Opinion
D073985
08-20-2018
In re CHEYENNE B., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. ELIZABETH R., Defendant and Appellant.
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E Philips, Chief Deputy County Counsel and Georgia Gebhardt, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SJ11667G) APPEAL from an order of the Superior Court of San Diego County, Ana L. Espana, Judge. Affirmed. Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E Philips, Chief Deputy County Counsel and Georgia Gebhardt, Deputy County Counsel, for Plaintiff and Respondent.
Elizabeth R. (Mother) contends the juvenile court erred by denying a hearing on her Welfare and Institutions Code section 388 petition because she met her prima facie burden of establishing changed circumstances and best interests of the minor. We disagree and affirm the dependency court's order.
All further statutory references are to the Welfare and Institutions Code.
BACKGROUND AND HISTORY
In April 2016, the San Diego County Health and Human Services Agency (Agency) received three referrals regarding three-year-old Cheyenne B. and her six-year-old brother, who were homeless and living with their parents. One referral described Mother punching Father in the face and alleged the parents used methamphetamines around the children. The report also alleged syringes, dirty diapers, and garbage were near the children's tent. Another referral reported the children were seen in the streets, unsupervised by adults, and Cheyenne was barefoot and wearing only a soiled diaper. A third report stated the family lived in a tent with an adult male who had an extensive narcotics history, and the adults were using drugs in the tent where the children slept. The referral described the children as filthy with matted hair and no shoes, and with no access to food or water at the tent. Officer M. Martin, a San Diego police officer, reported the police department received multiple calls daily expressing concern about the children playing in the streets. Officer Martin had personal contact with the family and described the children as filthy, with dirt over their bodies.
Cheyenne's brother is not the subject of this appeal.
When the Agency investigated, it learned Mother had seven biological children. At the time of these referrals, the Agency had received 62 referrals, identifying concerns of domestic violence, mental health, physical abuse, and lack of supervision. When the social worker interviewed the parents, they denied drug use or domestic violence; the father reported being sober for six years. Cheyenne's brother reported his parents smoked marijuana in the tent and said his father hit his mother on the face and choked her when they fought.
Four of the seven children were previously adopted and one was in a supportive transition case, having never reunified with Mother.
The Agency filed a section 300 petition on April 12, 2016, alleging Cheyenne was not provided a suitable home, shelter, or place of abode. At the April 13, 2016 detention hearing, the court found Cheyenne to be a person described by section 300, subdivision (b)(1) and determined removal was necessary. It ordered liberal and supervised visitation and voluntary service referrals for Mother.
The May 4 jurisdiction and disposition report stated Mother tested positive for amphetamines and was chronically homeless. The initial case plan expressed concern Mother would continue using drugs, living in an unsafe and dirty environment, failing to meet the hygiene needs of her children, and would leave the children unsupervised. The Agency reported in its May 26 addendum that Father admitted he and Mother sometimes physically fought in front of the children. Mother told the social worker she had broken up with Father May 3, 2016. Though Mother said she was on the waiting list for a residential substance abuse treatment program, KIVA and had been calling every day, the substance abuse specialist from KIVA reported Mother had missed her intake appointment. The social worker described Mother's progress as minimal.
At the jurisdiction hearing May 26, the court proceeded with a document trial regarding jurisdiction and made a true finding on the section 300 petition by clear and convincing evidence.
The minute order labels this hearing a settlement conference. However, the record reflects that the court proceeded with the jurisdictional hearing at this time and set the disposition hearing for a future date. --------
The Agency's July 12 addendum report stated Mother had been drug free for three weeks but had not been attending any drug treatment programs. Mother reported she was scheduled to start parenting classes June 30. Mother had been visiting weekly with Cheyenne. At the corresponding disposition hearing, which was held July 20, the court ordered Cheyenne's continued placement in a licensed foster home. The court stated the case plan was appropriate, and Mother's progress toward alleviating the causes that led to Cheyenne's removal had not been substantial.
The January 2017 status review report for the six-month hearing disclosed Mother had been residing at KIVA since late July 2016. There, she attended group sessions focused on parenting, professional development, relapse prevention, and addiction. Mother completed random drug tests in November and December, and they were all negative. She continued living at KIVA, though she had completed the program, because she had not secured transitional housing. She continued visiting Cheyenne weekly.
