Opinion
E068907
04-17-2018
In re M.R., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. L.C., Plaintiff and Appellant.
Clare M. Lemon, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.No. SWJ005454) OPINION APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni, Judge. Affirmed. Clare M. Lemon, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
L.C. is the mother (Mother) of M.R. (the child), who was age 14 on the date of the challenged orders. Mother appeals from the court's orders at the six-month review hearing: (1) denying her petition under Welfare and Institutions Code section 388 asking for placement or reunification services; and (2) placing the child with his father (Father) over the child's objection. We affirm.
Section references are to the Welfare and Institutions Code except where otherwise indicated.
FACTS AND PROCEDURE
The Prior Dependency—2006-2008, 2011-2012
The child was previously declared a dependent child in February 2006 at the age of three. Mother was arrested for driving under the influence, the child was not properly restrained in a car seat, and police found drug paraphernalia in the car. The court also found true that Mother and Father engaged in domestic violence, Father abused controlled substances, and Father was not a member of the household and did not provide the child with care and support. The child was placed with Mother on family maintenance. Mother and Father were provided with reunification services and Father was ordered not to reside in the family home. Reunification services to Father were terminated in 2007. Later in 2007, a section 387 petition alleged Mother continued to abuse drugs and alcohol and failed to participate in services. The child was taken into protective custody and detained in an out-of-home placement. Mother's reunification services were terminated. In 2008, the court selected as the child's permanent plan a legal guardianship with the maternal grandparents. In 2010, Mother filed two separate, unsuccessful section 388 petitions asking to have the guardianship rescinded and the child returned to her custody. In 2011, when the child was eight years old, the court granted Mother's section 388 petition and placed the child with her on family maintenance. In 2012, the court terminated the dependency, granted family law orders, and ordered no visitation for Father pending further orders.
Recent Referral— September 2016
CPSS received a referral on September 15, 2016, alleging general neglect. The reporting party stated the child had witnessed several incidents of domestic violence in which Mother's boyfriend was physically and emotionally abusive toward her. The reporting party stated the domestic violence began when the child was in the 5th grade, and at that time the child started being truant in grades 5, 6, and 7, which caused his grades to drop. The child was reportedly anxious that his Mother would take him and move to Utah, and so the child had begun living with his best friend's family in Riverside, with Mother's permission. The child was experiencing headaches and stomach aches, and did better emotionally when not in contact with Mother. Mother had left the boyfriend several times, but always returned to him. The referral was evaluated out for lack of safety factors.
The Current Dependency
Safety Plan—October/November 2016
The current dependency began in November 2016, with the delayed report of an incident from October 15, 2016. The child had been living in Riverside with his best friend's family since the beginning of the 2016-2017 school year. The child was visiting Mother and her boyfriend (whom the child considered his stepfather since he was about three years old) at their home. The boyfriend began arguing with Mother and said some "horrible things" to the child. The boyfriend escalated to punching Mother in the face and body as the child sat next to her on the couch. Mother told the child to leave, so he called his friend's mother to pick him up. The child did not initially tell his friend's mother about the incident. However, he was sick for the next week with stomach aches, requiring attention from the school nurse. The child also suffered from stress and anxiety, for which he was receiving counseling at school once a week. About a week later, the child told his friend's mother about the incident, and she then contacted DPSS.
On October 30, 2016, the child told the responding social worker that he had previously lived with his maternal grandmother in Lake Elsinore, that he did not get good grades there because he was not receiving any help at home, and that he had stopped attending because he was bullied at school. The child was now attending middle school in Riverside and was 14 years old. The child stated that Mother's boyfriend's behavior had begun deteriorating about two years earlier, but he did not know why. The child reluctantly disclosed that he believed Mother and her boyfriend were selling methamphetamine and marijuana from their home and had guns in the home. The child stated that he did not have a relationship with Father and had not seen him since he was three years old. The child expressed fear when the social worker told him she was going to Mother's home to speak with her and the boyfriend, because he believed Mother would remove him from the home where he was staying.
On November 6, 2016, the social worker went to the home Mother shared with her boyfriend, accompanied by law enforcement. Mother denied any domestic violence, but admitted a history of methamphetamine use and stated she had relapsed about one or two months prior because of stress. Police arrested the boyfriend after they found methamphetamine on him, as well as a backpack in the home filled with marijuana broken down into bags and jars. The boyfriend told the social worker that he and Mother had recently relapsed into drug use because of stress, and blamed himself for Mother's relapse. The two were in the process of packing up the house and moving out. They intended to "couch surf" locally while they prepared to move to Utah. The social worker told Mother DPSS would institute a safety plan to avoid taking the child into custody. As part of the plan, the child would remain where he was with the friend's family, or nonrelated extended family members (NREFM), Mother and boyfriend would enroll in family preservation, and would notify the social worker of any change of address within 24 hours. Both adults agreed.
