In re P.H. CA4/1

Filed 8/17/23 In re P.H. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 P.H., a Person Coming Under the D082051
Juvenile Court Law.
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. NJ15729)
Plaintiff and Respondent,
v.
A.M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Nadia Keilani, Judge. Affirmed.
Tracy M. De Soto, under appointment by the Court of Appeal, for
Defendant and Appellant.
Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy
County Counsel and Emily Harlan, Deputy County Counsel, for Plaintiff and
Respondent.
In this dependency case, A.M. (Mother) appeals from a juvenile court
order denying her petition under Welfare and Institutions Code1 section 388
for modification of prior court orders placing her two-year-old son P.H. with
his maternal grandmother, terminating Mother’s reunification services, and
scheduling a section 366.26 hearing to select a permanent plan for the child.
We conclude that the juvenile court committed no error by finding that
Mother failed to make a prima facie showing that (1) there were substantially
changed circumstances, or (2) her requested modification was in P.H.’s best
interests. Accordingly, we affirm the juvenile court’s order.
FACTUAL AND PROCEDURAL BACKGROUND2
A. Initial Dependency Petition
Mother gave birth to P.H. in December 2020, when Mother was 19
years old and J.H. (Father) was 21 years old. During her pregnancy, Mother
used marijuana and cocaine. P.H. tested positive for marijuana at birth.
In January 2021, when P.H. was one month old, Father went to
Mother’s home and punched her in the “face and head 10 times” during an
argument while she was holding P.H. Weeks later, Mother and P.H. moved
in with Father where he continued to be verbally and physically abusive
towards Mother. In one incident, Father threw a phone at Mother while she
was holding P.H. and shoved her in P.H.’s presence, and on another occasion,
Father used Mother’s own hand to hit her and “make it look like” Mother had
hurt herself. Mother was reluctant to seek a temporary restraining order
(TRO) against Father, so P.H.’s maternal grandmother completed and filed
1 Undesignated statutory references are to the Welfare and Institutions
Code.
2 Our summary of the facts and procedural history is limited to provide
context relevant to the single issue presented in this appeal.
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one for Mother. The court subsequently issued a criminal protective order
(CPO), then modified it to be effective until April 2026. The CPO generally
restrained Father from having any contact with Mother and P.H. or coming
within 100 yards of them.
In March 2021, the San Diego County Health and Human Services
Agency (Agency) filed a section 300, subdivision (a) dependency petition for
three-month-old P.H., alleging he faced a substantial risk of serious physical
harm due to the domestic violence incidents between his parents in his
presence. At the jurisdiction hearing in April, the court found true the
allegations in the petition and declared P.H. a dependent. After finding no
detriment to placing P.H. with Mother, the court restored P.H.’s custody to
Mother and ordered family maintenance services for her. P.H. resided with
Mother at his maternal grandmother’s home.
B. The Family Maintenance Period
The family maintenance case plan required Mother and Father to
“participate in services recommended by the Agency” and create a safe
environment for P.H. Initially, Mother actively engaged in family
maintenance services, but beginning in June 2021, she began missing her
domestic violence groups and parenting classes. Around the same time, she
started going out, returning home late, drinking, and using drugs.
In early July, Mother was arrested for driving under the influence
(DUI), resulting in her driver’s license being suspended. Weeks later, Mother
got into an argument with the maternal grandmother, left home, and took
P.H. with her to the paternal grandmother’s house where Father lived.
Eventually, Mother returned to the maternal grandmother’s home.
In August 2021, Father broke into the maternal grandmother’s home
because he was upset that Mother had used his debit card. The maternal
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grandmother’s roommate was home at the time. During an argument,
Father “hit” Mother and took her phone. The maternal grandmother called
the police. When law enforcement arrived, Mother denied any physical
altercation or injury. Mother later called the sheriff’s department to drop all
the charges against Father. She ultimately reconsidered and decided to press
charges after she saw how the incident “deeply affected” the roommate.
Between July and August, Mother communicated regularly with
Father, despite the CPO and their history of domestic violence. On her
birthday in late August, Mother used cocaine and alcohol and was so
intoxicated that she was taken to the hospital. Around this period, Mother
spent “substantially” less time with P.H., staying out all night and sleeping
in late. She was arrested for another DUI, but bailed herself out and
continued to drive on a suspended license.
