Opinion
H044211
08-23-2017
In re W.S., a Person Coming Under the Juvenile Court Law. MONTEREY COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. M.V., et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. 16-JD-000018)
In March 2016, the Monterey County Department of Social Services (Department) filed a juvenile dependency petition on behalf of W.S. M.V., the mother of W.S., (mother) now appeals from the juvenile court's November 15, 2016 orders that (1) denied her petition to modify the June 7, 2016 order bypassing family reunification services for her and (2) terminated parental rights and declared adoption to be the permanent plan for W.S. pursuant to Welfare and Institutions Code section 366.26. W.S.'s alleged father, whose initials are the same as the child, (father) also appeals from the November 15, 2016 order terminating parental rights.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
Mother asserts that she may challenge the court's June 7, 2016 jurisdiction/disposition findings and orders, including the order bypassing family reunification services for her, because she was not properly advised of the requirement of filing a writ petition to preserve her appellate rights following the order setting the section 366.26 hearing on June 7, 2016. With respect to orders made on June 7, 2016, mother seeks to challenge the sufficiency of evidence to support some of the court's true findings on the petition's allegations and the court's denial of reunification services for her pursuant to subdivisions (b)(10) and (b)(11) of section 361.5. Mother also contends that the court's June 7, 2016 order requiring parents to "make and keep an appointment with a family planning agency to discuss appropriate measures for birth control" was an abuse of discretion. As to the November 15, 2016 order denying her petition to modify the June 7, 2017 reunification order (§ 388), mother maintains that the trial court abused its discretion.
The father filed a letter brief joining in mother's opening brief, explaining that he has an ongoing interest in the success of mother's claims since reinstatement of her parental rights would result in the reinstatement of his parental rights. (See In re A.L. (2010) 190 Cal.App.4th 75, 80; In re Mary G. (2007) 151 Cal.App.4th 184, 208; In re DeJohn B. (2000) 84 Cal.App.4th 100, 110.)
Rule 5.695(i) states that, "[a]t the disposition hearing, the court may not set a hearing under section 366.26 to consider termination of the rights of only one parent unless that parent is the only surviving parent, or the rights of the other parent have been terminated by a California court of competent jurisdiction or by a court of competent jurisdiction of another state under the statutes of that state, or the other parent has relinquished custody of the child to the county welfare department." Rule 5.725(g) specifies in part that "the court must not terminate the rights of only one parent unless that parent is the only surviving parent, or the rights of the other parent have been terminated by a California court of competent jurisdiction or by a court of competent jurisdiction of another state under the statutes of that state, or the other parent has relinquished custody of the child to the county welfare department."
We affirm the juvenile court's order terminating parental rights as to W.S. and selecting adoption as the permanent plan for him.
I
Procedural History
In March 2016, a juvenile dependency petition was filed on behalf of W.S. under section 300, subdivisions (b) (failure to protect), (g) (no provision for support), and (j) (abuse of sibling). As to all those jurisdictional grounds, the following facts were alleged.
In addition to W.S., mother had three older children, ages one, five and eleven. Each of those children had been the subject of a juvenile dependency case resulting in the child's adoption. Those children each had a different father from each other and from W.S. (the father of mother's third child was described in the petition as "unknown"). Mother's history with the Department dated to 2003.
Subsequently, the "Jurisdiction/Disposition Report" identified a presumed father for mother's third child based on marriage.
In the dependency cases on behalf of mother's two oldest children, mother was offered family reunification services, but services were terminated. The adoption of mother's oldest child was finalized on May 2, 2007. The adoption of mother's second child was finalized on July 9, 2012. In the dependency case on behalf of mother's third child, she was not offered reunification services, and he was adopted on October 19, 2015.
Mother's second and third children had "positive drug screens at birth due to the mother's drug use." Mother's history included "chronic substance abuse problems, violent criminal behavior resulting in incarceration, domestic violence, poor judgment, and babies born drug exposed in utero . . . ."
Mother had "a substance abuse and criminal history that significantly affect[ed] her ability to care for [W.S.]." She had been "in and out of jail and/or prison for several years, which ha[d] completely inhibited her ability to care for any of her children." Since 2005, mother had been "convicted of burglary, theft, assault with a deadly weapon, driving under the influence, receiving a stolen vehicle, driving on a suspended license, receiving stolen property, and taking a vehicle without the owner's consent." Mother had been convicted of burglary (Pen. Code, § 459) in 2014 and falsely identifying herself to a police officer (Pen. Code, § 148.9, subd. (a)) in 2015. In January 2016, mother was sentenced to a three-year prison term, and she subsequently gave birth to W.S. Mother was "currently incarcerated at the Chowchilla Women's Prison."