At the six-month review hearing held February 24, 2017, the Agency recommended reunification services continue to the 12-month date. The court found there was a substantial probability Cheyenne would be returned to Mother's physical custody within the extended period, but also informed Mother that should that not happen, a section 366.26 hearing would be scheduled to state a permanent plan for Cheyenne. The court determined Mother's progress toward alleviating the causes that necessitated removal was moderate.
In May 2017, the Agency submitted a status review report stating Mother had been residing at the Family Recovery Center since February 2017. While living there, her February 8 drug test came back positive for alcohol. Mother's other drug tests came back negative. The Family Recovery Center placed Mother on "reflection status" because she deviated from the program by leaving to attend unscheduled visits. She was attending weekly therapy sessions, visiting weekly with Cheyenne, and talking weekly to Cheyenne on the phone. Sometimes during the visits, Mother struggled with directing and managing Cheyenne's behaviors.
At this point, Cheyenne had been residing in the same foster home since February 5, 2017. Cheyenne's court-appointed special advocate (CASA) reported Cheyenne had formed a close relationship almost immediately with her foster parents, displayed love and affection for them, and referred to them as "Mom" and "Dad."
At the 12-month review hearing June 19, 2017, the court found by clear and convincing evidence reasonable services had been provided to Mother. The court found Mother had consistently and regularly contacted and visited with Cheyenne, made progress toward resolving the problems that led to Cheyenne's removal, and showed the capacity and ability to complete the treatment plan and to provide for Cheyenne's safety, protection, physical and emotional well-being and special needs. The court found there was a substantial probability Cheyenne would be returned to Mother by the 18-month date. The court also informed Mother that if Cheyenne could not be returned to Mother by the 18-month date, it might set a section 366.26 hearing. The court concluded Mother's progress had been moderate.
In the October 11, 2017, 18-month status review report, the Agency reported Mother left the Family Recovery Center in June 2017 before completing the program. Mother reported living with a friend, but she was not willing to provide an address or additional information about her whereabouts, other than that she could not stay long term. Mother told the social worker she was unemployed. The social worker asked Mother to find a sponsor and continue attending NA meetings. Mother's visitations with Cheyenne had become inconsistent beginning in August 2017, and the visitation center closed the file because Mother had missed at least three consecutive visits. Mother also missed her weekly calls with Cheyenne throughout the reporting period. By October, the Agency had lost contact with Mother.
Cheyenne appeared well-adjusted in her foster home and demonstrated positive attachment with her foster parents. The CASA reported Cheyenne appeared to be close to them and feel secure with them. Cheyenne was receiving therapy to address anxiety, nightmares, and irritability, which the Agency attributed to changes in routine and inconsistent contact with her parents. The CASA expressed concern about the effect Mother's missed visitations was having on Cheyenne.
The social worker spoke with Mother October 11, 2017, and Mother reported she was staying at St. Vincent de Paul, a homeless shelter and services organization, on the singles side. Mother said she had been attending NA meetings, but did not provide any sign-in sheets. The social worker arranged a visit between Mother and Cheyenne for October 18, but Mother did not show. As of November 14, 2017, Mother's contact with the Agency was inconsistent, and her living situation was unstable. The Agency opined Mother was not able to provide safe housing, food, or other basic needs for her children.
At the 18-month review hearing on December 1, the court found Mother had failed to complete her substance abuse treatment or to comply with drug testing because she left the residential treatment program in June 2017. While the reports indicated Mother was attending NA meetings, there was no proof she actually had been doing so. The court found Mother's visits had not been regular or consistent, and returning Cheyenne to her mother would create a substantial risk of detriment to Cheyenne's safety and well-being. The court terminated Mother's reunification services and set the matter for a section 366.26 hearing.
In late January 2018, Mother asked for visitation with Cheyenne. To arrange for visitation, the social worker attempted contact with Mother to arrange for visitation on January 24, January 27, February 5, February 7, and February 9, and voicemail messages were left but not returned. On February 23, Mother's attorney requested visitation for Mother. Cheyenne had an appointment during the time requested, so the social worker scheduled a visitation for March 7, 2018 and asked Mother to confirm the meeting. Mother did not confirm the meeting, and the visit was canceled. Mother had not contacted the social worker again as of March 14, 2018.
