California Court of Appeal Sep 19, 2014 No. D065567Unpublished
Filed 9/19/14 In re Ethan G. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re ETHAN G. et al., Persons Coming Under the Juvenile Court Law. D065567 IMPERIAL COUNTY DEPARTMENT OF SOCIAL SERVICES, (Super. Ct. No. JJP2768) Plaintiff and Respondent,
v.
ADRIANA R.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Imperial County, Christopher
Yeager, Judge. Affirmed.
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant
and Appellant.
Michael L. Rood, County Counsel, Geoffrey P. Holbrook, Senior County Counsel
and Rosario Gonzalez, Deputy County Counsel, for Plaintiff and Respondent.
Adriana R. appeals the juvenile court's denial of her petition under Welfare and
Institutions Code1 section 388 to modify a prior order that terminated her reunification
services and set a selection and implementation hearing under section 366.26. She
contends that the juvenile court abused its discretion in finding that she failed to establish
changed circumstances or that modifying the prior order would be in her children's best
Adriana gave birth to twin boys, Ethan G. and Bradley G. in February 2013.
She tested positive for methadone, amphetamine, and opiates. One of the infants tested
positive for amphetamine, and both showed signs of withdrawal and had difficulty
feeding. They were transferred to the neonatal intensive care unit.
The Imperial County Department of Social Services (Department) received a
referral regarding the infants on February 6. A Department social worker interviewed
Adriana and Eric G., the infants' presumed father.2 Adriana, who was 24 years old at the
time, disclosed her substance abuse history, which included using heroin since age 15.
She admitted using methamphetamine before giving birth to the twins. Adriana and Eric
had been homeless until December 2012, when they moved into Adriana's mother's
apartment, where they planned to share a bedroom with their children. Both parents
1 All statutory references are to the Welfare and Institutions Code.
2 Eric is not a party to this appeal. We discuss him only as relevant to Adriana's appeal. 2
stated that they would enroll in substance abuse treatment and they had an appointment to
begin parenting classes.
The hospital released the children to the parents on February 23. Both parents
reviewed and signed a safety plan that the Department had provided to address the
parents' substance abuse.
A Department social worker visited the family's apartment on February 26, but no
one was home. Adriana later called the social worker to explain that they had been at a
doctor appointment and would be available the following day. The Department requested
that law enforcement officials perform a welfare check on the family. Special agents
from the Imperial Valley Street Interdiction Team visited the apartment and found that
both parents were under the influence of a controlled substance. The agents found drug
paraphernalia—syringes, a heroin cooker, and foil that was used to smoke heroin—in the
bedroom that the parents shared with the children. The parents were arrested and the
children were taken into protective custody.
On March 1, 2013, the Department filed a petition that alleged under section 300,
subdivision (b) that the children were dependents within the jurisdiction of the juvenile
court based on the risk of serious physical harm as a result of the parents' failure or
inability to supervise or protect the children. Adriana appeared at the March 4 detention
hearing, submitted on the Department's report, and requested visitation and evaluation of
relatives for placement. The court made a prima facie finding on the petition and ordered
that (1) the children's detention continue, (2) the parents receive reunification services,
3
and (3) the parents submit to random drug testing. The children were placed with their
paternal grandparents the following day.
Adriana was released from custody on March 20, 2013, on the condition that she
enroll in Imperial Valley Ministries, an inpatient treatment program. Although Adriana
stated that she intended to enroll, she left the program within 30 minutes of her arrival.
She advised the Department that she and Eric intended to enroll in an inpatient drug
treatment program in San Diego County that was not among those recommended by the
Department. Adriana told the Department that she did not have any contact information
for the center, but later provided an address for what turned out to be a halfway house.
Adriana subsequently admitted that she left the halfway house every day to use drugs,
returning in the evening. Adriana ignored the Department's attempts to contact her, and a
bench warrant for her arrest ultimately issued.
At the April 10, 2013 disposition hearing, the juvenile court ordered that
reunification services be provided to Adriana for six months, and set a six-month review
hearing for October 2013.