The Department was contacted because nobody was available to care for W.S. The Department had contacted W.S.'s paternal grandmother, who reported that father did not want the baby. Father had not contacted the Department. No parent was currently available to care for W.S.
At the detention hearing, the juvenile court appointed counsel for the minor, mother, and father. It ordered paternity tests for father. It ordered W.S. committed to the Department's care, custody, and control for suitable placement pending further hearing.
The "Jurisdiction/Disposition Report," filed on April 14, 2016, recommended that the trial court sustain the petition, adjudge W.S. a dependent child of the court, remove him from parental custody, deny reunification services to both parents, and set the matter for a hearing under section 366.26. W.S. had been placed in the adoptive home of mother's third child, W.S.'s half-sibling. Mother had completed the ICWA-020 form, which indicated that mother did not have any Indian ancestry. The report set forth mother's extensive criminal history. It noted that, although mother's third child "had positive toxicology screens for methamphetamines and opiates in 2014," mother had apparently told the emergency social worker that she had been sober for four years.
The Department had made multiple attempts to contact father, but he had not made himself available to the Department, and he had reportedly questioned his paternity. Since he was not the "presumed father" of W.S., the Department was recommending that he not be offered reunification services. (See § 361.5, subd. (a).) The Department was also recommending that mother not be offered reunification services because she had not made reasonable efforts to treat the problems that led to the removal of W.S.'s half-siblings from parental custody after the termination of court-ordered reunification services and termination of her parental rights in their dependency cases. (See § 361.5, subds. (b)(10) & (b)(11).)
On April 19, 2016, the court held an uncontested jurisdiction hearing. It took judicial notice of the dependency cases of W.S.'s half-siblings. No findings were made.
On June 7, 2016, the juvenile court held a contested disposition hearing. The court again indicated that it was taking judicial notice of the dependency cases of W.S.'s half-siblings. Certain documents were filed on mother's behalf, including an inmate request form in which mother asked to be enrolled in the "Choice Theory" program with a handwritten staff notation that she had been added to the wait list, an educational certificate indicating that mother had completed a TABE ("Test of Adult Basic Education") survey form (see Cal. Code Regs., tit. 15, § 8000), documents indicating that mother was applying for placement with her child in the "Community Prisoner Mother Program (CPMP)," and a letter to whom it may concern asking to be accepted into the FOTEP (which presumably means the Female Offender Treatment and Employment Program) and requesting an acceptance letter. Mother's counsel indicated that she had no objection to the jurisdiction/disposition report coming into evidence, and that mother was not contesting jurisdiction. She asked the court to order reunification services for mother.
Also on June 7, 2016, the juvenile court adopted the Department's recommended findings that the petition's allegations were true and that W.S. was a person described by section 300, subdivisions (b), (g), and (j). With respect to disposition, the juvenile court declared W.S. a dependent child of the court. The court ordered W.S. to be removed from parental physical custody and to remain under the Department's care, custody, and control for suitable placement pending further hearing.
The juvenile court also found by clear and convincing evidence that the circumstances described by section 361.5, subdivisions (b)(10) and (b)(11), existed with respect to mother. It found that the alleged father was not a statutorily presumed father and that consequently he was not entitled to reunification services. Accordingly, the court ordered no reunification services for W.S.'s parents.
In addition, on June 7, 2016, the juvenile court also specifically limited parental rights "to make educational decisions" for W.S., and it appointed his "current caregivers" as the persons entitled to make educational decisions for him. (See § 361, subd. (a).) As part of its disposition, the court ordered mother and father to "make and keep an appointment with a family planning agency to discuss appropriate measures for birth control." The court found that visitation with either parent would be detrimental, and it prohibited such visitation until the Department determined visitation would be safe for the child or until further court order. The court set a hearing under section 366.26.
A notice of hearing on selection of a permanent plan, to be held on October 4, 2016, was filed and served on, among others, mother's counsel of record and on mother in prison.
The "366.26 WIC Report," filed September 12, 2016, recommended that the court terminate mother's and father's parental rights. It reported that mother had been incarcerated at Chowchilla State Prison since before W.S.'s birth and would remain incarcerated until her release, which was expected to occur in the middle of October 2016. W.S. had been born full term and drug free. Mother had had no contact with W.S. since shortly after his birth. The alleged father had had no contact with W.S. or the Department.
According to the section 366.26 report, W.S. was placed with a concurrent foster home, which was also the adoptive home of W.S.'s half-sibling. W.S. was physically healthy, he had no developmental issues, and he had no significant behavioral issues. He was "described as a happy, easy child." The prospective adoptive parents had agreed with the Department's recommended plan of adoption. The social worker had concluded that W.S.'s prospective adoptive parents had demonstrated "a loving and sincere commitment" to him, they had "developed an obvious bond and connection" with him, and they appeared "highly committed" to W.S. and were "capable of meeting his needs." The report recommended that the court find that W.S. was likely to be adopted.
