California Court of Appeal Mar 4, 2021 No. E074957Unpublished
Filed 3/4/21 In re B.L. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re B.L., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E074957
Plaintiff and Respondent, (Super.Ct.No. J281806)
v. OPINION
J.L.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Christopher B.
Marshall, Judge. Affirmed.
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant
and Appellant.
Michelle D. Blakemore, County Counsel, Dawn M. Martin, Deputy County
Counsel, for Plaintiff and Respondent.
1
Defendant and appellant J.L. (mother) appeals from an order summarily denying
her Welfare and Institutions Code1 section 388 petition for modification filed in juvenile
dependency proceedings involving her son, B.L. (the child). Mother argues she was
entitled to a hearing because her petition sufficiently established both her changed
circumstances and the benefit to her child that would result if the child was placed with
her or if family reunification services were provided. Respondent San Bernardino
County Children and Family Services (the Department) urges us to dismiss mother’s
appeal on the grounds that she was required to raise those arguments in her writ taken
from the order setting the section 366.26 permanent plan selection hearing. We will
address the merits of mother’s argument and affirm.
BACKGROUND
When the child was born in July 2019, mother had already lost custody of her
other four children, who do not share the same father as the child. Three children had
been removed in 2015 after mother tried to run her sister over with a car while the
youngsters were present. When reunification efforts as to those children failed, the court
ordered the two elder children into permanent placement with a paternal relative and
terminated parental rights as to the youngest. In 2017, the court adjudged mother’s fourth
child a dependent after the baby tested positive for alcohol, opiates, and amphetamines at
birth. Mother did not reunify with that child, and the court terminated her parental rights.
1All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
2
In July 2019, the child was born with a positive toxicology for methamphetamine.
The Department took the child into protective custody and filed a juvenile dependency
petition pursuant to section 300. The court ordered the child detained.
The juvenile court sustained an amended version of the section 300 petition,
asserted jurisdiction and adjudged the child a dependent pursuant to subdivisions (b)(1)
and (j) of section 300 at a contested combined hearing on jurisdiction and disposition. It
removed the child from both parents and ordered family reunification services for the
father. It bypassed services as to mother pursuant to subdivision (b)(10) and (b)(11) of
section 361.5 because of her failure to reunify with the child’s half siblings and the
termination of her parental rights as to two of them without her thereafter making
reasonable efforts to treat the problems that led to the removal of those children. Mother
was permitted supervised two-hour visits with the child twice a month. A six-month
status review pursuant to section 366.21, subdivision (e), was set for March 13, 2020.
The status review report prepared by the Department in anticipation of the review
hearing stated that mother had been visiting once a week. She would arrive on time and
prepared, stay the full two hours, and attend to the child’s needs during the visits, which
were described as “always appropriate.”
On March 5, 2020, mother filed a section 388 petition seeking orders either
returning the child to her with provision of family maintenance services or, in the
alternative, an order for family reunification services with increased liberalized visits
with the child. She averred that her circumstances had changed in that she had made
3
efforts to achieve and maintain sobriety, as well as completed parenting and anger
management classes.
Mother attached to her petition certificates from St. John of God Health Care
Services evidencing completion in November 2019 of 12 parenting classes and
completion of a 12-week anger management class and an outpatient program in
December 2019. She also attached a client progress form reporting 11 negative drug tests
between August 30 and December 18, 2019, and three negative tests for blood-alcohol
content during that period. No positive tests were reported. A February 29, 2020
aftercare report indicated that she had been tested twice (January 3 and February 17,
2020) with negative results, she had attended 84 percent of the required sessions, and her
level of involvement in them was “fair.” The report stated mother appeared to be focused
on her recovery, and she was in compliance with the rules and regulations of the aftercare
program, including providing proof of attendance of three 12-step meetings a week.
Mother also attached a letter she had written. In it, she explained she had enrolled
in programs when she was told she would not be getting any of her five children returned
to her. She reported weekly visits with the child, that she was employed and had rented a
place to live, and she intended to continue on her self-improvement efforts with the hope
of being able to be a mother to her children.
The juvenile court summarily denied the petition on March 5, 2020, finding it did
not state new evidence or a change of circumstances and that the proposed change of
order does not promote the best interests of the child.
4
At the March 13, 2020 six-month review hearing, the court terminated family
reunification services for the father, who had not participated in any services and had
visited the child one time. It set the matter for a permanent plan selection hearing.
On March 13, 2020, mother noticed her intent to file a writ petition (case No.
E074915, which was dismissed by this court on June 8, 2020) and filed notice of this
appeal.
DISCUSSION
Before addressing mother’s argument that the juvenile court erred when it
summarily denied her petition, we address the Department’s contention that the appeal
should be dismissed as forfeited or moot.