The next night, the boyfriend visited the NREFM home and became threatening when they denied his demands to see the child. He banged on their door and stated he had guns at home. The child became upset and anxious and spent most of the next school day in the nurse's office. On November 20, 2016, after failing to contact Mother by telephone or in person at the maternal grandparents' home, the social worker made an unannounced visit to Mother's home, to find the house had been vacated shortly after the last visit. The child became distressed and started crying when the social worker informed him Mother could not be found, because he had believed Mother was staying with his maternal grandparents. The child contacted Mother and her boyfriend on his cell phone and handed it to the social worker. They stated they were in Michigan. The couple said they would come to California to remove the child from the NREFM. At that time, DPSS determined the safety plan was not working and it was necessary to place the child in protective custody and file a section 300 petition. The NREFM was willing to take official placement of the child.
Detention—November/December 2016
The social worker contacted Father by telephone. Father expressed concern about the child's safety. Father was living in Bakersfield with his wife, their six-year-old son, and his wife's 10-year-old brother. Father worked as a diesel mechanic. Father disclosed that Kern County had recently terminated the dependency of his six-year-old son. Father had completed both inpatient and outpatient drug treatment programs, parenting education, and was participating in N.A. Father stated he had been sober for three years from marijuana and methamphetamine. Father had been in prison from 2012 to 2014, and returned to prison for most of 2015, on charges of possessing a stolen vehicle, credit card fraud, possessing a firearm, and prior felonies. He was discharged from parole in September 2016. Father stated he had no mental health history, and that he actively attends church. Father stated he last spoke with the child on the telephone in April 2016, and that the child had said things were going well. Father was making payments of $50 a week to reimburse the state for when Mother was collecting state aid.
A search revealed Mother was convicted in 2006 and 2013 of driving under the influence, and in 2005 and 2006 of drug possession.
At the detention hearing held November 30, 2016, the court ordered the child detained. The court authorized telephone calls and minimum twice weekly supervised visits with Mother, and issued a temporary restraining order against Mother's boyfriend. The court appointed counsel for Father, declared him a presumed father and ordered telephone visits between Father and the child.
Jurisdiction and Disposition—December 2016/January 2017
DPSS filed the jurisdiction and disposition report on December 16, 2016. DPSS recommended the court declare the child a dependent child, deny Mother reunification services, grant Father reunification services, and grant Father supervised visitation. The basis for denying Mother reunification services was section 361.5, subdivision (b)(10)—previous failure to reunify. At the time of the report, the social worker had been unable to make contact with Mother in December.
DPSS provided the details of the child's half brother's dependency in Kern County. In January 2015, broken syringes were found in the family's motel room. Father had a long history of substance abuse, specifically methamphetamine. In April 2015, the court took jurisdiction over the half brother and found true allegations under section 300, subdivisions (b)—failure to protect; (j)—abuse of sibling; and (g)—no provisions for support (due to incarceration). In May 2015, the half brother was returned to his mother on family maintenance. In July 2016, Father completed his case plan and reunified with the half brother, and the dependency case was closed. Prior to the dependency, Kern County Child Protection Service had received three referrals regarding the half brother in 2010, three referrals in 2011, and one in 2014, mostly for domestic violence, general neglect, and drug use, which included the mother breast feeding the infant while on drugs. Father was arrested at least twice for domestic violence, and one of those times served nine months in jail. In the current matter in Riverside County, Father was cooperative with the social worker and candid about his past, and expressed regret for not being a good father. Father stated he took full advantage of the reunification services when he was released from jail at the end of 2015, had made great changes in his life, and was now clean and sober. Father told the social worker that he and his wife now had a stable home, he was employed full time as a diesel mechanic, and he wanted to re-establish a relationship with the child and make up for having been an absent parent. Father asked for telephone contact, eventual visitation and reunification services. The child stated he was not interested in having telephone contact with Father.