The Department's counsel requested a judicial finding that it had provided adequate legal notice to father of the section 366.26 hearing, then set for October 4, 2016, and filed a written declaration in support of its request. The declaration detailed the Department's multiple efforts to provide notice of the hearing, by mail and personal service, to father.
On October 4, 2016, the juvenile court granted the request of mother's counsel for a continuance of the section 366.26 hearing until November 1, 2016.
In a written order filed October 7, 2016, the juvenile court made findings of fact and determined that the Department had provided notice as required by law to father.
At the hearing on November 1, 2016, mother and her counsel were present. Father was not present. Mother's counsel requested that the matter be set for a contested section 366.26 hearing and a section 388 hearing (on a yet to be filed petition). The juvenile court ordered mother's counsel to file a section 388 petition by November 10, 2016 and scheduled the hearings for November 15, 2016.
On November 10, mother's counsel filed a section 388 petition to modify the juvenile court's June 7, 2016 order bypassing family reunification services to instead offer them to mother ("Request to Change Court Order," form JV-180). Mother requested that the court offer such services to her based on her attendance and completion of certain programs while in custody. Mother asserted that it would be better for W.S. to be in his family of origin, and, by taking the classes and programs, she had "put herself in a better position to parent" him. Documentation was filed in support of mother's request.
At the hearing on November 15, 2016, mother and her counsel were present. Father was not present. The juvenile court denied the request to change its June 7, 2016 bypass order. The court initially suggested that the petition was untimely because it was not filed before the section 366.26 hearing was set. It determined that, in any case, there had been no showing that mother's circumstances had changed or that W.S.'s best interests would be promoted by a modification of the June 7, 2016 order. Under section 366.26, the court found clear and convincing evidence that the W.S. will be adopted, and it terminated parental rights. It declared adoption the permanent plan for him. It ordered W.S. to remain a dependent of the court.
Mother filed a notice of appeal on December 13, 2016. Father filed a notice of appeal on December 29, 2016.
II
Discussion
A. June 7, 2016 Orders 1. Challenge of Earlier Orders on Appeal from Section 366 .26 Orders
Mother argues that we must review the juvenile court's findings and orders made at the June 7, 2016 hearing, at which the court set the matter for a section 366.26 hearing, because she was not properly advised of the requirement of filing a writ petition to preserve her appellate rights as to the order setting a section 366.26 hearing. (See § 366.26, subds. (l)(1), (l)(2); California Rules of Court, rule 5.590(b)(2).) She asserts that she was entitled to, but never received in prison, timely written advisement that any challenge to the order setting the section 366.26 hearing must be raised by special writ petition. A "Clerk's Certificate to Record" filed in this court certifies that the clerk of the Monterey County Superior Court was "[u]nable to locate" "in the court file" a "[p]roof of service from the Monterey Superior Court to appellant mother of advisement of Petition for Extraordinary Writ Relief pursuant to California Rules of Court, Rule 8.450, following the June 7, 2016 . . . setting of a Welfare and Institutions Code section 366.26 hearing."
"An order by the court that a hearing pursuant to [section 366.26] be held is not appealable at any time unless all of the following apply: [¶] (A) A petition for extraordinary writ review was filed in a timely manner. [¶] (B) The petition substantively addressed the specific issues to be challenged and supported that challenge by an adequate record. [¶] (C) The petition for extraordinary writ review was summarily denied or otherwise not decided on the merits." (§ 366.26, subd. (l)(1).) "Failure to file a petition for extraordinary writ review within the period specified by rule, to substantively address the specific issues challenged, or to support that challenge by an adequate record shall preclude subsequent review by appeal of the findings and orders made pursuant to this section." (§ 366.26, subd. (l)(2).)
All further references to rules are to the California Rules of Court.
