California Court of Appeal Jul 1, 2013 No. E057921Unpublished
Filed 7/1/13 In re K.P. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 K.P. et al., Persons Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E057921
Plaintiff and Respondent, (Super.Ct.No. INJ016294)
v. OPINION
K.M.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni,
Welfare and Institutions Code2 section 366.26, was set for both children. During the
interval prior to the section 366.26 hearing, mother completed a three-month residential
drug rehabilitation program, gave birth to another child who remained in mother‟s care,
and resided in a sober living home, which formed the basis for a petition to modify the
prior court order pursuant to section 388. The court denied the petition and terminated
parental rights. Mother appealed.
On appeal, mother challenges the denial of her section 388 petition as an abuse of
discretion. We affirm.
BACKGROUND
On October 20, 2011, the Riverside Department of Public Social Services (DPSS)
received a referral for K.P., then age 21 months, and K.M., then seven months of age.
Mother had been arrested following a parole sweep of her residence during which she
was found to be in possession of methamphetamine, narcotic medication, checks and
1The fathers of K.P. and K.M. are not involved in this appeal. They will be mentioned only where needed for context.
2 All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
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credit cards; in addition, a registered sex offender was in the apartment. Mother‟s history
revealed long-term use of methamphetamine, commencing when she was 11 years old,
when she was in foster care herself. She also had an extensive criminal history involving
drug offenses, as well as stolen checks and credit cards.
Both parents had child welfare history, having lost custody of two other children
prior to DPSS involvement with K.P. and K.M. On May 25, 2010, their parental rights
had been terminated as to two older children. On October 28, 2011, the current
dependency petition was filed alleging parental neglect (§ 300, subd. (b)), and leaving the
children without provision for support. (§ 300, subd. (g).) As to mother, the allegations
were based on her extensive history of substance abuse, her arrest and incarceration
following the parole sweep, and her prior history with DPSS wherein mother was
provided services but failed to benefit from them, leading to her permanent loss of
custody of two other children. The court ordered that the children be detained out of
home pending a jurisdictional hearing.
The report prepared for the jurisdictional and dispositional hearing revealed more
information about mother‟s addiction to methamphetamine, which began when she was a
foster child, herself. Mother‟s first child, born in 2002, tested positive for
methamphetamine at birth. In 2004, that child, J.H., was declared a dependent and
mother was offered family maintenance services. That dependency was terminated in
2005.
In 2006, another referral was received by the Child Protective Services (CPS)
when mother was arrested for burglary while her child was with her. A dependency
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petition was filed relating to J.H., who was declared a dependent in January 2007.
Services were denied in that dependency due to the length of mother‟s incarceration.
However, in 2008, the court granted mother‟s 388 petition as to J.H. and ordered
reunification services for mother.
Mother failed to complete the case plan, resulting in termination of those services
in January 2009, when a new referral was made on behalf of mother‟s second child, L.P.
Mother was denied services again, and on May 25, 2010, mother‟s parental rights as to
J.H. and L.P. were terminated. Based on the length of mother‟s substance abuse,
spanning approximately 20 years,3 and her failure to reunify with two other children in
previous dependency cases or to treat the underlying problems (ref. § 361.5, subdivisions
(b)(10), (11), (13)), the social worker recommended denial of reunification services in the
current dependency.
On January 18, 2012, the court sustained the petition and adjudged the children to
be dependents pursuant to section 300, subdivisions (b) and (g). The court removed
custody of both children from the parents, and ordered reunification services for the
father of K.M. only. As to mother, the court made findings pursuant to section 361.5,
subdivisions (b)(10), (11) and (13), and denied reunification services for her. The court
3Mother was born in 1981 and started using drugs when she was 11 years old, or 1992. The jurisdictional hearing in the instant proceeding took place in 2012, or approximately 20 years later.
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set a section 366.26 hearing for K.P., to select and implement a permanent plan for that
child.4
The section 366.26 report prepared for K.P. indicated that both children were
placed with K.M.‟s paternal uncle. The caretakers originally indicated a willingness to
adopt both children. During this time, mother was participating in an inpatient treatment
program, from which she was scheduled to graduate in May 2012. Mother also visited
consistently, and the end of the visits was traumatic for K.P., who wept profusely when
mother left.