The Department’s call for dismissal of the appeal
The Department urges us to dismiss mother’s appeal because she did not raise the
issue of the denial of her section 388 petition in the writ proceedings she noticed after the
court terminated father’s reunification services and set the permanent plan selection
hearing. It claims that, because the section 388 petition and the denial order were in the
writ record and mother’s writ was dismissed after her counsel filed a letter advising this
court no issues were found to raise in the writ, mother should be foreclosed from
challenging in this appeal the summary denial of the petition. We disagree.
It is a well-settled general rule that an order on a section 388 petition is directly
appealable. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150.) The only exception
to that rule obtains when the juvenile court issues an order on the petition in the course of
5
a hearing during which it also sets a date for selection of a permanent plan pursuant to
section 366.26. (Ibid.) In that event, a party seeking to challenge any order made during
the hearing may not appeal but must instead petition the reviewing court for an
extraordinary writ. (§ 366.26, subd. (l); In re Tabitha W. (2006) 143 Cal.App.4th 811,
816-817 (Tabitha W.) [a party seeking to challenge orders made contemporaneously with
the setting of a section 366.26 hearing must comply with subdivision (l) of that section,
which requires review by extraordinary writ].)
Here, the denial of the section 388 petition did not occur at the same time as the
setting of the section 366.26 hearing. Accordingly, mother’s challenge of the denial was
correctly raised in a properly noticed appeal. (§ 366.26, subd. (l); Tabitha W., supra, 143
Cal.App.4th at pp. 816-817.) Nevertheless, the Department argues that mother forfeited
her right to challenge the denial of the petition by not raising the issue in the writ
proceeding, a claim based upon the faulty premise that the two orders are integrally
related such that, if we reverse the juvenile court’s denial of the section 388 petition, we
must also reverse the order setting the permanent plan selection hearing. Reversal of the
court’s order on the section 388 petition does not confer jurisdiction on this court to
reverse the setting order. That order is not before us in this appeal and, as explained ante,
any order made when the section 366.26 hearing is set may be reviewed only upon timely
receipt of a petition for an extraordinary writ. (§ 366.26, subd. (l); Cal. Rules of Court,
rule 8.450; Tabitha W., supra, 143 Cal.App.4th at pp. 816-817.)
6
Nor does the Department’s claim find support in the case it cites, In re
Charmice G. (1998) 66 Cal.App.4th 659. There, the juvenile court denied a mother’s
section 388 petition in the course of the same hearing in which it set the matter for a
permanent plan selection hearing. (Id. at p. 661.) The Fifth District rejected the mother’s
argument that the order on her petition was not “ ‘integrally related’ ” to the setting order
and, therefore, should not be subject to the writ requirement. (Id. at pp. 669-671.) It
explained that even if the writ requirement was subject to an integral relationship test—
which it is not—collateral orders issued contemporaneously with the setting order are
necessarily “ ‘integrally related’ ” so that reversal of the order on the section 388 petition
requires reversal of the setting order. (Ibid.) The circumstances in this case are
decisively distinguishable because the denial of mother’s petition took place before the
hearing during which the permanent plan selection hearing was set.
The summary denial of mother’s section 388 petition
Mother argues the juvenile court abused its discretion when it failed to grant a
hearing on her section 388 petition. She claims her petition established the required
prima facie showings of a change of circumstances and of benefit to the child to be
placed with her with maintenance services or, in the alternative, for her to receive
reunification services and liberalized visits. We disagree.
Subdivision (a)(1) of section 388 provides in relevant part that a parent of a child
who is a dependent of the juvenile court may, upon grounds of a change of circumstance,
petition the court to modify or set aside a previous order made by that court. The statute
7
plays a critical role in the dependency arena. It provides a means for the juvenile court to
consider a legitimate change of circumstances even after termination of family
reunification services, and it provides an opportunity to reinstate services in appropriate
cases where so doing would be in the minor’s best interest. (In re Marilyn H. (1993) 5
Cal.4th 295, 309; In re Hunter S. (2006) 142 Cal.App.4th 1497, 1506.)
In order to be entitled to a hearing on a section 388 petition, the parent must make
a prima facie showing not only of a change in circumstances but also how the proposed
modification of the prior order might advance the child’s best interest. (§ 388,
subds. (a)(1), (d); Cal. Rules of Court, rule 5.570(d); In re G.B. (2014) 227 Cal.App.4th
1147, 1157 (G.B.).) If, as here, a parent’s petition includes a prayer for provision of
reunification efforts, the parent must also make a prima facie showing that providing
services might advance the child’s need for permanency and stability. (In re Stephanie
M. (1994) 7 Cal.4th 295, 317; In re J.C. (2014) 226 Cal.App.4th 503, 527.) If the
parent’s circumstances are changing but have not yet changed, the juvenile court may
properly conclude that provision of services is contrary to the minor’s interest in having a
permanent and stable home. (In re Casey D. (1999) 70 Cal.App.4th 38, 47-48.)