Rule 5.590(b), states: "When the court orders a hearing under Welfare and Institutions Code section 366.26, the court must advise all parties and, if present, the child's parent . . . , that if the party wishes to preserve any right to review on appeal of the order setting the hearing under Welfare and Institutions Code section 366.26, the party is required to seek an extraordinary writ by filing a Notice of Intent to File Writ Petition and Request for Record (. . . Rule 8. 450) (form JV-820) or other notice of intent to file a writ petition and request for record and a Petition for Extraordinary Writ (. . . Rules 8.452, 8.456) (form JV-825) or other petition for extraordinary writ." (See § 366.26, subd. (l)(3)(A); rule 5.695(g)(10) [disposition order setting section 366.26 hearing].) Rule 5.590(b)(2), states: "Within one day after the court orders the hearing under Welfare and Institutions Code section 366.26, the advisement must be sent by first-class mail by the clerk of the court to the last known address of any party who is not present when the court orders the hearing under Welfare and Institutions Code section 366.26." (See Rule 5.695(g)(10)(A).) Ordinarily, "[f]ailure to file a notice of intent to file a writ petition and request for record and a petition for extraordinary writ review within the period specified by rules 8.450 and 8.452 to substantively address the issues challenged, or to support the challenge by an adequate record, precludes subsequent review on appeal of the findings and orders made under [rule 5.695]." (Rule 5.695(g)(9).)
Mother relies on a series of cases that excused compliance with the writ requirement where the clerk failed to timely mail advisement of that requirement to a parent who was not present when the court set the section 366.26 hearing. In In re Cathina W. (1998) 68 Cal.App.4th 716 (Cathina W.), the court clerk belatedly mailed the advisement to the mother four days after the order setting the section 366.26 hearing and it misstated the date of that order by months, which effectively misinformed her of the deadline for filing the required notice of intent to file a writ. (Cathina W., supra, at p. 723.) In addition, the clerk failed to resend the advisement after the mailing was returned to the court with a dated " 'Return to Sender' stamp" and "a label setting forth a new address" for the mother. (Ibid.)
The appellate court in Cathina W. believed that relief was warranted "because the juvenile court, through no fault of the mother, failed to discharge its duty to give her timely, correct notice." (Cathina W., supra, 68 Cal.App.4th at p. 722.) It agreed that the mother had "shown good cause for her failure to file a notice of intent and request for record and a writ petition." (Ibid.) Accordingly, on appeal from an order terminating parental rights under section 366.26, the appellate court reviewed the juvenile court's earlier findings that had been made when ordering the section 366.26 hearing. (Cathina W., supra, at pp. 718, 723.)
In re Rashad B. (1999) 76 Cal.App.4th 442 (Rashad B.), the mother told the social worker that she was homeless, and a notice of the writ requirement was not sent to her after the order setting the section 366.26 hearing because mother's address was "unknown." (Rashad B., supra, at pp. 445-446.) The appellate court determined that "the failure of the court and [the agency] to have an address to which notice could be sent was attributable to an error by the court" since it was the court's statutory obligation to secure a permanent mailing address for parents. (See id. at p. 449, see also § 316.1; rule 5.534(i) [court must order parent to provide mailing address].)
In this case, the court impliedly had mother's prison address, but the court clerk apparently failed to comply with rule 5.590(b)(2). While this was error, the record reflects that mother was personally served with the "Notice of Hearing on Selection of a Permanent Plan" at the California Institute for Women on June 22, 2016. That notice stated that the hearing would be held on October 4, 2016 and the social worker was recommending termination of parental rights and the implementation of a plan of adoption. But, apparently, mother did not attempt to appeal from the order setting the section 366.26 hearing or otherwise seek to obtain review of that order. Consequently, we are not in the procedural posture to excuse the failure to comply with the special writ requirement and to treat a purported appeal from an order setting a section 366.26 hearing, or an untimely writ petition challenging that order, as a cognizable appeal or writ petition. (Cf. In re Merrick V. (2004) 122 Cal.App.4th 235, 248-249 [appellate court reviewed mother's claims on appeal from setting order because court failed to orally provide her with notice of the writ requirement]; Jennifer T. v. Superior Court (2007) 159 Cal.App.4th 254, 260 (Jennifer T.) [where juvenile court failed to orally advise mother of the writ requirement, appellate court construed purported appeal from order setting section 366.26 hearing as petition for writ of mandate "without regard to the shortened period for writ review that would otherwise be applicable (Rules 8.450, 8.452.)"].)
In Jennifer T., the Court of Appeal, Second District, concluded that "[b]ecause the right to appeal is purely statutory, an appellate court cannot confer the right to appeal as a remedy for the juvenile court's failure to advise a party of the writ requirement. (§ 366.26, subd. (l) (3)(A).)" (Jennifer T., supra, at p. 260.)
Mother's counsel appeared at the October 4, 2016 hearing, and successfully requested a continuance of the section 366.26 hearing to November 1, 2016. But there is nothing in the record to suggest that mother wanted to challenge the juvenile court's earlier jurisdiction/disposition findings or orders.
Mother and her counsel were present at the hearing on November 1, 2016, when the section 366.26 hearing was continued to November 15, 2016, and, on the request of mother's counsel, a hearing on mother's anticipated section 338 petition was set for November 15, 2016. But neither mother nor her counsel indicated that mother wished to challenge the juvenile court's earlier findings or orders.