At a special hearing in late September 2021, the juvenile court ordered
Mother not to “possess or imbibe any alcohol or non-prescription drugs” and
to “follow the no contact order regarding father.” From September to
October, Mother continued to consume alcohol and possibly drugs, frequently
stayed out overnight, and drove with a suspended license. She also spent
time with various men at motels and a park and spent very little time caring
for P.H. The maternal grandmother had to step in to care for P.H., and
Mother repeatedly rebuffed her requests for help.
C. P.H.’s Section 388 Petition
In late October 2021, P.H.’s counsel filed a section 388 petition, asking
the court to remove P.H. from Mother’s custody and place P.H. in the
maternal grandmother’s custody with Mother out of the home. The petition
asserted a modification order was appropriate because Mother left P.H.
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without care for “extended periods of time,” had not enrolled in substance
abuse treatment, and was becoming “erratic and unstable.”
Days later, Mother began smoking marijuana in P.H.’s presence. She
continued to stay out overnight, often with a male friend or the paternal
uncle. Mother subsequently moved out of maternal grandmother’s home and
began staying with friends.
At a hearing in November 2021, the juvenile court scheduled a
contested modification hearing for a later date at Mother’s request. In the
meantime, the court ordered Mother to vacate the maternal grandmother’s
home, authorized P.H. to remain on an extended stay with the maternal
grandmother, and allowed liberal supervised visits for Mother.
The criminal court attached a Secure Continuous Remote Alcohol
Monitor (SCRAM) device to Mother’s ankle to monitor her alcohol intake.
Despite this, she continued to drink alcohol. She was admitted into an
intensive outpatient program for substance abuse treatment, but was
discharged after she was arrested and briefly taken into custody. The
program gave her another chance to start services after she was released, but
she chose not to participate. Mother completed a parenting class at the end
of November. In December, she was admitted to the hospital for “mental
health concerns.”
At the contested modification hearing in December, the Agency
supported P.H.’s section 388 petition. The court found that Mother had not
“fulfilled her responsibilities as a day[-]to[-]day caretaker” of P.H. since he
was placed in her custody at the disposition hearing eight months earlier.
The court further found that Mother had “violated the Court’s conditions” by,
among other things, driving under the influence on a suspended license,
being involved in another domestic violent incident, and getting hospitalized
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due to “alcoholic issues.” Considering “the spiralling [sic] and escalating
nature of . . . [M]other’s circumstances,” the court concluded that P.H. was “at
risk.” It thus granted the minor’s section 388 petition, ordered P.H. removed
from Mother’s physical custody and placed with the maternal grandmother,
and converted the family maintenance case plan to a reunification plan. The
Agency social worker assigned to the case later explained to Mother the
seriousness of going from family maintenance to reunification.
D. The Reunification Period
In December 2021, Mother, appearing to be under the “influence of
something,” barged into the maternal grandmother’s home unannounced to
get her mail and use the restroom. Mother exhibited “odd behavior” and was
“aggressive in front of [P.H.].” The maternal grandmother was “scared” and
“said she was going to call the police.”
The following month, Mother missed many sessions of domestic
violence and substance abuse services. She was eventually terminated from
both programs. The substance abuse program discharged Mother because
she refused to participate in a higher level of care and lacked stable housing.
Mother’s supervised visits with P.H. were mostly positive but
inconsistent. Between December 2021 and January 2022, Mother continued
to maintain contact with Father and sometimes visited his family’s home.
At a special hearing in January 2022, the court ordered a
neuropsychological evaluation be added to the case plan following a doctor’s
recommendation.
In April 2022, Mother enrolled in an inpatient drug treatment program
but left after just three days. At the child and family team meeting, the
social worker expressed concern Mother had yet to start or complete any
services on her case plan. Mother acknowledged the concern and said she
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would try to complete them. In May, Mother declined the Agency’s request
for a drug test. During the reporting period, Mother’s communication with
the social worker was “very inconsistent.”
About five months after the court ordered Mother to do so, she
completed her psychological evaluation in June 2022. During the evaluation,
Mother denied “any shortcomings and faults, even those minor and common
ones encountered by most adults.” She claimed to experience no
psychological issues and “embraced a self-favorable presentation.” She
lamented that “the Agency and her mother continue[d] to try and control her
actions and [were] not necessary for her to adequately parent her child and
self-sustain.” The psychologist concluded that “she is not prepared to or
adequately able to provide for herself without the providence of those around
her to ensure her basic needs are met (food, shelter, medical care), let alone
be charged with the care, security, and custody of [P.H.].” The psychologist
diagnosed Mother with alcohol, stimulant, and cannabis use disorders;
antisocial personality traits; and unspecified depressive and anxiety
disorders based on her history.
