Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. J229997 Barbara A. Buchholz, Judge.
Gerard McCusker, under appointment by the Court of Appeal, for Defendant and Appellant.
Jean-Rene C. Basle, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
RICHLI J.
The juvenile court terminated the parental rights of M.M. (the mother) to her infant daughter, A.M. The mother’s sole appellate contention is that the juvenile court erred by denying her “changed circumstances” petition (Welf. & Inst. Code, § 388) - in other words, that the evidence before the juvenile court absolutely required it to grant the petition. We find no error. Hence, we will affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
In November 2009, when A.M. was born, she and the mother both tested positive for amphetamines. Four of the mother’s older children had already been removed from her custody due, at least in part, to her drug use - two in 1999, one in 2001, and one in 2006 - and each removal had become permanent.
The Department of Children and Family Services (Department) detained the child and filed a dependency petition regarding her. In January 2010, at the jurisdictional hearing, the juvenile court found jurisdiction based on failure to protect (Welf. & Inst. Code, § 300, subd. (b)) and abuse of a sibling (id., subd. (j)).
In February 2010, at the dispositional hearing, the juvenile court denied reunification services, due to failure to reunify with another child (Welf. & Inst. Code, § 361.5, subd. (b)(10)), termination of parental rights to another child (id., subd. (b)(11)), and chronic drug abuse (id., subd. (b)(13)). It set a hearing pursuant to Welfare and Institutions Code section 366.26 (section 366.26).
In June 2010, the mother filed a petition pursuant to Welfare and Institutions Code section 388 (section 388). In the petition, as subsequently amended, she asked the juvenile court to grant her reunification services. The juvenile court set a hearing on the petition for the same date as the section 366.26 hearing.
In August 2010, after hearing evidence as well as argument, the juvenile court denied the section 388 petition. It proceeded to terminate parental rights.
II
THE NOTICE OF APPEAL
The Department contends that the mother failed to file a proper notice of appeal.
The mother’s notice of appeal stated: “The order appealed from was made under Welfare and Institutions Code section (check all that apply)....” The box for “[s]ection 366.26” was checked. (Boldface omitted.) There was no checkbox specifically for section 388. However, there was a checkbox for “[o]ther appealable orders relating to dependency, ” which was not checked.
The denial of a section 388 petition is a separately appealable order. (In re Aaron R. (2005) 130 Cal.App.4th 697, 703.) A notice of appeal is supposed to “identif[y] the particular judgment or order being appealed.” (Cal. Rules of Court, rules 8.100(a)(2) [as to appeals generally], 8.405(a)(3) [as to juvenile appeals].) However, “[i]t is a rule both ancient and sound that ‘[n]otices of appeal are not strictly construed, and an appeal will not be dismissed because of a misdescription of the judgment or order to which it relates unless it appears that the respondent has been misled by such misdescription.’ [Citations.]” (Dang v. Smith (2010) 190 Cal.App.4th 646, 656-657.) For example, one court has held that a notice of appeal from nonappealable jurisdictional findings made in March 1986 could be construed as being from appealable dispositional orders made in April 1986. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 111-112.)
In re Madison W. (2006) 141 Cal.App.4th 1447 is on point. There, the mother filed a notice of appeal from an order terminating parental rights, which had been entered on January 13, 2006. In her opening brief, however, she challenged an order denying her section 388 petition, which had been entered on January 10, 2006. (Madison W., at pp. 1449-1450.) The court stated: “Because this is not the first time such a situation has presented itself to this court, we take this opportunity to hopefully resolve it once and for all, at least as to this court.” (Id. at p. 1450.)
It then declared: “[W]e will henceforth liberally construe a parent’s notice of appeal from an order terminating parental rights to encompass the denial of the parent’s section 388 petition, provided the trial court issued its denial during the 60-day period prior to filing the parent’s notice of appeal.” (In re Madison W., supra, 141 Cal.App.4th at p. 1451.) It explained: “First, the denial of such a section 388 petition is an appealable order. [Citation.] Second, the parent’s notice of appeal is entitled to our liberal construction. [Citation.] Third, appellate jurisdiction to review an appealable order depends upon a timely notice of appeal. [Citation.] Fourth, the notice of appeal would be timely as to the denial of the parent’s section 388 petition, provided the trial court denied the parent’s section 388 petition within 60 days of when the parent filed the notice of appeal. [Citation.] And, finally, respondent is not prejudiced. [Citation.]” (Id. at p. 1450.)