On November 15, 2016, mother appeared with her counsel. Yet again, neither mother nor her counsel indicated that mother wanted to challenge the juvenile court's earlier findings or orders.
A reviewing court has the authority to "extend any time period" under the rules governing writ petitions to review orders setting a section 366.26 hearing upon "an exceptional showing of good cause." (Rule 8.450(d).) Even Cathina W. recognized that "a parent 'in default by the filing of a late notice of intent may obtain relief from that default for good cause shown.' [Citations.]" (Cathina W., supra, 68 Cal.App.4th at p. 721.) But here the record does not reflect that mother acted with due diligence.
Even though the remedy crafted in Cathina W. and applied in Rashad B. has been relied upon by appellate courts, we question whether it is appropriate in a case such as this one, where a parent received, by personal service, notice of the order setting a section 366.26 hearing and the social worker's recommendation that the court terminate parental rights and adopt a permanent plan of adoption, especially given that the parent had experience with multiple dependency proceedings and previously lost parental rights as to several older children. Mother did not attempt, in some manner, to challenge, or obtain review of, the jurisdiction/disposition findings and orders, including the order setting the section 366.26 hearing, before or on November 15, 2016.
Under the foregoing circumstances, we do not believe that mother has made an exceptional showing of good cause warranting review on the merits of earlier disposition/jurisdiction findings and orders in this current appeal. Ordinarily, "[a]n appeal from the most recent order in a dependency matter may not challenge earlier orders for which the time for filing an appeal has passed. [Citation.]" (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018 (Sara M.); see In re S.B. (2009) 46 Cal.4th 529, 532 [an unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order].) " 'Permitting a parent to raise issues going to the validity of a final earlier appealable order would directly undermine dominant concerns of finality and reasonable expedition,' including 'the predominant interest of the child and state . . . .' [Citation.]" (Sara M., supra, at p. 1018.)
Even if mother were not foreclosed from challenging the June 7, 2016 findings and orders on appeal from the November 15, 2016 order terminating her parental rights and those challenges were cognizable in this appeal, we would conclude that her claims are meritless.
2. Jurisdictional Findings
Mother is contending that the evidence was insufficient to support the juvenile court's findings that she had a substance abuse problem that placed W.S. at a current risk of harm. Insofar as we can discern, mother is asserting that the juvenile court's findings of jurisdiction under section 300, subdivisions (b) and (j), were not supported by substantial evidence.
Under section 300, subdivision (b)(1), dependency jurisdiction exists where "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, . . . by the inability of the parent . . . to provide regular care for the child due to the parent's . . . substance abuse." "The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness." (§ 300, subd. (b)(1).) Section 300, subdivision (j), provides for dependency jurisdiction where "[t]he child's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i) [of section 300], and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions."
Under section 300, subdivision (g), a juvenile court has dependency jurisdiction if "the child's parent has been incarcerated or institutionalized and cannot arrange for the care of the child." Mother does not dispute that the court had jurisdiction over W.S. under the foregoing subdivision. She acknowledges that she "was incarcerated when [W.S.] was born" and "all the individuals she suggested were unable to take care of her child."
"Section 300 contemplates that jurisdiction may be based on any single subdivision." (In re Shelley J. (1998) 68 Cal.App.4th 322, 330.) " 'When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence.' (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)" (In re I.J. (2013) 56 Cal.4th 766, 773.) We decline to do so.
3. No Family Reunification Services for Mother
Even assuming mother's challenge of the court's bypass order is cognizable on this appeal, we find it without merit. Mother asserts that the evidence was insufficient to support an order bypassing reunification services for her under subdivision (b)(10) or (b)(11) of section 361.5 because she was making reasonable efforts to address the problems that led to the removal of her other children. Those sections authorize the bypass of family reunification services to a parent who previously failed to reunify with another child, or whose parental rights to another child had been "permanently severed," where the court finds that the parent "has not subsequently made a reasonable effort to treat the problems that led to removal of" the present dependent child's sibling or half sibling. (§ 361.5, subds. (b)(10), (b)(11).) Mother claims that she was making reasonable efforts to address those problems, and, consequently, those bypass provisions did not apply.
Insofar as mother is claiming that the trial court may have improperly taken judicial notice of the truth of matters stated in court records of the dependency proceedings involving W.S.'s half siblings, we reject it. The presumption that "official duty has been regularly performed" (see Evid. Code, § 664) applies to judges. "In the absence of evidence to the contrary, we presume that the court 'knows and applies the correct statutory and case law.' [Citations.]" (People v. Thomas (2011) 52 Cal.4th 336, 361.) Error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) "It is well settled, of course, that a party challenging a judgment has the burden of showing reversible error by an adequate record. [Citations.]" (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575.) In addition, although the court indicated on June 7, 2016 that it had considered mother's criminal history, the record does not affirmatively establish that the court was relying on that history to bypass family reunifications services for mother under section 361.5, subdivisions (b)(10) and (b)(11).