Mother failed to attend the child and family team meetings in June and
October 2022. She admitted she was still using marijuana and opiates.
Mother also had three warrants for her arrest.
Based on Mother’s lack of progress on her case plan and failure to start
or complete substance abuse services or domestic violence education, and the
Agency’s belief that Mother was incapable of caring for P.H. and would pose a
significant safety threat to him, the Agency recommended termination of
Mother’s reunification services and a section 366.26 hearing. Adopting the
Agency’s recommendation at the six-month review hearing in October 2022,
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the court terminated Mother’s reunification services and scheduled a section
366.26 hearing to terminate parental rights.
In its section 366.26 report, the Agency noted the maternal
grandmother had expressed willingness to adopt P.H. It found the maternal
grandmother had demonstrated an ability to provide for P.H.’s “physical,
emotional and developmental needs,” as she had been providing full-time
care for P.H. since November 2021. The Agency thus recommended
termination of parental rights and a permanent plan of adoption by the
maternal grandmother.
E. Mother’s Section 388 Petition
Before the section 366.26 hearing, Mother filed a section 388 petition in
March 2023, requesting that she be given custody of P.H. with family
maintenance services, or alternatively, that reunification services be
reinstated. P.H. was then two years and three months old. Mother asserted
that she had “participated and made progress in residential treatment to
mitigate the risks preventing her from safely caring for [P.H.],” she was
“participating in substance abuse treatment, group therapy, and domestic
violence prevention treatment,” she would be “transitioning to outpatient
treatment and sober living on 3/6/23,” and she had “maintained visitation
with” P.H. The petition attached several letters and a quarterly progress
report from the inpatient treatment program.
The letters showed that Mother had received five weeks of residential
substance abuse and domestic violence treatment beginning in late January
2023. As of March 2, 2023, she had completed her “detox/residential
treatment” and transitioned to a different program for outpatient treatment
and sober living. Mother had “ultimately surrendered to the fact that she
will continue to enhance her recovery in a structured environment where she
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can remain accountable and continue to build her sober support network.”
One letter stated Mother was “working on processing trauma/issues that
perpetuate her substance use disorder.”
The progress report stated Mother had “made good progress with
developing insight into the impact of the violence on herself and [her] child.”
Mother reported that she had begun using fentanyl after learning that her
boyfriend had a child with someone else, but she had “maintained her
sobriety since she began her treatment.” A therapist noted that the mother’s
fentanyl use might account for her lethargic appearance in group sessions
and her very low verbal participation. The therapist diagnosed Mother with
opioid dependence in early remission and mild alcohol use in sustained
remission. The therapist did not seem to be aware of Mother’s recent alcohol
abuse and two DUIs during the dependency proceedings, however, as Mother
apparently only disclosed to the therapist that she had abused alcohol for two
years as a teenager. The therapist recommended that Mother have
individual therapy sessions “to prevent a relapse into a severe state of
depression and/or decompensation” and “to process her childhood traumas in
a more private setting.”
At the prima facie hearing on March 23, 2023, P.H.’s and the Agency’s
attorneys opposed the section 388 petition. After hearing arguments, the
court first noted that “once reunification services are terminated the focus of
the proceeding changes from family reunifications to child’s best interest in
permanence and stability.” The court noted that Mother had not enrolled in
the inpatient treatment program until nearly four months after the
termination of reunification services, which the court found to be “a
significant period of time” given P.H.’s young age. In particular, the court
said, “while I do appreciate [M]other’s renewed effort to attempt to remedy
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the circumstances that resulted in [P.H.] being taken out of her care, the
court finds that what mother is alleging is merely that circumstances are
changing and not that they have, in fact, changed.” (Italics added.) It further
found “that it would not be in [P.H.]’s best interest to delay these proceedings
further because his best interest is very clearly in finding permanence and
stability in his life.” (Italics added.) The court thus summarily denied the
petition.
Mother appealed.
DISCUSSION
Mother argues that the juvenile court abused its discretion by
summarily denying her section 388 petition because she established a prima
facie case for relief. We disagree.