The identical reasoning applies here. We therefore conclude that the mother’s challenge to the order denying her section 388 petition is properly before us.
III
THE DENIAL OF THE SECTION 388 PETITION
A. Additional Factual Background.
The evidence admitted at the section 388 hearing included the section 388 petition itself, three social worker’s reports, and the oral testimony of the foster mother. At the end of the hearing, however, the juvenile court stated: “The court would like to take some additional time to review the file in its totality and then we will come back.... Any objection to the court reviewing the remainder of the file?” Counsel for all parties affirmatively stated that they did not object. Accordingly, the facts below are drawn from the entire record (minus only reporter’s transcripts of earlier hearings, which would not have been available to the juvenile court).
The mother admitted having used methamphetamine since about 1994. She had prior convictions for possession of a controlled substance for sale and for being under the influence of a controlled substance.
She had been provided with reunification services at least twice in connection with the removals of her older children. In 1999, she had completed a residential drug treatment program at Cedar House. She had attended the Inland Behavioral Health Services drug treatment program five times, without ever completing it. She had attended the New House drug treatment program four times but had completed it only once, in 2006. In 2007, she had completed a drug court program.
In November 2009, almost immediately after A.M. was detained, the mother entered a residential treatment program at Inland Valley Recovery Services. After one month, however, she was terminated due to unspecified “rule infractions.”
In December 2009, the mother entered another residential treatment program at the Gibson House Alcoholic Recovery Center for Women. At the end of February, she successfully completed the Gibson House program. She then joined a five-month county-run outpatient program, which included individual counseling as well as classes in relapse prevention, recovery skills, parenting, anger management, and domestic violence prevention.
All of the mother’s drug tests were negative. She had obtained a two-bedroom apartment, and she was receiving unemployment benefits.
The child had been placed with the prospective adoptive family almost immediately after birth. The social worker reported that the child had “a bonded relationship with her foster parents and her foster siblings....” Theirs was “the only home [she] ha[d] ever known.” Her first word - “dada” - was directed at the prospective adoptive father.
The mother had supervised visitation once or twice a week. She was always “appropriate.” The child appeared to be comfortable with her but was never upset when the visits were over.
B. Additional Procedural Background.
In February 2010, at the dispositional hearing, the judge who denied reunification services had stated:
“Unfortunately your history is so extensive and your failure to follow through with sobriety is so extensive that I cannot, in all good conscience, say that this time is different.
“I truly hope it is different. And, I truly hope, as you say, that this time you mean business and you will turn your life around.... [A]ll is not without hope. We will set this matter for [a section 366.26] hearing in four months.
“If you continue in Gibson House to succeed, if you continue to test negative, if you do the things that you need to get to turn your life around, then [your counsel] can file a petition on your behalf and the court can consider that in deciding whether to ultimately terminate your parental rights.”
In August 2010, a different judge denied the section 388 petition. She stated:
“The primary concern that the court has... is that your sobriety, your current sobriety [ha]s simply not been long enough. And it’s unpredictable, based on your history. So, for that reason, the court will deny the [section] 388 petition.”
C. Analysis.
“A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new or changed circumstances exist, and (2) the proposed change would promote the best interest of the child. [Citation.] The parent bears the burden to show both a ‘“legitimate change of circumstances”’ and that undoing the prior order would be in the best interest of the child. [Citation.]” (In re S.J. (2008) 167 Cal.App.4th 953, 959 [Fourth Dist., Div. Two].)
“The petition is addressed to the sound discretion of the juvenile court, and its decision will not be overturned on appeal in the absence of a clear abuse of discretion. [Citation.]” (In re S.J., supra, 167 Cal.App.4th at pp. 959-960.) “‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’ [Citation.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) “‘The denial of a section 388 motion rarely merits reversal as an abuse of discretion.’ [Citation.]” (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)
“In enacting section 388, the Legislature has provided a procedural vehicle to accommodate the possibility that circumstances may change after the reunification period, thereby justifying a change in a prior order. [Citation.]” (In re Jackson W. (2010) 184 Cal.App.4th 247, 258.) However, “[a]fter the termination of reunification services, ... ‘the focus shifts to the needs of the child for permanency and stability’ [citation]....” (In re Stephanie M., supra, 7 Cal.4th at p. 317.)