In the July 2, 2012, report, prepared for K.M.‟s six-month review hearing
(§ 366.21, subd. (e)), it was revealed that mother had been arrested by her parole officer
on June 5, 2012, for being under the influence of methamphetamine, at which time
mother was five months pregnant with her fifth child. This was apparently mother‟s third
positive drug test, so the parole officer attempted to get mother placed in a custodial drug
treatment program. Mother was released from custody on June 29, 2012, and went
straight into the New Hope program. The report prepared for K.M.‟s six-month review
revealed that mother visited the children consistently, and that her visits were adequate,
with mother occasionally providing nurturance to the children, and engaging them in
problem solving. The social worker noted there appeared to be a maternal bond.
Although the clerk‟s minutes of the hearing show the findings made pursuant to 4 section 361.5, subdivision (b)(10), (11) and (13), they do not indicate that services were denied to mother. Additionally, the clerk‟s minutes incorrectly reflect that the juvenile court set a hearing pursuant to section 366.26 as to both children.
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K.M.‟s father also tested positive for methamphetamine and was arrested in April
2012. He had been discharged from his drug treatment program for failure to participate
a month after enrolling. Because of father‟s chronic and unresolved addiction problems,
as well as his failure to comply with plan objectives, the social worker recommended that
services to him be terminated and that K.M.‟s case be set for a 366.26 hearing. On July
17, 2012, the court conducted the six-month review hearing as to K.M., terminated the
father‟s reunification services, and scheduled a section 366.26 hearing for K.M.
In the meantime, the caretakers of the two children informed the social worker that
they no longer planned to adopt K.P., because they were taking another nephew into their
home. Their apartment was not sufficient for all the children, so they planned to adopt
K.M. only, as she was a blood relative. Additionally, K.P. was frightened of movies,
amusement parks, and going out to dinner, crying profusely, which affected family time
for the caretakers. K.P. was removed from this home and placed with her former foster
mother before being placed in the home of the adoptive parents of her older half-sibling,
J.H., and full sibling, L.P.
On October 19, 2012, mother filed a petition to modify the prior order, seeking
return of the children with maintenance services, or reunification services. The petition
asserted mother had completed a residential drug program between June 29, 2012, and
September 26, 2012, which program also entailed parenting classes, a domestic
violence/anger management program, individual counseling, and Narcotics
Anonymous/Alcoholics Anonymous meetings. She also asserted she had tested clean,
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maintained her sobriety, and shared a strong bond with the children through regular
visits. The court ordered a hearing on the petition.
On October 30, 2012, the social worker submitted a postpermanency review
report, recommending termination of parental rights. The report described mother‟s
consistent visitation with the children since her release from prison and revealed that K.P.
cried when she left her mother at the first visit. However, in September, the minor was
able to leave mother without any problem. Nevertheless, the visits went well with mother
providing nurturance and meeting the child‟s needs during visits. The social worker
recommended adoption of K.P. by her adoptive parents, who had adopted K.P.‟s older
sibling and half-sibling. The social worker recommended adoption of K.M. by her
paternal uncle, with whom K.M. had been placed since April 2012, and appeared to be
bonding.
The combined section 388 and 366.26 hearing was held on December 6, 2012.
Mother testified at the hearing that her circumstances had dramatically changed based on
her successful completion of the residential treatment program and six months of
sobriety. She provided the results of a hair follicle test which was negative for the
presence of drugs for hair samples collected on November 6, 2012. Mother gave birth to
her fifth child, M.M., in October 2012, prior to her discharge from New Hope
Rehabilitation Inpatient Program. That child, who was seven weeks old at the time of the
hearing, was maintained in mother‟s custody. Upon mother‟s discharge from New Hope,
she entered a sober living home and enrolled in Mom‟s Program, an intensive outpatient
program.
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The court considered the mother‟s testimony along with the social worker‟s
reports and addenda. Although impressed with mother‟s efforts to turn her life around,
the court concluded mother was in the process of changing and not yet sufficiently
changed to warrant a change of the prior order. The court denied the section 388 petition.
Turning to the selection and implementation hearing (§ 366.26), the court
determined that it was likely the children would be adopted. The court, considering the
testimony provided by mother in support of her section 388 petition, found that none of
the exceptions found in section 366.26, subdivision (c)(1)(A) or (B) applied, and that
termination of parental rights would not be detrimental to the children. It then terminated
the parental rights of mother and both fathers. Mother timely appealed.
DISCUSSION
Mother argues on appeal that the court erroneously denied her section 388
petition.5 Such a 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.
(In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re S.J. (2008) 167 Cal.App.4th 953,
959.) 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.
(Stephanie M., at p. 319.)
5 Mother argues that reversal of the section 388 order requires reversal of the order terminating parental rights, but makes no separate argument for reversal of the termination of parental rights.