A. Applicable Principles
“Section 388 provides an ‘ “escape mechanism” ’ for parents facing
termination of their parental rights by allowing the juvenile court to consider
a legitimate change in the parent’s circumstances after reunification services
have been terminated. [Citation.]” (In re Alayah J. (2017) 9 Cal.App.5th 469,
478.) Section 388 permits the parent of a dependent child to petition the
juvenile court for a hearing to modify a prior order (1) “upon grounds of
change of circumstance or new evidence” and (2) if “the best interests of the
child . . . may be promoted by the proposed change of order.” (§ 388, subd.
(a)(1), (d); see Cal. Rules of Court, rule 5.570(a).)
Before an evidentiary hearing is required, the petitioning parent must
first make a prima facie showing that these two elements are supported by
“probable cause.” (In re G.B. (2014) 227 Cal.App.4th 1147, 1157 (G.B.); In re
Marilyn H. (1993) 5 Cal.4th 295, 310 (Marilyn H.).) “While the petition must
be liberally construed in favor of its sufficiency [citation], the allegations
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must nonetheless describe specifically how the petition will advance the
child’s best interests.” (G.B., at p. 1157.) If the allegations would fail to
sustain a favorable decision even if they were accepted as true, the petition
may be summarily denied without an evidentiary hearing. (Ibid.)
“In determining whether the petition makes the required showing, the
court may consider the entire factual and procedural history of the case.” (In
re K.L. (2016) 248 Cal.App.4th 52, 62.) “ ‘Not every change in circumstance
can justify modification of a prior order.’ ” (In re N.F. (2021) 68 Cal.App.5th
112, 120.) The petition “must show changed, not changing, circumstances”
(In re Mickel O. (2011) 197 Cal.App.4th 586, 615 (Mickel O.)), and the
changed circumstances “must be substantial” (In re Ernesto R. (2014) 230
Cal.App.4th 219, 223). That is, there must be a showing that “the problem
that initially brought the child within the dependency system [has been]
removed or ameliorated.” (In re A.A. (2012) 203 Cal.App.4th 597, 612.)
A section 388 petition is addressed to the sound discretion of the
juvenile court and will not be disturbed on appeal absent a clear abuse of
discretion. (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.) The denial of
a section 388 motion rarely merits reversal as an abuse of discretion. (Ibid.)
B. The Court Properly Denied Mother’s Section 388 Petition
Mother first contends that her circumstances had changed
substantially because she had “undergone detoxification and residential
substance abuse rehabilitation,” remained sober, and gained “insight” into
the impact of domestic violence. Although we commend Mother for her
efforts in starting down the path of recovery, we nevertheless conclude that
the trial court did not abuse its discretion by finding “changing” rather than
“changed” circumstances.
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In cases involving a history of substance abuse problems, courts have
consistently declined to recognize substantially changed circumstances based
on a relatively brief period of sobriety or engagement in another treatment
program. (Ernesto R., supra, 230 Cal.App.4th at p. 223 [despite her
completion of a drug treatment program, mother’s recent sobriety merely
reflected changing circumstances given her history of relapses]; In re C.J.W.
(2007) 157 Cal.App.4th 1075, 1081 [concluding “three months old” efforts at
sobriety did not demonstrate changed circumstances]; In re Cliffton B. (2000)
81 Cal.App.4th 415, 423 [concluding seven months of sobriety were
insufficient to show changed circumstances given long history of addiction].)
This case is no different. The juvenile court properly concluded that
“what mother is alleging is merely that circumstances are changing and not
that they have, in fact, changed.” (Italics added.) Mother had a serious
history of drug and alcohol abuse. She had received substance abuse
treatment as a teenager three times—for six months at a time. She used
cocaine and marijuana while pregnant with P.H.; she used cocaine,
marijuana, and Percocet during the family maintenance period; she began
using fentanyl and continued using it until she entered a treatment program
in January 2023; and she abused alcohol and was arrested for DUI twice
during the dependency proceedings.
Although Mother completed a five-week residential treatment program
starting in January 2023, she was still transitioning to an outpatient
program at the time of the March 2023 hearing on her section 388 petition.