The contested jurisdiction and disposition hearing was held on January 12, 2017. Mother was not present and her counsel could not contact her. The child's counsel submitted on the DPSS recommendations and commented that the case was "unfortunate" because the child "does have a strong bond with his mother. However, I think it is in his best interest to focus on himself at this point and move forward to permanence for him so that he can get his grades up and focus on his health issues." Counsel pointed out that the child had "suffered a lot of health issues because of the turmoil." The court found true the allegations in the petition regarding Mother's and Father's failure to protect the child under section 300, subdivision (b), and declared him a dependent child. The court granted reunification services to Father but denied them to Mother under section 361.5, subdivision (b)(10) and (b)(13)—resistance to drug abuse treatment. The court directed DPSS to facilitate telephone, Skype and in-person visits between the child and Father. The court ordered DPSS to assess the maternal grandparents for overnight and weekend visitation and to allow visits with Mother should she make contact.
Six-Month Status Review and Section 388 Petition—February to August 2017
DPSS filed the status review report on June 29, 2017. DPSS recommended the court place the child with Father on family maintenance with authorization to terminate the dependency when Father completes the case plan, and order monthly supervised visits with Mother. The child was in good health. However, he had begun smoking marijuana and leaving the NREFM home without permission and lying about where he was. The child was struggling in school and was on an Individual Education Plan (IEP). In May, the child was suspended from school for three days for vandalism. The child stated he acted out at school because he does not want to move to Bakersfield to live with Father. The child was participating in individual and group counseling to increase his motivation, decrease depression, deal with trauma, and help him talk about his feelings. The NREFM asked that the child be removed from her home because of his negative behaviors. She stated she no longer trusted the child and did not want him around her children. Because of this, the child went on an extended visit with Father beginning June 21.
Mother was living in Lake Elsinore with her grandmother and aunt, and had obtained employment. Mother stated she was not in a relationship and was focusing her attention on the child. Mother was having supervised visits twice a month, and these visits often included the child's maternal grandparents. Mother requested the child have overnight visits with his grandparents. Father lived in Bakersfield with his seven-year-old son, his wife, and his wife's 10-year-old brother. Father reported his visits with the child were going well and that the child seemed to enjoy the visits and participating in social and recreational activities together. Father was participating in parenting classes, individual counseling and random drug testing as required by his case plan, and was making progress and testing negative.
At the six-month review hearing set for July 12, 2017, both the child and Mother asked to have the hearing set contested. The child was not in agreement with the DPSS recommendation that he be placed with Father. Father was present in court, as was the child. Mother was not present. The court continued the hearing to August 4 and ordered the parties not to discuss the case with the child.
Mother filed a section 388 petition for modification of court order on July 14, 2017. Mother asked the court to change its order of January 12, 2017, in which it denied Mother reunification services, and to instead place the child with Mother on family maintenance. In the alternative, Mother asked for reunification services and authorization for DPSS to liberalize visitation to include unsupervised overnight and weekend visits. Mother contended the circumstances had changed, in that she had participated in reunification services on her own, obtained employment, maintained contact with the child, and shared a strong bond with him. Mother argued the requested order would be in the child's best interest because he wants to return to Mother's care, the two share a bond, and mother had been consistent and positive in her visits and contact with the child.
DPSS filed its addendum report on August 1, 2017. DPSS recommended the court deny Mother's petition. DPSS also renewed its recommendation that the court place the child with Father on family maintenance with authorization to terminate the dependency when Father completes the case plan, and order monthly supervised visits with Mother. Father told the social worker that the extended visit with the child was going well, they were getting to know each other and building a relationship, the child got along with everyone in the house, and he had a positive mood. The child told the social worker that he was doing fine at Father's home, his needs were being met, and he was getting along with Father and the other people in the household. Although the child felt safe in Father's home, he did not feel safe in the neighborhood because of "the people." The child was worried about the upcoming hearing because he wanted to live with his maternal grandparents and visit Mother more often, rather than live with Father. The child wanted to attend high school where his grandparents live and see his friends regularly.
The six-month review hearing was held on August 4, 2017. Father, Mother and the child were present. The court first heard the section 388 petition. Mother testified as to the following: Despite being denied reunification services in January, she enrolled in a substance abuse program in April, tested negative for drugs, and attended AA and NA meetings. Mother completed two parenting programs and an anger management program, and was willing to participate in a domestic violence program. Mother had obtained employment and stayed at the homes of both her parents and her grandparents. The maternal grandparents had a room in their home for the child, and Mother stated she would either live in that home with the child or stay away from the home pursuant to the court's orders. Mother maintained daily phone contact with the child, visited with him often, and stated the two were very close. Mother was supportive of the child's relationship with Father and Father's family, but was concerned because the child said he did not want to move up to Bakersfield to live with Father. On cross-examination, mother stated she had previously engaged in reunification services, including drug treatment, in 2006. The court heard argument from the parties. The child's counsel joined in Mother's arguments. However, as the child's guardian ad litem, counsel submitted to the court as to whether placement with Mother would be in the child's best interest. The court commended Mother for her efforts at making changes in her life, but found changing circumstances rather than changed circumstances, and concluded that placement with Mother would not be in the child's best interest. Therefore, the court denied mother's section 388 petition.