The petition is to be liberally construed in favor of its sufficiency. (In re Angel B.
(2002) 97 Cal.App.4th 454, 461.) The juvenile court may consider the entire procedural
and factual history of the case when deciding whether the petition makes the necessary
showing. (In re Jackson W. (2010) 184 Cal.App.4th 247, 258.) The prima facie
8
requirement is not met unless the petition contains facts that, if established at a hearing,
would provide sufficient support for granting the petition. (Ibid.)
We review a juvenile court’s summary denial of the petition for abuse of
discretion. (G.B., supra, 227 Cal.App.4th at p. 1158.) We will not disturb that court’s
decision unless we find it exceeded the limits of discretion by making an arbitrary,
capricious, or patently absurd determination. (In re Aaron R. (2005) 130 Cal.App.4th
697, 705-706.)
The change in circumstances
It is quite difficult to make a showing of changed circumstances for the purposes
of a section 388 petition when one of the conditions leading to a child being adjudged a
dependent is the parent’s substance abuse—a problem that is often not easily resolved or
ameliorated. (In re Ernesto R. (2014) 230 Cal.App.4th 219, 225.) A parent with a long-
standing substance abuse problem severe enough to cause the parent to be unable to
provide adequate care for a child cannot show changed circumstances within the meaning
of section 388 by showing recent sobriety and participation in a treatment program.
(Ernesto R., at p. 223.)
In this case, the juvenile court did not abuse its discretion when it denied mother’s
petition without a hearing. Even if a hearing established mother’s progress in services as
recited in the attachments to her petition, those efforts would not sustain an order to
provide additional reunification efforts.
9
The record establishes that mother’s drug abuse issues are long-standing and
entrenched. She has been using methamphetamine on and off for 23 years, beginning in
1996 when she was 13 years old. Although she reported two significant periods of
sobriety sometime before and during 2010 (once for six years and another time for a few
years), she resumed use and was unable to stop when faced with the loss of her three
eldest children even with provision of services. She continued to use drugs when
pregnant with her fourth child, who was born in May 2017 with alcohol, opiates, and
amphetamines in her system. At the time of the child’s birth in July 2019, she said she
had been drug-free for approximately three years with “only” three relapses. Even so,
she reported using methamphetamine four or so days before the child was born.
The attachments to mother’s section 388 petition reflect that she made
commendable progress in her current efforts to address her substance abuse issues
between August 2019 and February 2020. That progress, however, signals only that her
circumstances were changing, not that they had changed. “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.) The need to demonstrate an
extended period of sobriety is particularly acute where, as here, the parent has not been
able to remain substance-free after remaining drug-free for long periods of time even
when pregnant or when faced with the loss of her children. In view of the foregoing, the
juvenile court did not abuse its discretion when it found mother’s petition did not make a
prima facie showing of changed circumstances.
10
The child’s best interests
Even if the petition had sufficiently stated a change of circumstances, the juvenile
court’s summary denial was proper because she failed to make a sufficient showing that
further reunification services would advance the child’s best interests. In particular, she
did not show how the proposed order would advance his interest in permanency and
stability. The petition simply stated that mother had been visiting the child weekly and,
according to her, they shared a “strong parental bond.” By the time of the court’s denial
of the petition on May 5, 2020, the child was nine months old and had spent his entire life
with his foster parent, Mrs. S. He had developed a close bond with Mrs. S., who wanted
to adopt him and was committed to providing him a permanent home.
In view of mother’s extensive substance abuse history, the child’s need for
permanency and stability, and the relationship he had developed with Mrs. S, the court
did not abuse its discretion when it found mother’s proposed change of order would not
promote the child’s best interests.
11
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
SLOUGH J.
RAPHAEL J.
12
AI Brief
AI-generated · verify before citing
Holding. The court held that the juvenile court did not abuse its discretion in summarily denying the mother's section 388 petition because she failed to make a prima facie showing of changed circumstances or that the proposed modification would serve the child's best interests.
Issues
Whether the juvenile court erred in summarily denying the mother's section 388 petition without a hearing.
Whether the mother's appeal of the section 388 order was procedurally barred by her failure to raise the issue in a prior writ proceeding.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The juvenile court did not abuse its discretion when it found mother’s petition did not make a prima facie showing of changed circumstances.”
“It is the nature of addiction that one must be ‘clean’ for a much longer period than 120 days to show real reform.”
“The court did not abuse its discretion when it found mother’s proposed change of order would not promote the child’s best interests.”