Opinion
D077770
03-18-2021
In re Jason M., et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. R.N., Defendant and Appellant.
William Baker, Moreno & Associates, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, Patrice Plattner-Grainger and Lisa Maldonado, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J518626ABC) APPEAL from an order of the Superior Court of San Diego County, Rohanee Zapanta, Judge. Affirmed. William Baker, Moreno & Associates, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, Patrice Plattner-Grainger and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
R.N. (Mother) appeals a juvenile court order summarily denying her Welfare and Institutions Code section 388 petition as to her minor children, Jason M., K.M., and Carlos M. Her petition requested modification of a February 2014 order implementing a permanent plan of guardianship. She sought a new order returning the children to her custody, and now contends the court erred by denying her petition without an evidentiary hearing. The San Diego County Health and Human Services Agency (the Agency) maintains the court properly exercised its discretion. We agree with the Agency, and accordingly affirm the order.
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Juvenile dependency proceedings began in late February 2013 after Mother and her husband, the father of the two younger children (Father), were arrested by the Drug Enforcement Agency (DEA) for repeatedly transporting methamphetamine across the border. The children were in the vehicle during these trips. During a home raid, the DEA found methamphetamine in an uncle's room and a shed, along with drug paraphernalia in the shed. The Agency's petitions alleged the children were at substantial risk of serious harm due to the parents' transportation of drugs with them in the car and the drugs found in the home. The Agency further asserted that the children lacked support due to the parents' incarceration. At the time, Jason was six years old, K.M. was one, and Carlos was 11 days. The children were soon placed with paternal great-aunt Irma R. and her life partner Sandra M., who would eventually become their permanent guardians.
Jason's father is deceased, and Father is not a party to this appeal. We discuss them to the extent necessary.
The Agency reports addressed Mother's and Father's histories with substance abuse, as well as Mother's knowledge of the drug trafficking. Mother denied recent substance abuse, but admitted to using marijuana as a teenager. She also reported she previously lived with Jason's father, who was a "drug addict" and made her smoke crack cocaine while pregnant with Jason, but she left him before Jason was born. Her child welfare history included a 2006 referral alleging she was abusing drugs, but the disposition was inconclusive. The Agency found Mother "admit[ted] to prior issues with substance abuse and might benefit from substance abuse services." As for Father, he reported he used marijuana on and off and had used methamphetamine in the past, but claimed he had no current issues with drugs. He also denied substance abuse by Mother.
Mother initially told the social worker she did not know Father was transporting drugs; later admitted she did know, while denying awareness of the substance, quantity, or drugs in the home; and later still claimed she did not know and was "not in her right mind" when the children were removed. Meanwhile, Mother had admitted to the DEA that she suspected Father was transporting narcotics by the summer of 2012.
Mother reported that she was convicted and sentenced to five years for conspiracy with intent to distribute narcotics. Her case plan required her to demonstrate an ability to live free from drug dependency, including by drug testing as required and participating in substance abuse services like obtaining a sponsor and taking part in 12-step programming.
In February 2014, the juvenile court held a section 366.26 hearing and created a permanent plan of guardianship with Irma and Sandra. The Agency's section 366.26 report reflected that they were committed to caring for the children through maturity if needed, they could provide for them, and the younger children viewed them as their mothers. The court ordered reasonable visitation to be determined by the guardians and terminated dependency jurisdiction.
In December 2016, Mother was released on probation to a residential reentry facility. That same month, she filed the first in a series of section 388 petitions. In it she sought to terminate the guardianship, explaining that she wanted to start with visitation and citing her release, employment, and claimed attendance at parenting classes and NA/AA meetings. The record does not reflect that she attached evidence of this attendance. The Agency provided an addendum report, which noted that Mother planned to live with Father after his release from prison. It recommended the guardianship remain in place with supervised visits. At a January 2017 hearing, Mother withdrew the petition, agreeing that visitation was the issue she wanted to address. The juvenile court reopened jurisdiction, modified the plan to provide for at least weekly visits and liberal phone visitation, and terminated jurisdiction again.
In October 2019, Mother filed her second section 388 petition, stating the parents wanted custody and contending they were working, would have a home in March 2020, and wanted to begin a new chapter with the children. The juvenile court denied the request, indicating there was no evidence that the outstanding substance abuse issues had been addressed.
