Opinion
G055807
07-31-2018
In re B.M. et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. W.M. et al., Defendants and Appellants.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant W.M. Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant B.M. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. DP026662, DP026663) OPINION Appeal from a judgment of the Superior Court of Orange County, Gary L. Moorhead, Judge. Affirmed. Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant W.M. Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant B.M. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
* * *
W.M. (mother) and Brent M. (father) appeal from the juvenile court's order denying their Welfare and Institutions Code section 388 (all statutory citations are to this code) modification petitions, and its subsequent order terminating their parental rights to sons Brent M. II (Brent, born December 2008), and B.J. (born March 2011). Mother contends the juvenile court abused its discretion when it found she had not demonstrated changed circumstances justifying a modification of the prior order removing the children from her care and bypassing reunification services. Similarly, father also contends he substantially ameliorated the causes leading to the dependency proceedings after the juvenile court terminated reunification services, and requests a remand for "renewed family reunification services." Finding no basis to reverse the judgment, we affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
In the early morning hours of September 26, 2015, law enforcement officers found the children alone inside a motorhome in the parking lot of a Lake Forest motel. The children were dirty, the RV smelled of dog urine, and officers found marijuana and associated paraphernalia within reach of the children. The boys did not know where father was and revealed that he previously had left them alone. When father emerged from the motel about 90 minutes later, the officers arrested him for child endangerment and took the children into protective custody.
The Orange County Social Services Agency (SSA) filed a dependency petition alleging the parents failed to protect the children, left them without any provision for support, and the parents had abused or neglected the sibling of each child. (§ 300, subds. (b) [child has suffered or there is a substantial risk of serious physical harm or illness as a result of the failure or inability of his parent to adequately supervise or protect the child]; (g) [child has been left without any provision for support]; (j) [child's sibling has been abused or neglected as defined and there is a substantial risk the child will be abused or neglected as defined].)
The petition recited the events of September 26, mother and father's substance abuse and criminal histories, the parents' prior domestic violence, mother's loss of parental rights to three half siblings, and mother's and father's current incarcerations. The petition alleged mother had tested positive for opium at the time she gave birth to Brent in 2008, and tested positive for marijuana when she gave birth to B.J. in March 2011. In May 2011, the children had been declared dependents in Los Angeles County, and mother failed to reunify with them. The Los Angeles court petition included allegations the parents grew marijuana in their home within access of the children and exposed the children to secondhand smoke, father was under the influence of marijuana while caring for the children, and mother had a five-year history of drug abuse. Mother also had her parental rights terminated to three older daughters between 2004 and 2006 based on her failure to address substance abuse issues and complete her case plan.
B.J. had untreated tooth decay, and later required extensive dental work and lost four teeth. The children had not attended school and were developmentally delayed. Brent was placed in kindergarten rather than first grade, and B.J. began preschool. The boys began to progress socially and developmentally.
The children appeared attached to father during his monitored visits. But father yelled, insulted, and harassed the monitors, disregarded visitation rules, and refused redirection. Father told the children they need not listen to the caregiver because they would be coming home soon, and suggested the foster family, agency social worker, and others were hurting them. He expressed no interest in the children's academic progress or health, and often could not cope with the children for more than two hours of the three hour visits and left early.
Father stated he attended Alcoholics Anonymous. He began using a drug patch. The social worker did not receive urine drug test results, however. Father did not enroll in a substance abuse program, therapy, or parent mentoring, asserting he did not have a drug problem and the programs conflicted with his work schedule.
A Los Angeles County social worker reported father had an ongoing history of police involvement, homelessness, and living in an environment unsafe for the children. He had limited means to care for the children, failed to enroll them in school, and did not take responsibility for his actions. Father claimed he had completed parenting and drug testing during a previous case in Los Angeles County, and had attended family therapy for 18 months.
The children knew mother was in prison for stabbing father, but they expressed a desire to see her. Mother, who had not seen her children in two years, was released from prison and appeared in court November 17, 2015. The court authorized monitored visitation, a minimum of six hours per week, and monitored phone calls once a week. The court also authorized funds for drug testing.
SSA placed the children in Julie K.'s home in late November 2015. The parents were often late for their visits with the children, cancelled visits at the last minute, or did not show up, causing the children to become tearful and angry. During a visit on Christmas Eve, mother exploded in rage, yelling and shaking her fist at the caregiver. The caregiver stated the parents had deteriorated to an unsafe level and she no longer wanted to monitor visits. During a gap in visits while a new monitor was located, the children appeared calmer and happier.