In its section 366.26 report, the Agency recommended termination of parental rights and a permanent plan of adoption for Cheyenne. It reported Cheyenne had stabilized in her current home and was doing well in school. It noted she looked to her caregivers for comfort and called them "Mom" and "Dad."
Mother filed a section 388 petition on May 9, 2018, the date set for the section 366.26 hearing. Attached to her petition, Mother included group meeting sign-in sheets demonstrating attendance at NA meetings regularly between December 5, 2017 and March 14, 2018. She also provided a certificate of completion for a 12-week addiction education course and a "Leap to Confidence" course, which she completed December 13, 2017. She included a long-term lease agreement for a one-bedroom residence, which she signed the Friday before the hearing. Mother's attorney argued she was seeking a change of the court's dispositional order from July 20, 2016, and so the changed circumstances should be compared to the circumstances of that date.
The court reviewed the evidence presented and noted Mother had been asked to find a sponsor and continue NA meetings, but Mother had not provided that information to the Agency. Mother had missed visits with Cheyenne after reunification services were terminated, and the visitations continued to be inconsistent, though they had become more consistent since April. The court acknowledged she had obtained housing, which was one of the things she needed to do. While the court said circumstances were changing, it also said they had not yet changed and concluded Mother had not met her prima facie burden, even considering all of the time from the beginning of the case. The court denied Mother's request for a hearing.
The same day the court considered the section 388 petition, it held the contested section 366.26 hearing and ordered adoption as the permanent plan. Mother timely appealed the court's order refusing to set a hearing on the section 388 petition.
DISCUSSION
Mother contends the court erred by refusing to grant her a hearing on the section 388 petition, which she argues made a prima facie case justifying Cheyenne's placement with her. We disagree.
A parent may petition the court for a hearing to change, modify, or set aside a previous order if the parent has new evidence or a change of circumstances. (§ 388, subd. (a)(1), Cal. Rules of Court, rule 5.570(e)(1); In re S.R. (2009) 173 Cal.App.4th 864, 870.) To trigger the hearing, the section 388 petition must make a prima facie showing that the circumstance has changed and the requested modification is in the child's best interests. (§ 388, subd. (d); In re Marilyn H. (1993) 5 Cal.4th 295, 310.)
Section 388 petitions are liberally construed for sufficiency. (Cal. Rules of Court, rule 5.570(a).) The prima facie burden is met if "the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806 (Zachary G.); In re Anthony W. (2001) 87 Cal.App.4th 246, 250 (Anthony W.) [if liberally construed petition allegations do not show changed circumstances to promote child's best interests, no need for hearing].) There must be a prima facie showing of both elements: the changed circumstance and promotion of the child's best interests. (In re J.C. (2014) 226 Cal.App.4th 503, 525 (J.C.); Zachary G., supra, 77 Cal.App.4th at p. 806.)
The timing of the petition may also influence the dependency court's evaluation. "[A]fter reunification efforts have terminated, the court's focus shifts from family reunification toward promoting the child's needs for permanency and stability." (In re J.C., supra, 226 Cal.App.4th at p. 527.) "A court hearing a motion for a change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child." (Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) Thus, when a court considers a section 388 petition immediately before a section 366.26 hearing, "[t]he parent's interest in having an opportunity to reunify with the child is balanced against the child's need for a stable, permanent home." (In re Marilyn H., supra, 5 Cal.4th at p. 309.) Moreover, the court considers the new evidence in the context of the broader factual history of the case. (See Zachary G., supra, 77 Cal.App.4th at p. 806.)
"We review the juvenile court's summary denial of a section 388 petition for abuse of discretion." (Anthony W., supra, 87 Cal.App.4th at p. 250, citing In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413.) An abuse of discretion occurs when the dependency court applies an incorrect legal standard or its decision exceeds the bounds of reason. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.) An order that is unsupported by the evidence is an abuse of discretion. (Id. at p. 319.)