Several weeks had passed since her discharge from residential treatment, yet
she did not provide the juvenile court with evidence that she was in fact
participating in outpatient treatment or a sober living program. Mother
herself acknowledged the need to “continue to enhance her recovery in a
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structured environment where she can remain accountable and continue to
build her sober support network.” Moreover, her domestic violence therapist
believed she still needed individual therapy in addition to group sessions “to
prevent a relapse into a severe state of depression and/or decompensation”
and “to process her childhood traumas in a more private setting.” Given
Mother’s extensive history of drug and alcohol abuse, and her continuing
need for further therapy and outpatient treatment, the juvenile court
reasonably concluded that her recovery was still a work in progress,
notwithstanding her completion of a five-week treatment program late in the
dependency proceedings.
Because the juvenile court did not abuse its discretion by finding no
substantial change of circumstances, it acted properly by denying Mother’s
section 388 petition. However, the juvenile court also ruled against Mother
on the second requirement for relief under section 388 by finding that the
proposed modification would not be in P.H.’s best interests based on the need
for “permanence and stability in his life.” We conclude that this finding was
also not an abuse of discretion.
“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.’ ” (Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.);
Marilyn H., supra, 5 Cal.4th at p. 309 [“The parent is given a reasonable
period of time to reunify and, if unsuccessful, the child’s interest in
permanency and stability takes priority.”].) “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.” (Stephanie M., at p. 317.)
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Mother filed her section 388 petition nearly five months after
reunification services had been terminated. By this point, P.H.’s need for
permanency and stability was the juvenile court’s primary concern.
(Stephanie M., supra, 7 Cal.4th at pp. 317–318.) And it was Mother’s burden
to show how her proposed change would “advance the child’s need for
permanency and stability.” (In re J.C. (2014) 226 Cal.App.4th 503, 527.)
The juvenile court properly concluded that Mother failed to make a
prima facie showing that her proposed modification would advance P.H.’s
need for permanency and stability. From birth, the only real stability P.H.
has had in life is his maternal grandmother, who has cared for him for
several years and is “committed to providing permanency, stability, and love
through adoption.” Although the Agency social worker noted “some strength
in the parent-child relationship” between Mother and P.H., she also observed
that Mother’s “continued struggle with substance abuse, untreated mental
health and personal issues have disrupted the development of a substantial
parent-child relationship.” Mother exposed P.H. to domestic violence, used
drugs in his presence, failed to provide him with care and supervision, left
him in the care of his maternal grandmother, and visited him inconsistently.
Mother’s continued sobriety after a five-week treatment program was
anything but certain, and she provided no proof that she had found or could
provide “a permanent and stable home” for P.H. (In re I.B. (2020) 53
Cal.App.5th 133, 163), given that she had moved out of the maternal
grandmother’s home and had been living with friends.
As the social worker concluded, the “benefits of adoption outweigh
maintaining a relationship” between Mother and P.H., who “deserves the
continued stability provided in his current placement.” In these
circumstances, the juvenile court reasonably found that Mother had failed to
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establish a prima facie case that delaying the selection of a permanent plan
of adoption by maternal grandmother was in P.H.’s best interests or served
his need for permanency and stability. (See Marilyn H., supra, 5 Cal.4th at
p. 310 [“Childhood does not wait for the parent to become adequate.”]; In re
Mary G. (2007) 151 Cal.App.4th 184, 206 [delaying the selection of a
permanent plan to see if a parent “might be able to reunify at some future
point[ ] does not promote stability for the child or the child’s best
interests.”].)3
3 Mother relies on the factors set forth in Kimberly F. (1997) 56
Cal.App.4th 519, 530–532, to contend that the juvenile court erred in denying
her modification petition. But the same court that decided Kimberly F. has
since rejected application of these factors after the juvenile court has
terminated reunification services and set a section 366.26 hearing for
selection of a permanent plan. (In re J.C., supra, 226 Cal.App.4th at p. 527.)
The J.C. court correctly concluded that the Kimberly F. factors “do not take
into account the Supreme Court’s analysis in Stephanie M., applicable after
reunification efforts have been terminated.” (Ibid.) Even if we were to
consider the Kimberly F. factors, however, we would reach the same result.
The Kimberly F. factors are: “(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.) Overall, even assuming the truth of the
facts alleged in Mother’s section 388 petition, these factors do not weigh in
her favor for the reasons we have discussed.
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DISPOSITION
The March 23, 2023 order denying Mother’s section 388 petition is
affirmed.
BUCHANAN, J.
WE CONCUR:
O'ROURKE, Acting P. J.
IRION, J.
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