In December 2015, the parents submitted on the allegations of the petition, which the court sustained under section 300, subdivisions (b) and (j). At the January 2016 disposition hearing, the court declared the children dependents, and removed them from the parents' custody. The court ordered reunification services for father, including counseling to address domestic violence, parenting education, substance abuse testing and treatment, and a psychiatric and medical evaluation. The court bypassed reunification services for mother. (§§ 361.5, , subd. (b), 361, subds. (b)(10), (11), & (13). Father received three supervised visits per week, and mother received six hours of monitored visits per week.
Father made minimal progress on his case plan over the next 12 months. Father denied having any problems that required treatment, and refused to participate in any services. As of August 2016, he had drug tested approximately three times. In October he tested positive for methamphetamine, and he provided no verification he had enrolled in substance abuse treatment. In August 2016, he began attending Adult Mental Health Services (AMHS), but refused to sign a release of information apart from his attendance, and was later terminated for nonattendance. The social worker could not determine whether father had completed a psychological evaluation. Father began counseling in October 2016 and a parenting class in November 2016, but he was terminated from both for nonattendance in November 2016. His housing situation was unknown, and he failed to provide proof of employment.
In May 2016, father was arrested for owning ammunition and driving on a suspended license. He pleaded guilty in August 2016 and received a 90-day jail term. In late November he was arrested on an outstanding warrant.
On December 24, 2016, father appeared at mother's visit, pounded and pressed his face against the window of the visitation center in view of mother and the children. Police officers were summoned. Three days later, mother obtained a temporary restraining order against him.
Father repeatedly blamed others for the removal of his children. He accused SSA of kidnapping, abusing, and trafficking his children, and he harassed the caregiver, visitation monitors and social workers.
Father did not visit the children for much of this period and called to speak with them only sporadically. He repeatedly discussed details of the dependency case with the children and refused attempts at redirection. He acted aggressively, once approaching the caregiver's car and hitting the window.
Mother stopped visiting the children after the jurisdiction hearing, but resumed monitored visits around March 2016. She had difficulty establishing boundaries with the children, and redirecting their behavior, but eventually improved.
Meanwhile, the children were thriving in the caregiver's home. After therapy Brent's anxiety resolved, but returned when father resumed visiting him. Brent became upset and had angry outbursts, which included banging his head on a wall or table, and acted aggressively and disruptively at school.
At the 12-month review hearing, father testified he had no substance abuse issues and had been clean his entire life aside from marijuana, which he had not used in over a year. He claimed he did not require substance abuse treatment or a 12-step program, and his recent mental health evaluation was "okay." He claimed he was participating in counseling and parenting classes, and he also cited the extensive services he received since 2011 in his Los Angeles case, which closed just before the current dependency began. He had just graduated from Hospitality House, a facility providing supportive programs, including alcohol-related and faith-based programs, and Alcoholics/Narcotics Anonymous (AA/NA). He also emphasized he was tested for drugs randomly for his employment.
Father testified he did not plan on resuming his relationship with mother, claiming he had filed for divorce and sought restraining orders against mother and her boyfriend. He acknowledged he and mother had contact over the past year in violation of mother's parole. He also had approached her in court, at visits, and at her treatment facility.
Following the 12-month review, the court found return of the children to father's physical custody would create a substantial risk of detriment to their physical or emotional well-being, and set a permanency hearing under section 366.26 hearing. It continued mother's monitored visits of six hours per week and set father's monitored visits at two hours a week.
In preparation for the permanency hearing, SSA recommended terminating parental rights, noting the children were generally adoptable, and the caregiver desired to adopt them. The children continued to thrive in the caregiver's home. They were happy, healthy, and progressing developmentally and academically. Asked if they wanted to live with the caregiver forever, both children stated "I like it" and "we get toys." Both boys stated their home was with their brother and the caregiver.
According to Brent's therapist, the child exhibited symptoms of posttraumatic stress disorder (PTSD). He missed his parents, but loved his current home and school. He was worried and confused because his parents told him during visits he and B.J. would be returning to the parents and leaving the caregiver's home. Because of the uncertainty about his living situation, his trauma symptoms had increased. He broke items, including his glasses, his body became tense, and he was less expressive.
In June 2017 mother filed a modification petition under section 388. She sought return of the children to her custody with family maintenance services and a trial release. The petition asserted she had been participating in residential substance abuse treatment at Phoenix House since February 3, 2016. She had drug tested randomly and consistently had clean results. She completed an anger management program in August 2016, and in January 2017, she completed a parenting class. She had participated in a one-year batterer intervention program and a domestic violence program. She also engaged in individual therapy and she had been employed full time for four months. She consistently had visited with her boys, and she asserted they were bonded to her.
