D.A. v. Superior Court CA1/3

Filed 1/26/22 D.A. v. Superior Court CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 THREE
D.A.,
Petitioner,
v.
THE SUPERIOR COURT OF A164031
CONTRA COSTA COUNTY,
(Contra Costa County
Respondent;
Super. Ct. Nos. J18-00718,
CONTRA COSTA COUNTY J18-00719)
CHILDREN AND FAMILY
SERVICES BUREAU,
Real Party in Interest.
D.A. (Mother) petitions for extraordinary writ relief after the juvenile
court denied her petition for modification under Welfare and Institutions
Code section 388 seeking reinstatement of reunification services or placement
of her children S.A. and C.A. with her under a plan of family maintenance.1
We conclude the juvenile court did not abuse its discretion, and accordingly,
we deny the petition.
1 Further statutory references are to the Welfare and Institutions Code
unless stated otherwise.
FACTUAL AND PROCEDURAL BACKGROUND
S.A. and C.A. were the subjects of separate prior child welfare
proceedings brought in July 2012 by the Contra Costa County Children and
Family Services Bureau (the Bureau) after C.A. tested positive for
methamphetamine at birth, and Mother tested positive for
methamphetamine and ecstasy. The petitions alleged under section 300,
subdivision (b), that S.A. and C.A. were at substantial risk of suffering
serious physical harm or illness as a result of Mother’s inability to care for
them due to her substance abuse.2 The juvenile court sustained the petitions’
allegations, and Mother entered a residential drug treatment program in
October 2012. In August 2013, the juvenile court vacated the dependency.
In July 2018, the Bureau filed petitions under section 300, subdivision
(b)(1), this time alleging that S.A. (seven years old) and C.A. (six years old)
were at substantial risk of serious physical harm or illness because Mother
had engaged in domestic violence with her boyfriend in the children’s
presence and had a history of domestic violence with the children’s father.
The petitions further alleged that Mother had a substance abuse problem
with methamphetamine, as well as a history of mental illness. The children
were detained. At the August 2018 jurisdiction hearing, Mother pled no
contest to an amended petition that revised the domestic violence allegation
to a general allegation, deleted the mental health allegation, and left the
substance abuse allegation unchanged. The juvenile court sustained the
allegations.
According to the Bureau’s disposition report, Mother admitted “she
began using both methamphetamine and marijuana at thirteen years old”
2 The petition for S.A. additionally alleged abuse of a sibling (C.A.) under
section 300, subdivision (j).
2
and “used both substances daily.” To address her addiction, Mother “has
moved out of the state (which has helped her the most), attended meetings
and entered drug programs.”
At the September 2018 disposition hearing, the juvenile court ordered
the children placed out of Mother’s home with reunification services. Mother
was ordered to complete a case plan that included individual counseling,
domestic violence counseling, parenting classes, a 12-step program, an
inpatient substance abuse program, and drug testing.
In March 2019, the Bureau reported that Mother entered a residential
drug treatment program in October 2018 and obtained her certificate of
completion in January 2019. Mother had 12 drug tests during the review
period, three of which were positive for marijuana, and one for
methamphetamine in January 2019. The Bureau further reported that
Mother had not maintained contact, and that her case plan compliance was
unknown. At the six-month review hearing, the juvenile court continued
reunification services for Mother.
In August 2019, the Bureau reported that Mother failed to show up for
three drug tests, refused services through a sober living environment, and
had not engaged in counseling or psychiatric treatment. The juvenile court
again continued reunification services for Mother.
In November 2019, the Bureau reported that Mother was homeless and
had moved out of the county to obtain housing. Mother cancelled several
visits during the reporting period. She submitted multiple negative results
for drug testing and told the Bureau that she was participating in a
substance abuse program at Pittsburg Health Clinic, but the Bureau was
awaiting confirmation from the provider.