“It is only common sense that in considering whether a juvenile court abuses its discretion in denying a section 388 motion, the gravity of the problem leading to the dependency, and the reason that problem was not overcome by the final review, must be taken into account.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. omitted.) The Kimberly F. court “doubt[ed]” that “the parent who loses custody of a child because of the consumption of illegal drugs and whose compliance with a reunification plan is incomplete during the reunification period” could “ever show a sufficient change of circumstances to warrant granting a section 388 motion.... It is the nature of addiction that one must be ‘clean’ for a much longer period than 120 days to show real reform.” (Id. at p. 531, fn. 9.)
For example, in In re Amber M. (2002) 103 Cal.App.4th 681, the appellate court concluded that it was not an abuse of discretion to deny the mother’s section 388 petition, based in part on the fact that she had a 17-year history of drug abuse, had relapsed twice previously, and had been clean for only 372 days. (Amber M., at pp. 685-687.) Likewise, in In re C.J.W. (2007) 157 Cal.App.4th 1075 [Fourth Dist., Div. Two], this court concluded that it was not an abuse of discretion to deny the parents’ section 388 petitions, given that they had extensive histories of drug use, they had failed to reunify with other children, and “[t]heir recent efforts at rehabilitation were only three months old....” (C.J.W., at p. 1081.)
Here, similarly, the mother had a 16-year history of drug abuse. She had failed to reunify with other children, even though she had been provided with reunification services. She had failed to complete at least eight prior drug treatment programs; most important, even after she had successfully completed at least three, she had nevertheless relapsed. Thus, even though she had been clean for about nine months, the juvenile court could reasonably conclude that there was so much doubt about her ability to maintain her sobriety that she had not carried her burden of proving changed circumstances.
The juvenile court could likewise conclude that she had not carried her burden of proving that the relief sought was in the best interest of the child. A.M. had been living with the prospective adoptive parents virtually since birth; they were her parents, in every sense except the biological. Her best interest lay in promptly and permanently joining their family.
The mother complains that the juvenile court engaged in “a bait-and-switch” by telling her in February that she could file a section 388 petition if she turned her life around, and then by denying her section 388 petition in August after she had turned her life around. She concludes, rather bitterly, “[A]t the very least, the juvenile court should have refrained from raising false hopes on Mother’s part.”
There are so many things wrong with this reasoning that we hardly know where to begin. First, the mother did not raise any such complaint at the section 388 hearing below. Thus, she has forfeited this contention for purposes of appeal. (In re Desiree M. (2010) 181 Cal.App.4th 329, 334.)
Second, the judge at the dispositional hearing was as specific about what was going to happen as he could be, in the absence of a crystal ball. What he actually said was, “[I]f you do the things that you need to... to turn your life around, then [your counsel] can file a petition on your behalf and the court can consider that in deciding whether to ultimately terminate your parental rights.” (Italics added.) Thus, he implied that turning her life around could prevent termination of parental rights; he did not promise that it would. And that was the truth. He could not predict how strong a showing the mother ultimately might be able to make, nor could he predict how another judge might rule. We cannot say that it would have been an abuse of discretion to grant a section 388 petition - especially if the mother made a stronger showing.
Third and finally, even assuming the juvenile court did raise false hopes, the mother cites no legal authority for the proposition that reversible error results. Hence, she has forfeited any such contention. (Cal. Rules of Court, rule 8.204(a)(1)(B); Doe v. Roman Catholic Bishop of Sacramento (2010) 189 Cal.App.4th 1423, 1434.) Presumably she has in mind some version of estoppel. Precisely because she did not raise this issue below, however, there is no evidence that she actually relied on the court’s comments. Also, successfully staying off drugs would hardly constitute the detrimental reliance that estoppel requires. (See generally Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 34.)
We therefore conclude that the juvenile court properly denied the mother’s section 388 petition.
IV
DISPOSITION
The order denying the section 388 petition is affirmed.
We concur: McKINSTER, Acting P.J., MILLER J.