Father also filed a modification petition seeking return of the children to his custody under family maintenance and a trial release, or alternatively, additional reunification services. He continued to participate in services even though reunification services were terminated, and recently completed five months of therapy and met his therapeutic goals. He had enrolled in additional therapy through Strong Families Strong Children, and completed a parenting class. He had obtained a commercial driver's license, which required passing a drug test, and was working full time. He continued to pass drug tests given by his employer. He asserted he had been visiting the children regularly and they were bonded to him.
The court conducted an evidentiary hearing on the parents' petitions concurrently with the section 366.26 hearing on various dates beginning in September 2017. Mother testified concerning her participation in Phoenix House, her negative drug tests, and her participation in counseling, anger management, parenting, batterers' treatment, and domestic violence programs. She described her employment and noted her consistent visitation.
Mother initially stated she attended AA at least once a week, but subsequently admitted she stopped attending after moving out of Phoenix House. She had participated in AA for 18 months, but was only on Step 1. She could avoid triggers using coping skills and by having no contact with father, explaining she obtained a restraining order against father because he was stalking her and was verbally abusive.
Mother testified she began using methamphetamine at age 18. She attempted to stop using drugs in 2000, at age 23, enrolling in a program, but after one year of sobriety, she relapsed six months after leaving the program. She attempted to stop using methamphetamine between the births of her children, and she enjoyed another period of sobriety spanning a year and half. Her longest period of sobriety before Phoenix House was nine years between July 2007 and February 2016. She initially stated she did not consider marijuana a drug, and did not count her positive test when B.J. was born in March 2011. Currently. she had been sober for 18 months, explaining she had learned more at Phoenix House than with prior treatment programs. She currently was living at a hotel where the children also could reside. Mother, however, conceded the foster mother was providing good care for the children and it would not be in their best interests to leave the current placement, although she later testified the children would be better off with her.
Father's therapist Ana Mauro testified father completed 19 therapy sessions, which was what the referral included. Father achieved the goals set by SSA, gaining insight into his behavior and learning how to deal with stress. He now understood he needed to cooperate with the court and SSA. Father, however, required additional therapy, and he planned to restart therapy, focusing on substance abuse triggers, employment, boundaries, communication skills with the children, and cooperating with the court and visits.
According to the therapist, father acknowledged an alcohol abuse problem, but his therapy did not address substance abuse. Father claimed he was not doing well with his coping skills, due to stress and separating from mother. Suffering from anxiety and depression, father was traumatized, upset, and uncooperative with SSA when he began therapy. The therapy helped with depression, but the therapist could not say whether father was currently suffering from depression. They discussed domestic violence and father suggested it was mutual and he took responsibility for his role. The therapist was not concerned that father was preoccupied with mother, but she was unaware mother had a restraining order against him.
Father testified concerning his participation and progress in services since January 2017. This included therapy, completion of a parenting class, a 21-day residential program completed in December 2016, support groups, and employment, which required clean drug tests. He did not provide verified drug test results, however. Since April 2017, he had lived in a house suitable for the children. Father testified he was no longer interested in contacting mother and had not seen or called her in several months other than at court.
At the section 366.26 portion of the hearing, the children's therapist Celia Huling testified concerning the children's PTSD and related behavioral concerns, and explained that resolving PTSD required a stable living situation. The children stated they missed their parents and enjoyed spending time with them because it was fun and they played games, but the children referred to the caregiver as their family. They loved both her and their parents.
The caregiver, Julie K., testified she was committed to providing a permanent home for the children. The children were happy with her, and feared removal from Julie's home. When the case began, they would run away screaming when a social worker visited. Brent, who was almost 9 years old, had difficulty with transition and change. He was "in a state of uncertainty," knowing "there is [someone] bigger than himself who is going to make a decision he can't control, and he lives with the day-to-day question of where is he going to live next."
The children never told Julie they wanted to return to their parents. They never asked to call or visit either parent, and they did not get upset if a visit was missed. B.J. initially did not want to visit mother because he remembered seeing her stab father. Julie sought out therapy for the children to address night terrors, anger, and destructive behavior. After visits with father, the children became destructive, disruptive in school, agitated, and destabilized.
The court denied the parents' section 388 motions on October 31, 2017, and on November 20, 2017, the court terminated parental rights.
II
DISCUSSION
A. Denial of Mother's Section 388 Petition
Each parent joins in the arguments contained in the other's briefs to the extent applicable. (Cal. Rules of Court, rule 8.200(a)(5).)