3
In February 2020, the Bureau recommended termination of services
and the setting of a section 366.26 hearing to terminate Mother’s parental
rights. The Bureau reported that Mother remained homeless and continued
to change jobs, seek housing, and participate in supervised visits and
substance abuse services, including Contra Costa County Medical Health’s
“mock intensive outpatient substance abuse treatment program.” However,
Mother failed to show up for several drug testing appointments and canceled
several supervised visits with the children. At the contested 18-month
review hearing in March 2020, Mother failed to attend, and the juvenile court
terminated reunification services and set a section 366.26 hearing.
The initial section 366.26 hearing resulted in a permanent plan of
foster care with a goal of placement with a fit and willing relative. In March
2021, the children were placed with their maternal uncle, and the Bureau
reported that the children “developed a positive relationship with [maternal
uncle] and his girlfriend[.]” Although Mother continued to participate in
supervised visitation with S.A. and C.A., “the [children] have displayed little
interest in visiting with the mother. Additionally, [maternal uncle] reports
that after the girls’ visit with the mother, [S.A.] and [C.A.] appear to give the
matter no real importance and have very little share [sic] about the visit.”
The children were observed “to be comfortable in the presence of their uncle
and have expressed their wishes to remain in his care. [Maternal uncle] is
prepared to provide the girls a permanent home and wants to move forward
with adoption [sic] he is willing to meet the challenges presented with
additional support.” In August 2021, the Bureau recommended setting
another section 366.26 hearing with a permanent plan of adoption by the
maternal uncle. A contested post-permanent plan review hearing was set for
October 19, 2021.
4
Mother then filed a section 388 petition seeking reinstatement of
reunification services or placement of the children with her under a plan of
family maintenance. Mother contended that she had “been engaging in
substance abuse counseling services and drug testing, seeing a therapist
weekly since March of 2021, is employed and is patiently waiting for housing
as she has been chosen to receive housing vouchers in both San Francisco and
Butte County. She has also consistently maintained her visits with [S.A.]
and her sister [C.A.]” The section 388 petition attached several reports of
drug tests from March to September 2021. The March report showed positive
results for methamphetamine, while other reports showed positive results for
benzodiazepine and/or cannabinoids.
On October 19, 2021, the juvenile court held a combined contested post-
permanent plan review and section 388 hearing. Mother testified she has
used methamphetamine “[m]ost of [her] life,” but claimed she stopped after
S.A. and C.A. were removed from her care. Mother further testified she had
been seeking substance abuse treatment for “over a year” and had
“graduated” from the program. She had also engaged in outpatient services
and was living in a homeless shelter that performed random drug testing.
She acknowledged, however, that “[t]hey haven’t drug tested me.”
On cross-examination, Mother was asked about the March 2021 drug
test showing positive results for amphetamines and methamphetamines. She
testified that the drug test was “for a three-month hair strand test” and that
she had been clean since January 5, 2021. Her counsel further explained to
the juvenile court that Mother was given benzodiazepine as an anxiety
medication while at psychiatric emergency services and was permitted to use
cannabis for medical reasons.
5
Mother further testified she was employed and was awaiting housing
vouchers. She had selected a house that was expected to be ready for her
soon. She had also completed a parenting class, attended therapy regularly
since March 2021, and received dialectical behavior training. She explained
that she was prompted to seek therapy in March 2021 due to the COVID-19
lockdown, which caused her to have two breakdowns in January and March
or April 2021. She was placed in involuntary hold under section 5150 both
times.
Mother acknowledged that after her supervised visits with S.A. and
C.A., the children did not express not wanting to leave. Mother was
questioned extensively about her ability to care for the children— specifically
with S.A.’s medical condition, encopresis. Mother was unaware of what a
typical day looked like for S.A. and blamed her lack of knowledge of how to
care for the children on the fact that they have not been in her care. Mother
acknowledged she had not remained in contact with the social worker after
reunification services were terminated but claimed the social worker failed to
respond to an e-mail and told Mother to contact her lawyer.