Mother was "disenrolled" from the drug abuse program in July because, after she obtained employment, her Medi-Cal was canceled. However, she was working on re-enrolling. --------
The court then held the six-month status review hearing. After hearing argument from the parties, the court placed the child with Father on family maintenance and ordered a minimum of one weekend visit a month with Mother at the maternal grandparents' home. The court also authorized visits every other weekend with DPSS approval, overnight visits with DPSS approval, and on-demand drug testing for mother prior to visits.
This appeal followed.
DISCUSSION
1. Section 388 Petition
Mother first argues the court erred when it denied her section 388 petition. We disagree.
"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 evidence or changed circumstances exist and (2) the proposed change would promote the best interests 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.] Generally, the petitioner must show by a preponderance of the evidence that the child's welfare requires the modification sought. [Citation.]" (In re A.A. (2012) 203 Cal.App.4th 597, 611-612.)
" '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 J.T. (2014) 228 Cal.App.4th 953, 965.) " ' "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.' " ' (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.' " (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)
Here, the juvenile court reasonably concluded that, although Mother's circumstances were changing, they had not changed enough to warrant issuing new disposition orders. Mother's participation in services and sobriety was very recent versus her difficulties staying off drugs over the previous 10 years. Mother had enrolled in a drug treatment program on April 11, and had only three drug tests, each of which was negative. Mother's last drug test was June 26, 2017. Mother was not reachable for the jurisdiction and disposition hearing on January 12, and had by her own admission relapsed into drug use in the latter half of 2016. That was a maximum of four months of sobriety, after confirmed relapses in 2006, 2007 and 2016. "It is the nature of addiction that one must be 'clean' for a much longer period than 120 days to show real reform." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9.) In addition, Mother had not yet enrolled in a domestic violence program, despite that being a factor in both of the child's dependencies. The court did not abuse its discretion when it determined Mother had not established changed circumstances.
Given the above, we need not review the court's determination that granting the petition would not be in the child's best interest. We therefore conclude that the juvenile court did not err when it denied Mother's section 388 petition.
2. Placement With Father
Mother also argues the court erred when it placed the child with Father on family maintenance, because the evidence was overwhelming that the placement posed a substantial risk of detriment to the child.
At the six-month review hearing, the court must return the child to his or her parents' physical custody unless it finds, by a preponderance of the evidence, that return would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. (§ 366.21, subd. (e).) In evaluating detriment, the juvenile court must consider the extent to which the parent participated in reunification services and the efforts or progress the parent has made toward eliminating the conditions that led to out-of-home placement. (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400.)
The juvenile court's finding of substantial risk of detriment is reviewed for substantial evidence. (In re Yvonne W., supra, 165 Cal.App.4th at pp. 1400-1401.) In reviewing a finding for substantial evidence, the ultimate test is whether it is reasonable for the trier of fact to make the ruling in light of the whole record. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1394.)
Here, the evidence shows that, despite the child's distinct preference to live with his maternal grandparents and spend more time with Mother, the placement with Father was going well. At the time of the hearing, the child had been at Father's home on an extended visit for about six weeks. Father reported that the visit was going "great," The child got along with the other family members in the home, his mood was positive, Father and the child were getting to know each other, and the child was making some friends in the neighborhood. Father was cooperative in facilitating weekend visits between the child and Mother and his maternal grandparents at least once a month, often twice a month. Even the child acknowledged that, although he wanted to live with his maternal grandparents, he was doing "fine" at Father's home and was getting along with the other family members.
Mother argues that the danger of Father relapsing into drug use and domestic violence constitutes a substantial risk of detriment to the child. However, the record shows that Father had worked hard to complete the case plan for his younger son after Father's final release from custody in December 2015, and had reunified with him in July 2016. In addition, Father was steadily tackling one component at a time of his case plan for the child, at the same time he worked 12-hour days as a diesel mechanic. The social worker commented that Father appeared to have benefitted from the services in which he was participating. In contrast, when the child previously lived with his maternal grandparents, he did poorly in school because he did not have much help with homework, and in fact refused to attend school because he was being bullied. Our review of the record indicates substantial evidence supports the court's conclusion that Father had made significant progress in overcoming the problems that led to the removal of the child, and of Father's younger son, and therefore the court did not err when it placed the child in Father's care at the six-month review hearing.
DISPOSITION
The court's orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. SLOUGH
J.