Mother contends the juvenile court abused its discretion when it denied her section 388 petition. "Section 388 allows an interested person to petition the juvenile court for a hearing to change, modify or set aside a previous order if the petitioner can establish changed circumstances and that the proposed order would be in the best interests of the child. The burden of proof is on the petitioner. [Citations.]" (In re Cliffton B. (2000) 81 Cal.App.4th 415, 423 (In re Cliffton B.); In re Edward H. (1996) 43 Cal.App.4th 584, 592 [changed circumstances means the problems that led to the dependency have been resolved or eliminated]; see In re J.C. (2014) 226 Cal.App.4th 503, 527 [parent's petition for either an order returning custody or reopening reunification efforts must establish how the change will advance the child's need for permanency and stability].) A juvenile court's decision concerning a section 388 petition "will not be disturbed on appeal in the absence of a clear abuse of discretion. [Citations.]" (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416 (In re Jasmon O.); (In re Stephanie M. (1994) 7 Cal.4th 295, 318 [reviewing court will not disturb decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination].)
Mother argues "by the time of the hearing on her section 388 petition she had absolutely made efforts to treat the problems that led to the sibling's dependencies and she was absolutely no longer resistant to treatment for her substance abuse problem. (§ 361.5, subds. (b)(10), (b)(11) and (b)(13).)" She emphasizes that she completed a 15-month substance abuse treatment program at Phoenix House, and maintained sobriety for 18 months. She also completed an anger management program, a domestic violence program, and a 52-week batterer intervention program. She also completed parenting programs, participated in individual and group therapy and obtained and maintained employment. "Therefore, not only did the bypass provisions of section 361.5, subdivisions (b)(10), (b)(11) and (b)(13) no longer apply but Mother had successfully completed what would have been her reunification service plan. [¶] In essence, Mother presented evidence that she had completely turned her life around and there was no evidence showing she had not done so."
The juvenile court found mother had shown "incredible progress making a better life for herself," but her circumstances were "'changing'" rather than "'changed.'" The court reasonably found that given her long history of drug abuse, domestic violence, and related criminal behavior, mother was still traveling the road to recovery, but had not reached her destination. Mother, 44 years old at the time of the section 388 hearing, had been abusing methamphetamine since the age of 18. Notably, after approximately a year and a half at Phoenix House, mother was only on the first step of a 12-step program. Mother's history supports the court's conclusion mother's circumstances were still undergoing change. Mother had been abusing methamphetamine and neglecting her children for over two decades. She had attended "prior treatment programs . . . as substantive [and lasting longer than] Phoenix House." She had periods of sobriety longer than the 15 months in this case, only to relapse. She previously had regained custody of other children after receiving reunification services, only to lose custody again after relapsing because of drug abuse.
At trial, mother claimed she had been sober since July 2007, and denied testing positive for drugs at the time of Brent's birth, which contradicted an allegation of the sustained petition. She testified she did not consider marijuana a drug, and therefore did not include her positive test at the time of B.J.'s birth in 2011 as interrupting one of her longer periods of sobriety. Mother only recently had moved out of Phoenix House and into a motel. Many of her services and programs were required by the terms of her parole, which would soon end, and her sobriety had not been tested outside the confines of parole and program monitoring. Given mother's lengthy and repeated history of substance abuse, participation in prior treatment, and subsequent relapses, the court reasonably could conclude mother's current sobriety and completion of other programs did not rise to the level of changed circumstances. (See In re Cliffton B., supra, 81 Cal.App.4th at pp. 423-424 [seven months sobriety insufficient to show changed circumstances given repeated history of periods of sobriety followed by relapse into drug use]; see also In re Ernesto R. (2014) 230 Cal.App.4th 219, 223 [drug treatment showed changing, not changed circumstances].)