Section 361.5, subdivision (b)(10), specifies that reunification services need not be provided to a parent when a court finds "[t]hat the court ordered termination of reunification services for any siblings or half siblings of the child because the parent . . . failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent . . . pursuant to Section 361 and that parent . . . is the same parent . . . described in subdivision (a) and that, according to the findings of the court, this parent . . . has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent . . . ." Section 361.5, subdivision (b)(11), specifies that reunification services need not be provided to a parent when a court finds "[t]hat the parental rights of a parent over any sibling or half sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a), and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from the parent."
Mother relies in part on the following facts to support her claim she had made "reasonable effort to treat the problems that led to removal of" W.S.'s half siblings: (1) W.S. did not have a positive drug test when he was born, (2) after he was born, a doctor reported that he did not have any medical issues, and (3) when she was speaking with the hospital social worker and with the Department's emergency social worker, mother denied using drugs while she was pregnant with W.S. Those facts do not, in themselves, demonstrate that mother took any proactive steps to deal with her history of drug abuse.
"Effort" means a "conscientious exertion of power: hard work" or "a serious attempt: try." (Merriam-Webster's Collegiate Dict. (11th ed. 2009) p. 397.) "The reasonable effort requirement focuses on the extent of a parent's efforts, not whether he or she has attained 'a certain level of progress.' [Citation.] 'To be reasonable, the parent's efforts must be more than "lackadaisical or half-hearted." ' [Citations.]" (R.T. v. Superior Court (2012) 202 Cal.App.4th 908, 914 (R.T.).)
The jurisdiction/disposition report in this case disclosed mother's long history of substance abuse. According to the report, a prior status review report from the dependency proceeding on behalf of mother's first child had indicated that, without adequate drug treatment, mother posed a "high risk for exposing her son and [then] unborn child to further substance abuse and violence." The prior status review report indicated that mother had been expelled from a residential treatment recovery program. A document in the dependency proceeding for mother's second child reported that mother's substance abuse remained untreated. "[E]ven though her [second] child was born with a positive toxicology screen for methamphetamines," mother had denied ever using drugs. Mother had claimed that she did not know how her second child had tested positive for drugs and that she had changed.
The jurisdiction/disposition report in this case further stated that it had been observed in past dependency cases that "mother has an extensive and chronic substance abuse history that impairs her ability to safely care for her children." One of W.S.'s older half-siblings, who had been adopted by a family member, apparently had many special needs due to in utero drug exposure, yet mother went on to have another drug-exposed baby. The jurisdiction/disposition report in this case indicated that mother's third child, who was born in 2014, had "positive toxicology screens for methamphetamines and opiates in 2014." Again, mother denied using drugs, and she claimed that she had never used "meth" in her life. Mother had been "unable to explain" the positive test results.
Similarly, when W.S. was born in 2016, mother told a social worker that she had last used drugs "over 4 years ago." When the social worker reminded mother that was not true since her third child, born in 2014, had tested positive for drugs when he was born, mother claimed those test results were a "false positive" and she had not used any drugs.
The jurisdiction/disposition report in this case indicated that mother, who had an extensive criminal record and multiple incarcerations, was incarcerated during at least part of her pregnancy with W.S. The jurisdiction/disposition report indicated that, on March 5, 2015, mother was sentenced to three years of formal probation and 192 days in county jail for felony burglary. She subsequently committed a new offense (Pen. Code, § 148.9), probation was impliedly revoked, and mother was sentenced to a three-year prison term for burglary on January 5, 2016. She reportedly received prenatal care in prison. Although W.S. might not have tested positive for any substances at birth, the record does not reflect that test result could be attributed to any positive action on mother's part rather than her incarceration. There was no evidence that mother had taken any specific steps to stop using drugs, obtain drug treatment, address her drug abuse history, or otherwise treat the problems that led to the removal of W.S.'s half siblings prior to May 2016.
The record before the court on June 7, 2016 reflected that, beginning in May 2016, mother was attempting to get into some prison programs, but the court could still reasonably find that mother had not "made a reasonable effort to treat the problems that led to removal" of W.S.'s half siblings from her custody within the meaning of subdivision (b)(10) or (b)(11) of section 361.5. The "reasonable effort" language does not "mean that any effort by a parent, even if clearly genuine, to address the problems leading to removal will constitute a reasonable effort and as such render these provisions inapplicable." (R.T., supra, 202 Cal.App.4th at p. 914.) "It is certainly appropriate for the juvenile court to consider the duration, extent and context of the parent's efforts, as well as any other factors relating to the quality and quantity of those efforts, when evaluating the effort for reasonableness." (Ibid.)