Adriana was arrested on May 6 on one or more charges each of grand theft,
receiving stolen property, possession of a controlled substance, probation violations,
nonsufficient funds checks, and retaking goods from an officer. Eric was also arrested on
charges of grand theft, conspiracy, vandalism, and possession of stolen property.
At the six-month review hearing on October 16, 2013, the Department
recommended that the court terminate reunification services and place the children with
the paternal grandparents. Adriana did not object to the report and offered no affirmative
4
evidence of her own. However, her counsel asked the court not to follow the
Department's recommendation because, although Adriana admittedly "has done little"
towards compliance with the court-ordered reunification services, "she has put some
effort into it." Specifically, while incarcerated, Adriana completed the Volunteers of
America's Breaking Free Program. The court commented that although this was
"[p]erhaps . . . a sign of continued progress," the parents had "not availed themselves of
services prior to entry into the jail setting, and so the [Department's] recommendation
appears to be appropriate." The court terminated reunification services and set a
selection and implementation hearing under section 366.26 for February 9, 2014.
In its section 366.26 report, the Department recommended that the court terminate
Adriana's parental rights, find the children adoptable, and order a permanent plan of
adoption with the paternal grandparents. The report stated that during Adriana's first visit
with the boys, she was awkward in her interaction with them and required direction to
interact positively with them. She appeared more at ease toward the end of that visit.
Ethan cried the entire duration of Adriana's second visit. Adriana did well during the
third visit, and Ethan did a little better.
On February 4, 2014, the day before the section 366.26 hearing, Adriana filed a
petition under section 388 arguing that changed circumstances warranted the court's
modification of its October 16, 2013 order terminating reunification services and setting
the section 366.26 hearing. As changed circumstances, the petition cited Adriana's
November 11, 2013 enrollment at the North County Serenity House treatment program
(Serenity House), her attendance at parenting and anger management classes, and
5
negative drug test results. The court continued the section 366.26 hearing to March 3,
2014 and set the section 388 petition to be heard the same day.
At the combined section 366.26 and section 388 hearing, the court admitted in
evidence the Department's section 388 report. The report commended Adriana for her
accomplishments, but argued that her circumstances had not changed, but rather, were
merely changing, because Adriana had achieved the changes only in a court-imposed,
controlled environment and on an inpatient basis. The report also argued that
modification was not in the children's best interests because Adriana "does not
demonstrate a strong bond with the children during visitation."
Adriana testified at the hearing. She said that she expected to graduate from
Serenity House in April and planned to return to the Imperial Valley to find a job and
continue her drug treatment on an outpatient basis while living with her mother. In the
meantime, Adriana said that Serenity House would allow the children to live with her
there. Adriana testified that the children had visited her four times at Serenity House and
that the visits, which were supervised by the paternal grandmother, had been "[g]ood."
A Department social worker testified that the children cried frequently during
Adriana's visits. In fact, during the most recent visit at a McDonald's restaurant in
February, Adriana terminated the visit and returned the children to the paternal
grandmother because they "kept on crying." This led the social worker to testify that
"[i]n this case 'ordinary' is that the children don't know their mother."
The juvenile court commended Adriana for her progress, but found that she had
not demonstrated a significant change in circumstances or that it would be in the
6
children's best interests to grant the section 388 petition. The court terminated the
parents' parental rights, found the children adoptable, selected adoption as the permanent
plan of placement, and designated the paternal grandparents the prospective adoptive
parents.
Adriana timely appealed.
DISCUSSION
I.
Adriana contends that the juvenile court erred by denying her section 388 petition
because she established changed circumstances and that granting the petition would be in
the children's best interests.
A. Legal Framework
"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." (In re A.A. (2012) 203 Cal.App.4th 597, 611 (A.A.).) "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." (Id. at pp. 611-612.) The fact that
the parent "makes relatively last-minute (albeit genuine) changes" does not automatically
tip the scale in the parent's favor. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 530.)
A petition under section 388 "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." (A.A., supra, 203 Cal.App.4th at p. 612.) Exercises of discretion must be
7
" 'grounded in reasoned judgment and guided by legal principles and policies appropriate
to the particular matter at issue.' " (People v. Superior Court (Alvarez) (1997) 14 Cal.4th
968, 977.) The standard "asks in substance whether the ruling in question 'falls outside
the bounds of reason' under the applicable law and the relevant facts." (People v.