Even if mother had demonstrated changed circumstances, the court reasonably could conclude returning Brent and B.J. to her custody was not in their best interests. (See In re Jasmon O., supra. 8 Cal.4th at p. 418 [under section 388 dispositive question is whether child's best interests require setting previous order aside]; In re Kimberly F. (1997) 56 Cal.App.4th 519, 532 [factors to consider include seriousness of the problem which led to the dependency and strength of bonds between the dependent child and both parent and caretaker]; In re J.C., supra, 226 Cal.App.4th at p. 527 [court should consider whether modification will advance the child's need for permanency and stability].) Mother's problems with substance abuse, domestic violence, and neglect were serious and longstanding. Mother argues she "completely ameliorated those problems" leading to the dependency, but the court reasonably concluded otherwise. Brent and B.J. had been living with their caregiver Julie for almost two years. Both boys stated they wanted to live with her. Mother, to her credit, testified the children's placement was appropriate, they were being well cared for, they had adjusted well, and they needed stability in their lives. Mother did not show she could provide the stability and permanence Brent and B.J. required. Because the court did not abuse its discretion in denying mother's section 388 petition, we need not address her contention reversal of the section 388 order requires reversal of the order terminating her parental rights. B. Denial of Father's Modification Petition
Father also argues he met his burden to show changed circumstances. He asserts the primary causes leading to the children's removal was his leaving them "in a mobile home alone, that the children were exposed to marijuana, that Father and mother had engaged in domestic violence and that Father had a history of criminal conduct." He admits at the time the court terminated reunification services in January 2017, he had failed to "meaningfully address any of these issues, was homeless and was unemployed." But "by the time of the hearing on his section 388 petition for modification in October 2017, [he] had substantially addressed, removed or ameliorated those conditions" and "he was fundamentally a different person from who he was when services were terminated."
We conclude the juvenile court did not abuse its discretion in denying father's modification petition. Our review of the record supports the juvenile court's observation that father, like mother, had made "excellent progress" in "changing for the better." Father had continued counseling at his own expense with an SSA-recommended therapist, who believed he successfully had addressed treatment goals identified by SSA. He had completed a parenting program, and obtained part-time employment driving a hotel van, which required random drug tests and remaining drug free. He attended NA/AA weekly, maintained contact with a former mentor at another abuse program, and attended a weekly sober living treatment class. Father attended every court hearing and consistently visited his children, which he described as loving and positive. Finally, father had obtained a three-bedroom home through the help of a veteran support group, and rented out bedrooms to cover rent.
In contrast to these new and positive developments, father had a long history of criminal behavior, homelessness, and providing an unsafe living environment for the children. He previously had received reunification services, including parenting, drug testing, and therapy, during the earlier case in Los Angeles County. (See In re Marcelo B. (2012) 209 Cal.App.4th 635, 642 [parent's completion of programs not evidence of changed circumstances because parent already had received extensive treatment for his alcoholism that did not prevent relapse].) During much of the current case, father behaved erratically and aggressively, and largely refused to engage in case plan services. Mother testified she obtained a restraining order against him because he was stalking her, and she feared him.
At the hearing, father would not answer directly when he last saw mother apart from the court proceedings, but he admitted he had contacted her in violation of the restraining order. He tested positive for methamphetamine as recently as November 2016. He claimed he had drug tested clean three or four times since January 2017, but he did not submit the actual drug test results. His case plan required a comprehensive substance abuse treatment program with random drug testing, but father asserted only that he had stayed in a sober living facility for three weeks before the court terminated services.
Father still had numerous issues to overcome. Father's therapy did not address his drug abuse, and he failed to disclose to his therapist his positive methamphetamine test. The therapist also did not recall if father revealed that mother had obtained a restraining order against him, and he did not disclose he had been stalking mother. Father claimed his mental health evaluation came back "okay," but he did not allow the social worker to access the evaluation, nor did he attach it to his modification petition. His therapist testified he was still in counseling and needed to work on additional treatment goals. The therapist could not offer an opinion on whether it would be in the children's best interest to return to father's care. Father continued to deny or minimize his role in the dependency, and blamed social workers for his difficulties. He defined his problems as frustration, stress, and trauma resulting from the children's removal and case plan requirements, and his failure to protect the children from mother's abuse. The juvenile court had ample basis to conclude father had not gained sufficient insight into the problems that led to removal of the children. Consequently, we conclude the court did not abuse its discretion in determining circumstances had not changed sufficiently to grant father's petition.
Finally, even if father had demonstrated changed circumstances, the court reasonably could conclude returning Brent and B.J. to father's custody, or extending him additional reunification services, was not in their best interests given father's serious and longstanding issues, and the children's need for stability and permanency.
Father states "while the minors had been with their caretaker for two years, she had only recently come to the decision to adopt them. She - while providing excellent care for the children - was a single parent in her early sixties. Accordingly, while the boys were undoubtedly bonded to her, their bond with Father was also an important factor to consider in light of the high potential for the permanent placement of the children to be altered by future circumstances." We decline to speculate whether "future circumstances" might require a change in placement. The question before the juvenile court was whether father demonstrated changed circumstances such that the proposed order would be in the best interests of the children. Given father's history and prospects, the court did not abuse its discretion in denying father's petition. --------
III
DISPOSITION
The orders denying the section 388 petitions and terminating parental rights are affirmed.
ARONSON, ACTING P. J. WE CONCUR: FYBEL, J. IKOLA, J.