp. 1194–1195.) We do not inquire whether substantial evidence
supports the order, nor do we reweigh the evidence and
substitute our judgment for that of the juvenile court. (Id. at
p. 1195.)
Assuming, without deciding, that Mother demonstrated a
change in circumstances, the juvenile court did not abuse its
discretion in determining reinstated reunification services would
not be in K.S.’s best interest. For two and one-half years after
she was removed from Mother and Father, K.S. had been in a
safe, caring, stable home with a caregiver who not only met her
physical, medical, educational, and emotional needs but also
provided outstanding support and made consistent, dedicated
efforts to help her. K.S. and A.H. were bonded: K.S. loved A.H.
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and looked to her for emotional support in good times and bad;
and it was with A.H., not her parents, that she wanted to spend
special days like her birthday. K.S. wanted to remain with A.H.
“forever” and asked A.H. to adopt her. K.S. loved her parents,
but when Mother and Father intermittently reappeared in her
life, the ensuing lack of certainty about her future confused K.S.
and caused her to suffer and to act out, demonstrating the
urgency of ending her long wait for permanency.
On the other hand, Mother had been in treatment for seven
weeks, was still in the orientation phase, was struggling to follow
the rules, and was on step one of the 12 steps. Given that she
had barely begun treatment for her serious substance abuse
problem, it was not irrational or arbitrary for the juvenile court
to conclude it would not serve K.S.’s interest in permanency and
stability to delay that permanency and upend her stability for the
speculative benefits offered by further reunification services.
Relying on her seven years of raising K.S. before K.S.’s
removal, the maintenance of their relationship through
visitation, the high quality of her visits, as well as K.S.’s love for
Mother, desire to see her, and pain when Mother stopped visiting,
Mother argues further reunification services would in fact
advance K.S.’s need for permanency and stability. This
breathtakingly rosy assessment of the record does not
demonstrate that the juvenile court exceeded the bounds of
reason (In re Stephanie M., supra, 7 Cal.4th at pp. 318–319)
when it determined that neither the last-minute change in
circumstances nor the possible eventual benefit offered by further
reunification services warranted the disruption of K.S.’s stability
and the postponement of permanency that reinstated services
would cause. When two or more inferences can reasonably be
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deduced from the facts, the reviewing court has no authority to
substitute its decision for that of the juvenile court. (Id. at
p. 319.) The court did not abuse its discretion by denying
Mother’s section 388 petition.
DISPOSITION
The orders denying Mother’s section 388 petition and
terminating parental rights are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
GRIMES, J.
VIRAMONTES, J.
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