Asked why the requested modification was in the children’s best
interests, Mother replied, “Because I’m their mother. I mean, they’re my
reason for even being here. I’m supposed to be — I’m supposed to take care of
them myself. They need me. I need them.”
After the conclusion of Mother’s testimony, the juvenile court denied
the section 388 petition. The court found that Mother’s testimony regarding
drug use was not “credible,” as she denied using methamphetamine after the
children were removed in July 2018, but admitted during her testimony to
using methamphetamine as recently as January 2021. The court recounted
the long history of Mother’s involvement with the child welfare system, citing
6
a prior dependency case in Alabama in 2011–2012, the prior dependency case
after C.A. was born in July 2012, and the sustained allegations of domestic
violence that Mother committed in front of the children in the present matter.
The court noted Mother’s admission that she has been a “lifelong user of
methamphetamine up until relatively recently.”
The court found that despite Mother’s testimony that she had applied
for housing, “there’s presently no information as to when that housing will be
available for her to move in.” The court was also concerned about the two
section 5150 holds earlier in 2021 and expressed doubt that Mother’s
underlying mental health problems had been adequately addressed.
The court additionally found that Mother was not prepared to address
S.A.’s encopresis, and that Mother’s failure to be “kept in the loop” regarding
the daily care of the girls was “due to her failure to make substantial efforts
to stay in contact with the social worker or her counsel, for that matter,
adequately to know what has been going on with her daughters and to keep
apprised of their medical condition, their medical needs, and generally what
is required to take care of them.” While the court found that visits between
Mother and the children had generally gone well, the court noted that C.A.
and S.A. showed “little interest” in visiting with Mother and “that the visits
are not significant to the children.”
Based on the foregoing, the court concluded that Mother had failed to
show a material change in circumstances. The court was “mindful of the fact
that the 10 months in sobriety after a lifetime of addiction is a good
beginning, but it is a beginning. And as we all know, the scourge of addiction
is a very difficult road with many relapses typical. So I don’t think that
refraining from methamphetamine for 10 months, given the history in this
case, that that adequately protects the children.” The court also found the
7
requested modification was not in the children’s best interests because
Mother was not capable of caring for their medical needs or daily needs. The
court set a section 366.26 hearing for February 15, 2022.
Mother filed timely notices of intent to file a writ petition. In December
2021, Mother filed her petition for extraordinary relief and request for a
temporary stay of the February 15, 2022 hearing.
DISCUSSION
“Section 388 permits the parent of a dependent child to petition the
juvenile court for a hearing to modify an earlier order on the basis of changed
circumstances or new evidence. (§ 388, subd. (a)(1).) The petitioning party
bears the burden of showing that there is new evidence or changed
circumstances and that the proposed modification would be in the best
interests of the child.” (In re N.F. (2021) 68 Cal.App.5th 112, 120 (N.F.).)
Where, as here, the juvenile court holds an evidentiary hearing on the section
388 petition, the petitioning party must make the required showings by a
preponderance of the evidence. (In re Mickel O. (2011) 197 Cal.App.4th 586,
615 (Mickel O.).) In determining whether the petitioning party has carried
its burden, the court may consider the entire factual and procedural history
of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 189 (Justice P.).)
“Whether the juvenile court should modify a previously made order rests
within its discretion, and its determination may not be disturbed unless there
has been a clear abuse of discretion.” (In re J.C. (2014) 226 Cal.App.4th 503,
525.)
“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
8
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; see In re Ernesto R.
(2014) 230 Cal.App.4th 219, 223 [requiring “substantial change of
circumstances”]; Mickel O., supra, 197 Cal.App.4th at p. 615 [requiring
change in circumstances to be “ ‘significant’ ” in nature].)