In May 2020, Mother filed her third section 388 petition, again seeking custody. As to changed circumstances, she claimed she had been released from prison, was working full time, and was fixing up a home for the children. As to the children's best interests, she asserted that children "deserve to be with their family" and they "need to see the love of their mother daily." She provided exhibits, including the parents' lease; photographs of the home and family; letters; course certificates; tax filing summaries; and probation documents, including a narcotic offender form. One of the letters was from Mother to an attorney in December 2019, and stated the classes "I (we)" took in prison included "drug abuse (we didn't use)." The certificates reflected Mother took a relapse prevention course in May 2014, while Father completed relapse prevention, drug education, and residential drug abuse treatment. The court denied the request, again stating there was no evidence the substance abuse issues had been addressed.
Finally, in June 2020, Mother filed the current section 388 petition. She used substantially the same arguments and exhibits as in her May 2020 petition, with the addition of a personal letter. In the letter, she acknowledged her prior petition was denied due to the lack of evidence that substance abuse issues were addressed. She stated she took classes to help "get [her] life back on track," including relapse prevention. She also stated, "I have no issues with substance abuse . . . ." She explained she "was not arrested for using narcotics, so [she] was never asked to do any urine tests"; after her release, she "asked if [she] had to do any other substance abuse classes or follow ups and they said no"; and, since then, she has "stayed away from all illegal activity and . . . been in contact with [her] probation officer."
At the hearing on the petition, the juvenile court observed that Mother's previous two petitions were denied for the same reason—namely, lack of evidence that she addressed substance abuse. The court found she provided the same documents again, plus her personal letter. It concluded there was no prima facie case and denied the petition, stating: "There are no changed circumstances. At least no evidence of that at this time. Nor is there any indication that the substance abuse issues have been addressed. No outside evidence to support that. So the motion is denied." The court's written orders likewise denied the petitions based on a lack of changed circumstances.
DISCUSSION
Mother's sole argument on appeal is that the juvenile court abused its discretion by concluding there were no changed circumstances and denying her petition without an evidentiary hearing. A. Legal Principles
Under section 388, a party may petition the court to change, modify, or set aside any previously made order, including orders for guardianship. The petitioner must show (1) there are changed circumstances or new evidence since the previous order, and (2) the proposed change would serve the child's best interests. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) A parent's section 388 petition to terminate a guardianship is a request to change a child's placement, and preponderance of the evidence is the applicable burden of proof. (In re Michael D. (1996) 51 Cal.App.4th 1074, 1086-1087.) Although a section 388 petition is "liberally construed in favor of its sufficiency" (In re Angel B. (2002) 97 Cal.App.4th 454, 461), once reunification services are terminated the focus is on the child's need for " 'permanency and stability.' " (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).)
If the petitioner makes a prima facie showing that the required elements are satisfied, she is entitled to an evidentiary hearing. (§ 388, subd. (d); In re Hunter W. (2011) 200 Cal.App.4th 1454, 1463.) However, " '[i]f the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition.' " (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445 (Daniel C.); see Cal. Rules of Court, rule 5.570(d).) The prima facie requirement is " 'not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition.' " (Daniel C., at p. 1445.) In deciding whether a prima facie showing has been made, the court " 'may consider the entire factual and procedural history of the case.' " (In re Mickel O. (2011) 197 Cal.App.4th 586, 616.)
We review an order denying a section 388 petition without a hearing under an abuse of discretion standard. (In re G.B. (2014) 227 Cal.App.4th 1147, 1158; see Stephanie M., supra, 7 Cal.4th at pp. 318-319 [" ' "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." ' "].) B. Analysis
There is no material dispute that Mother was out of prison, was working or making efforts to work, and had suitable housing, all of which reflected commendable efforts to be a productive member of the community. But the juvenile court's concern was that there was no evidence she had addressed her substance abuse issues. This concern was well-founded.
The children were removed after the DEA arrested the parents for methamphetamine trafficking, a serious drug-related crime, and found drugs in the home. Mother admitted to prior issues with substance abuse; she had reported using marijuana as a teenager and crack cocaine while pregnant with Jason (allegedly under duress). The Agency understandably felt she could benefit from services. Accordingly, her case plan required her to show she could remain drug-free and to pursue substance abuse services, including getting a sponsor and taking part in a 12-step program. There is little evidence she did so, other than her certificate for completing relapse prevention in 2014 and her claim in the withdrawn 2016 petition that she attended NA/AA meetings, for which she provided no evidence. If anything, it appears she did not address the problem because she did not believe she had one, as reflected in her 2019 letter to an attorney stating "we didn't use" and her 2020 personal letter denying a substance abuse issue—as well as her arguments here, which we discuss post. (See In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 ["One cannot correct a problem one fails to acknowledge"]; In re E.E. (2020) 49 Cal.App.5th 195, 214-215 [concerns regarding mother's drug use were supported by her resistance to services, among other things].)