Mother contends she was entitled to a full hearing on the petition because it demonstrated a change in circumstances and was in Cheyenne's best interests. The dependency court did not abuse its discretion by concluding Mother did not meet her prima facie burden.
Mother's evidence of a change in circumstance included NA attendance sign-in sheets between December 2017 and mid-March 2018 and a long-term lease agreement. She also attached a certificate showing she completed a 12-week addiction course. However, during this same period, Mother tested positive for alcohol. Additionally, the records of participation in substance abuse treatment and support following December 2017 indicated inconsistency because she was placed on "reflection status" for not following the program at the Family Recovery Center and because she did not supply information about NA participation after March 14, 2018.
While providing a home was necessary to demonstrate she could provide a safe living environment for Cheyenne, it was not the only concern. The Agency had asked Mother to get a sponsor and attend NA. Even though Mother found long-term housing, the evidence before the court also showed a few weeks of participation in NA, a lapse in sobriety, and Mother leaving the Family Recovery Center before completing the program. Thus, we cannot say it was an abuse of the court's discretion to conclude Mother had not met her prima facie burden of demonstrating a change in circumstance.
Mother cites In re Hashem H. (1996) 45 Cal.App.4th 1791 (Hashem) and J.C., supra, 226 Cal.App.4th 523 as examples where the prima facie burden was met. While there are some similarities between Mother's situation and the situations in Hashem and J.C., they are not significant enough to conclude the court's decision here was unreasonable.
In Hashem, the issue was whether the mother's ongoing therapy, in addition to a steady job and evidence of her ability to provide for her child, showed a change in circumstance justifying custody or a 60-day visit. (Hashem, supra, 45 Cal.App.4th at pp. 1797, 1799.) The appellate court identified the change in circumstance as the mother's "continuous participation in individual therapy for more than 18 months which was so successful that her therapist recommended Hashem be returned to her custody," along with her regular and consistent visitation, participation in conjoint counseling with her son, her stable employment, and her ability to provide a home. (Id. at p. 1799.)
In J.C., the appellate court spent little time addressing the changed circumstance prong, noting the mother had completed parenting classes and maintained sobriety for over a year. (J.C., supra, 226 Cal.App.4th at pp. 520, 523.) While the mother had missed some visits, she was not absent from her child's life for months, and she engaged in unmonitored visits. (Id. at p. 519.)
Mother's situation here is different from the mothers in Hashem and J.C. because the petition did not provide evidence of her ability to provide for Cheyenne beyond having a lease, did not offer evidence of stability and consistency in visitation, and did not address concerns about her sobriety.
The court also did not abuse its discretion in concluding Mother did not meet her prima facie burden on the second prong because the petition did not show returning Cheyenne to her mother was in Cheyenne's best interests.
Mother relies on in re Aljamie D. (2000) 84 Cal.App.4th 424 for the proposition that she need only show probable cause to justify a hearing, not probability of success. (Id. at pp. 432-433.) She emphasizes the long-term lease agreement she entered the Friday before the hearing is evidence she was prepared to provide a home for Cheyenne, as well as some evidence of sobriety. However, the petition did not offer any evidence Mother had a job or plan for providing food, clothing, or paying the rent so she could provide for Cheyenne's safety, protection, and needs, as was required by her plan.
Moreover, Mother had not been consistent in her visitation since August 2017. Between September 2017 and the date of the hearing eight months later, Mother rarely saw Cheyenne, and even when the Agency arranged visitation for Mother, Mother did not always show up. The inconsistent visitation had negatively impacted Cheyenne, causing anxiety and nightmares. Though Mother argues she was closely bonded to Cheyenne, the evidence showed Cheyenne felt attached to her foster parents, for whom she had love and affection and whom she referred to as "Mom" and "Dad."
At this point in the proceedings, Cheyenne's best interests was the court's proper focus. (Stephanie M., supra, 7 Cal.4th at p. 317.) It was not an error to conclude the petition, even liberally construed, demonstrated Cheyenne's best interests would not be met by removal from her foster parents and placement with Mother.
DISPOSITION
The order is affirmed.
BENKE, Acting P. J. WE CONCUR: DATO, J. GUERRERO, J.