The evidence before the juvenile court on June 7, 2016 was sufficient to support the juvenile court's finding that mother had not made the "reasonable effort" specified by subdivision (b)(10) or (b)(11) of section 361.5.
4. Family Planning Order
At disposition, as recommended by the Department, the juvenile court ordered that "mother and father shall make and keep an appointment with a family planning agency to discuss appropriate measures for birth control." Mother now asserts that the juvenile court abused its discretion by issuing this order. She did not object to the recommended order in the court below.
On appeal, the Department argues that "[p]roviding free services to educate parents on their [birth control] options as part of their case plan is directly related to helping prevent child abuse and neglect and is offered in a similar vein as substance abuse education and positive parenting education." It contends that the order's language did not "impose any bans on conception or intrude upon the parent's [sic] decision-making regarding birth control or decisions to have additional children." The Department insists that, even if the order was erroneous, any error was harmless.
We find it unnecessary to decide whether the challenged order fell within the juvenile court's broad discretion to issue orders in a dependency case. As mother acknowledges, the forfeiture doctrine applies in dependency cases. Mother did not object to the order in the court below. "[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.]" (In re S.B. (2004) 32 Cal.4th 1287, 1293 (S.B.), fn. omitted; see In re Sheena K. (2007) 40 Cal.4th 875, 880-881 [a right, even a constitutional one, may be forfeited by failing to timely assert it].) While we have discretion to consider a forfeited contention, such discretion "should be exercised rarely and only in cases presenting an important legal issue. [Citations.]" (S.B., supra, at p. 1293.)
"If a child is adjudged a dependent child of the court on the ground that the child is a person described by Section 300, the court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child, including medical treatment, subject to further order of the court." (§ 362, subd. (a).) "The juvenile court may direct any reasonable orders to the parents . . . of the child who is the subject of any proceedings under this chapter as the court deems necessary and proper to carry out this section . . . . That order may include a direction to participate in a counseling or education program, including, but not limited to, a parent education and parenting program operated by a community college, school district, or other appropriate agency designated by the court. . . . The program in which a parent . . . is required to participate shall be designed to eliminate those conditions that led to the court's finding that the child is a person described by Section 300." (§ 362, subd. (d).) "In addition to all other powers granted by law, the juvenile court may direct all such orders to the parent [or] parents . . . of a minor who is subject to any proceedings under this chapter as the court deems necessary and proper for the best interests . . . of the minor. These orders may concern the care, supervision, custody, conduct, maintenance, and support of the minor, including education and medical treatment." (§ 245.5.)
Mother urges us to exercise our discretion in favor of addressing the merits of her contention. We decline to do so. B. November 15, 2016 Order Denying Mother's Petition for Modification
On November 15, 2016, the juvenile court held a hearing on mother's section 388 petition requesting modification of the court's order bypassing reunification services under section 361.5, subdivisions (b)(10) and (b)(11). The papers filed in support of her request included, among other things, documentation of negative test results of a drug screen on October 20, 2016, mother's participation in an 18-hour "Alternatives to Violence Project" workshop in September 2016, her completion of a family law and parenting class on August 20, 2016, mother's participation in Amity Foundation Substance Abuse Program at the California Institute for Women beginning in July 2016, and her N.A./A.A. attendance beginning in May 2016. Mother does not point to any rehabilitative efforts before May 2016.
At the hearing, the juvenile court stated that mother should be "commended for what she did in prison," but the court found that mother had shown "changing circumstances," not the changed circumstances required by law. The court found that mother's petition contained "no facts" showing that reunification services for mother would be in W.S.'s best interest. The court said it was denying "the request for a new hearing."
Mother asserts that the juvenile court abused its discretion in ruling on her section 388 petition by finding that she did not present sufficient evidence of changed circumstances and that court-ordered reunification services would not be in W.S.'s best interest. Mother maintains that she demonstrated the requisite changed circumstances and met the child's best interest standard because she was in an improved position to parent and a child's return to the family of origin is always better.
"[T]he Legislature has provided the procedure pursuant to section 388 to accommodate the possibility that circumstances may change after the reunification period that may justify a change in a prior reunification order." (In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.).) "Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . to change, modify, or set aside any order of court previously made . . . ." (§ 388, subd. (a)(1).) "A petition for modification must be liberally construed in favor of its sufficiency." (Cal. Rules of Court, rule 5.570(a).) "The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.]" (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) But a juvenile court may deny ex parte a petition filed under section 388, subdivision (a), that requests modification of an order if it "fails to state a change of circumstance or new evidence that may require a change of order . . . or fails to show that the requested modification would promote the best interest of the child . . . ." (Rule 5.570(d)(1).)