Mother also appeared to lack insight into the risks associated with drugs generally, given her equivocation over her knowledge of Father's drug trafficking and her plan to resume living with him despite his past drug use. (Cf. In re J.C. (2014) 233 Cal.App.4th 1, 5 [affirming jurisdiction as to father based on failure to protect child from mother's drug abuse].) Evidence in the record—including their lease—suggests they did proceed to live together, but Mother's petition did not discuss Father's current drug use status. Even if Mother herself had confronted her personal substance abuse issues, her failure to address the documented drug problems of a spouse, cohabitant, and coparent is glaring. On this record, the juvenile court was well within the bounds of reason in concluding Mother had not demonstrated changed circumstances.
And this was at least Mother's second relationship with a drug user, after her time with Jason's father.
Mother's arguments to the contrary are unavailing. First, she disputes substance abuse is a part of this case, contending "no one is alleging [she] used controlled substances," other than when she was supposedly forced to use crack cocaine by Jason's father around 2006, and the children were not removed because she was an addict. She mischaracterizes the record and misconstrues her burden here. The record reflects she also used marijuana, was referred for potential substance abuse in 2006, and even admitted to prior issues with substance abuse. Further, she minimizes her crack cocaine use while pregnant with Jason; whatever the circumstances, she put her child at serious risk of harm. (See In re Christopher R. (2014) 225 Cal.App.4th 1210, 1217 [mother's use of cocaine and other drugs while pregnant "unquestionably endanger[ed] the health and safety of her unborn child"].) Additionally, as noted, Mother's relationship with Father—which produced two more children—was also closely connected to drugs. Father was a drug trafficker, a drug user, and there were drugs in the home when they were arrested. The fact that the children were removed because of drug trafficking did not render substance abuse irrelevant. In any event, Mother's burden at this stage was to show changed circumstances, including that she had addressed substance abuse; it could not be satisfied by belatedly denying it was a problem.
Second, Mother contends she did address substance abuse, explaining the prison and probation authorities did not require her to have treatment or take drug tests, the criminal justice system is "designed to grapple with address[ing] substance abuse issues," and she "came out . . . clean." But the issue here is whether she satisfied the concerns of the dependency system, not the requirements of the criminal justice one. She previously seemed to recognize something more might be required, as she claimed in her initial, withdrawn petition that she attended NA/AA meetings; she just did not provide proof that she did so. Further, the juvenile court's denial of her second and third petitions should have alerted her that substance abuse remained an issue, regardless of her probation conditions. If it was truly her position that her substance abuse issues had been addressed, an assessment to that effect by a qualified substance abuse or mental health professional would be required.
Third, Mother argues the juvenile court "ignored a wealth of changed circumstances in this case," and "did not explain" how they did not constitute changed circumstances. She lists changes unrelated to substance abuse (or, in some cases, to her), including that she and Father were both out of prison, employed, and had a nice home for the children; she had contact with them and "was a good mother"; and she was remorseful. Absent evidence to the contrary, we presume the juvenile court regularly performed its official duty and considered these facts to the extent relevant. (Evid. Code, § 664; see In re Julian R. (2009) 47 Cal.4th 487, 498-499.) The court nonetheless found she failed to establish changed circumstances because there was no evidence she addressed substance abuse, which was within its discretion for the reasons discussed above. Mother also identifies no authority requiring the court to comment on matters not dispositive to its determination. (Cf. In re Corienna G. (1989) 213 Cal.App.3d 73, 83-84 [declining to remand for express finding, where substantial evidence "amply" supported implied finding].)
Finally, Mother contends "[t]he combination of these changed circumstances merited at least an evidentiary hearing," in order to "explore the possibility of putting the family back together." Viewing her arguments collectively does not compel a different result on changed circumstances. Even if it did, she would still have to show that reunification was in the children's best interests. The juvenile court did not need to reach the issue, and Mother did not address it in her briefing here, forfeiting any argument in this regard. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) Moreover, while we appreciate her sincere belief that "[c]hildren deserve to be with their family [and] need to see the love of their mother daily," something more than this kind of aspirational assertion would be required to disturb the children's permanency and stability with their guardians of seven years. (See Stephanie M., supra, 7 Cal.4th at p. 317.) Indeed, it has been the younger children's home for nearly their entire lives.
We conclude the juvenile court did not abuse its discretion in denying Mother's section 388 petition without an evidentiary hearing.
DISPOSITION
The order is affirmed.
DATO, J. WE CONCUR: HUFFMAN, Acting P. J. HALLER, J.