Williams (1998) 17 Cal.4th 148, 162.)
B. Analysis
Adriana argues that she established changed circumstances because she had
enrolled at Serenity House, attended parenting and anger management classes, and tested
clean for drugs. The juvenile court found that these amounted only to changing, not
changed, circumstances.3 There was no abuse of discretion in that finding. Adriana had
a nine-year history of substance abuse and a number of previous failed efforts at
treatment, and had attained only three months' sobriety in a structured, inpatient setting.
Courts have routinely concluded that similar circumstances do not constitute changed
circumstances for purposes of a section 388 petition. (See, e.g., In re Cliffton B. (2000)
81 Cal.App.4th 415, 423 [" 'It is the nature of addiction that one must be "clean" for a
much longer period than 120 days to show real reform.' "], quoting In re Kimberly F.,
supra, 56 Cal.App.4th at p. 531, fn. 9; In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081
[parents' three-month rehabilitation efforts were insufficient in light of "extensive
histories of drug use and years of failing to reunify with their children."]; In re Mary G.
(2007) 151 Cal.App.4th 184, 205-206 [mother being clean for four months was
3 Adriana acknowledges in her opening brief that "she was successfully addressing"—not that she "had successfully addressed"—"the issues of addiction, which had caused the removal of her children." (Italics added.) 8
insufficient in light of 23-year substance abuse history]; In re Amber M. (2002) 103
Cal.App.4th 681, 686 [mother being clean for 372 days was insufficient in light of her
17-year substance abuse history and two previous relapses]; In re Casey D. (1999) 70
Cal.App.4th 38, 48-49 [juvenile court did not abuse its discretion in finding no changed
circumstances based on "the parents' extensive drug histories; pattern of maintaining drug
treatment only when motivated by the desire to reunify the family and required by outside
agencies; and Casey's young age[, which] meant that she was too young to be able to
protect herself if the parents should relapse"].) We therefore conclude that the juvenile
court did not abuse its discretion in finding that Adriana did not show changed
circumstances.
Even if Adriana had established changed circumstances, there was no abuse of
discretion in the juvenile court's finding that granting the section 388 petition would not
be in the children's best interests. Adriana's only argument in this regard is that although
the Department "assessed the grandparents to be in good emotional and psychological
health," it "did not state the couple was in good physical health." This argument fails for
several reasons. First, it is contradicted by the record on appeal. The Department's
section 366.26 report specifically states that the paternal grandparents "[b]oth are in good
physical emotional and psychological health." (Italics added.) Adriana does not
explain—nor did she ever raise with the juvenile court—how the paternal grandmother's
cancer being in remission requires a different conclusion. Second, Adriana's own
testimony at the section 388 hearing demonstrates that her children were bonded with the
9
paternal grandparents to the point that it would not be in the children's best interests to
grant the petition:
"Q. You understand that Ethan and Bradley have been with your mother[-] and father-in-law for, really, their entire life [sic].
"A. Yes.
"Q. And that Ethan and Bradley look to your mother- and father- in-law for food and shelter.
"A. Yes.
"Q. And they look to them for their affection.
"A. Yes.
"Q. And to Ethan and Bradley, they consider your mother- and father-in-law their parents.
"A. Yes."
We conclude that the juvenile court did not abuse its discretion in finding that
granting Adriana's section 388 petition would not be in the children's best interests.
DISPOSITION
The order is affirmed.
AARON, J.
WE CONCUR:
O'ROURKE, Acting P. J.
IRION, J.
10
AI Brief
AI-generated · verify before citing
Holding. The juvenile court did not abuse its discretion in denying a mother's section 388 petition to modify a prior order terminating reunification services, as she failed to demonstrate changed circumstances or that modification would be in the children's best interests.
Issues
Did the juvenile court abuse its discretion in finding the mother failed to establish changed circumstances under section 388?
Did the juvenile court abuse its discretion in finding that modifying the prior order would not be in the children's best interests?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Courts have routinely concluded that similar circumstances do not constitute changed circumstances for purposes of a section 388 petition.”