A parent "requesting the modification under section 388 has the burden of proof." (Rule 5.570(h)(1); see Evid. Code, § 115.) Where, after the reunification period but before termination of parental rights, a parent seeks to modify an order bypassing reunification services under section 361.5, subdivision (b)(10) or (b)(11), to provide reunification services for the parent, the parent must show by a preponderance of the evidence that circumstances have changed and the proposed modification of the order is in the best interest of the dependent child. (See § 388; rule 5.570(h)(1)(D); Evid. Code, § 115; In re L.S. (2014) 230 Cal.App.4th 1183, 1193-1194; In re Casey D. (1999) 70 Cal.App.4th 38, 47; see also 366.26, subd. (i)(1); cf. § 388, subd. (a)(2) [where reunification services were bypassed under section 361.5, subd. (b)(4), (b)(5), or (b)(6), court must find by clear and convincing evidence that the proposed change is in the child's best interests]; rule 5.570(h)(1)(C).) A parent seeking modification of an order "must show changed, not changing, circumstances. (In re Casey D., supra, at p. 47.)" (In re Mickel O. (2011) 197 Cal.App.4th 586, 615.) But "[i]t is not enough for a parent to show just a genuine change of circumstances under the statute." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) "The parent must show that the undoing of the prior order would be in the best interests of the child. [Citation.]" (Ibid.)
After the reunification period has elapsed, "the juvenile court's focus shifts from family reunification to the child's permanent placement and well-being." (In re Nolan W. (2009) 45 Cal.4th 1217, 1235; see Marilyn H., supra, 5 Cal.4th at p. 309 ["Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability"].) Section 388 "provides a means for the court to address a legitimate change of circumstances while protecting the child's need for prompt resolution of his custody status." (Marilyn H., supra, at p. 309.)
Mother had a long history of substance abuse and repeated incarceration. She had denied or minimized her past drug use. She had failed to reunify with each of her other children. Her more recent efforts at rehabilitation, while commendable, were only months old. The juvenile court could reasonably conclude that mother's circumstances were not yet changed, but merely changing. There was no evidence that W.S. could be safely returned to her custody at the time of the hearing or in the near future.
Mother acknowledges that W.S. was taken from her two days after his birth, and they had little opportunity to bond. Mother returned to prison, and it appears that she had no contact with him during the current dependency proceedings, at least up to November 1, 2016. At the time of the November 15, 2016 hearing on mother's modification petition, W.S. was close to nine months old. The jurisdiction/disposition report indicated that W.S. was "bonded to his current caregivers and [half-brother]," and W.S. had "developed a healthy attachment" to those caregivers, who were his prospective adoptive parents as well, and to his half-brother whom they had already adopted. Those caregivers were "highly committed" to W.S., and they were "capable of meeting his needs." The social worker concluded that it was in W.S.'s best interest to remain in the caregivers' care. The record did not show that mother had any relationship with W.S.
At the hearing on November 1, 2016, mother was out of custody and present in court. Her counsel told the court that mother would like to have a visit with W.S. The court had no objection to supervised visitation if the Department, in the exercise of its discretion, approved it. --------
The determination under section 388 was "committed to the sound discretion of the juvenile court, and the trial court's ruling should not be disturbed on appeal unless an abuse of discretion is clearly established. [Citations.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 318 (Stephanie M.).) " '["]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.]" (Id. at pp. 318-319.)
It is not entirely clear whether the court was summarily denying mother's petition for modification as facially deficient or on its merits. Regardless, we discern no error. In explaining why family reunification services for mother would be better for W.S., mother's petition offered the conclusory statement that "[i]t is always better when the child can be placed in his/her family of origin" and asserted that mother had "put herself in a better position to parent this baby" by taking classes and programs. At the hearing, mother's counsel merely stated that mother had been taking classes and trying to put "herself in the position of being able to take custody" and that it was "always advantageous if the child can be placed with the family of origin."
" 'When custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.' [Citations.]" (Stephanie M., supra, 7 Cal.4th at p. 317.) The trial court could reasonably conclude that there had not been an adequate prima facie showing, or an adequate evidentiary showing, that court-ordered reunification services for mother would be in the best interest of W.S. Consequently, it properly denied mother's section 388 petition.
DISPOSITION
The juvenile court's orders terminating parental rights and selecting adoption as the permanent plan for W.S. are affirmed.
/s/_________
ELIA, ACTING P.J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.