“In the context of a substance abuse problem that has repeatedly
resisted treatment in the past, a showing of materially changed
circumstances requires more than a relatively brief period of sobriety or
participation in yet another program.” (N.F., supra, 68 Cal.App.5th at p. 121,
citing In re Cliffton B. (2000) 81 Cal.App.4th 415, 423 [seven months of
sobriety since last relapse insufficient to show changed circumstances, given
parent’s history]; In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9
(Kimberly F.) [“It is the nature of addiction that one must be ‘clean’ for a
much longer period than 120 days to show real reform”].) The appellate
courts of this state have often held that when a parent has a history of
substance abuse, recent relatively brief sobriety constitutes “changing” rather
than “changed” circumstances. (See In re Alayah J. (2017) 9 Cal.App.5th 469,
482; Mickel O., supra, 197 Cal.App.4th at p. 615.)
The juvenile court here properly found that Mother failed to
demonstrate changed circumstances to support modification of the order
terminating reunification services. Mother admitted to methamphetamine
use since the age of 13, and her methamphetamine abuse led to both the July
2012 dependency matter as well as the instant proceedings. In this context,
Mother had to show more than “a relatively brief period of sobriety or
participation in yet another program.” (N.F., supra, 68 Cal.App.5th at
9
p. 121.) Although Mother points out that she completed a residential drug
treatment program in January 2019, she acknowledges this was “not
technically a change of circumstances” but contends “it is important for the
court to consider the matter as a whole.” We agree the entire factual and
procedural history of the case must be considered (see Justice P., supra, 123
Cal.App.4th at p. 189), but Mother’s prior completion of residential treatment
merely serves to highlight her pattern of participating in services and later
relapsing. Indeed, Mother admitted to relapsing as recently as in January
2021. We do not intend to discount Mother’s progress to date in combatting
her addiction or suggest she will likely fail—her sobriety from January 2021
to the October 2021 hearing on the section 388 petition shows meaningful
promise. However, we cannot say the juvenile court abused its discretion in
concluding that this comparatively brief period of sobriety was indicative of
only changing—but not yet changed— circumstances.
We next address whether the juvenile court reasonably determined
that granting Mother reunification services or custody of S.A. and C.A. with
family maintenance services would not promote the children’s best interests.
After reunification services have been bypassed or terminated and the matter
set for a section 366.26 hearing, “ ‘the focus shifts to the needs of the child for
permanency and stability’ [citation], and in fact, there is a rebuttable
presumption that continued foster care is in the best interests of the child.”
(In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In Kimberly F., the appellate
court articulated three factors to consider in evaluating the child’s best
interests under section 388: (1) the seriousness of the problem that led to the
dependency and the reason for any continuation of that problem; (2) the
strength of the child’s bond with his or her new caretakers compared with the
strength of the child’s bond with the parent; and (3) the degree to which the
10
problem leading to the dependency may be easily removed or ameliorated,
and the degree to which it actually has been removed or ameliorated. (In re
Kimberly F., supra, 56 Cal.App.4th at pp. 531–532.)
Application of the Kimberly F. factors supports the juvenile court’s
decision here. Mother’s lifelong battle with methamphetamine abuse is a
serious problem that has persisted despite her participation in several
residential treatment programs over the years. Although she insists that the
children’s best interests are furthered by residing with her because they have
lived with her for most of their lives, we cannot say the juvenile court abused
its discretion in concluding otherwise based on the children’s growing bond
with maternal uncle and their expressed preference to live with him. The
court’s decision was also supported by the evidence that Mother was not
sufficiently apprised of or capable of meeting S.A.’s special medical needs.
Given the focus on the children’s need for permanence and stability, the
juvenile court did not abuse its discretion in concluding that granting
Mother’s section 388 petition was not in the children’s best interests.
DISPOSITION
The petition for extraordinary writ is denied. The request for a
temporary stay is denied as moot. Our decision is immediately final as to
this court. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)
11
_________________________
Fujisaki, J.
WE CONCUR:
_________________________
Tucher, P. J.
_________________________
Rodríguez, J.
A164031/D.A. v. Contra Costa County Superior Court
12