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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 Stephanie M., supra, 7 Cal.4th at pp. 316-317.) The parent
bears the burden of showing both a legitimate change of circumstances and that undoing
the prior order would be in the best interest of the child. (In re Kimberly F. (1997) 56
Cal.App.4th 519, 529.) Generally, the petitioner must show by a preponderance of the
evidence that the child‟s welfare requires the modification sought. (In re B.D. (2008) 159
Cal.App.4th 1218, 1228.)
In evaluating whether the petitioner has met his or her burden to show changed
circumstances, the trial court should consider: (1) the seriousness of the problem which
led to the dependency, and the reason for any continuation of that problem; (2) the
strength of relative bonds between the dependent children to both parent and caretakers;
and (3) the degree to which the problem may be easily removed or ameliorated, and the
degree to which it actually has been. (In re Kimberly F., supra, 56 Cal.App.4th at p.
532.)
Not every change in circumstance can justify modification of a prior order. (In re
A.A. (2012) 203 Cal.App.4th 597, 612 [4th Dist., Div. Two], citing In re S.R. (2009) 173
Cal.App.4th 864, 870.) For a parent with an extensive drug history punctuated by
treatment and relapses, the parent must show that his or her circumstances have actually
changed, and are not merely changing. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
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“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., supra, 56 Cal.App.4th at p. 531, fn. 9.)
For this reason, even a showing of great effort to make improvements will not
necessarily be persuasive when a parent has an extensive history of drug use. (See In re
C.J.W. (2007) 157 Cal.App.4th 1075, 1081 [4th Dist, Div. Two].) Periods of sobriety
following relapse do not necessarily demonstrate a changed circumstance where the
parent has a history of alternating drug use and sobriety. (See In re Cliffton B. (2000) 81
Cal.App.4th 415, 423.)
In In re Amber M. (2002) 103 Cal.App.4th 681, mother filed a section 388 petition
after completing domestic violence and sexual abuse treatment programs, as well as the
residential portion of a substance abuse program. Mother had abused controlled
substances for more than 17 years and she had been clean for 372 days at the time of the
section 388 hearing, with two relapses during the course of the dependency, one of which
occurred after more than 300 days of sobriety. At the time of the hearing, mother was
living in a sober living unit. (Amber M., at p. 686.) The reviewing court affirmed the
juvenile court‟s denial of the section 388 petition because while mother was progressing
in treatment, return to her custody would not be in the children‟s best interests, although
it reversed the termination of parental rights because of a beneficial parent-child
relationship. (Amber M., at pp. 687, 691.)
Similarly, in In re Cliffton B., supra, 81 Cal.App.4th 415, the reviewing court
ruled that father‟s section 388 petition was properly denied. There, father had
experienced seven months of sobriety since a relapse that occurred earlier in the case, and
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had a drug use history dating back to his college days. Since then his periods of sobriety
alternated with recurring drug use. After the initial detention of his children, it took
father six months before he was able to stay sober for any length of time, and then, after
eight months of sobriety, he relapsed, followed by the most recent period of sobriety.
(Cliffton B., at p. 423.) The reviewing court concluded that father‟s recent 200 days of
sobriety was not enough to reassure the juvenile court that the most recent relapse would
be his last. (Id. at p. 424.)
In this case, mother‟s situation is similar to those of the parents in Amber M. and
Cliffton B. Although mother described her circumstances as dramatically changed, her
situation was actually the same: she was experiencing a period of sobriety following a
relapse of substance abuse, which was a continuing pattern. Mother‟s recent period of
sobriety was for a mere six months (admittedly a huge change for mother), but she was
still in a sober living home at the time of the hearing, functioning within a structured
environment. She had never demonstrated the ability to maintain sobriety without the
structure and assistance of a program.
The trial court was impressed by mother‟s efforts to turn her life around, as are
we, but given her very long history of chronic substance abuse, commencing when she
was 11 years old, and her continuing pattern of relapses, six months of sobriety is simply
insufficient to establish mother‟s circumstances had actually changed. (Mother was 31 at
the time of the hearing, so she had a 20-year history of substance abuse.)
We agree with the juvenile court‟s conclusion that mother had not met her burden
of demonstrating changed circumstances. Having failed to meet the first prong of section
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388, we do not need to address whether the proposed modification would be in the
children‟s best interest, other than to reiterate the conclusion of our sister court that while
mother was progressing in treatment, return to her custody would not be in the children‟s
best interests. (In re Amber M., supra, 103 Cal.App.4th at p. 687.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
MILLER J.
CODRINGTON J.
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AI Brief
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Holding. The court did not abuse its discretion in denying the mother's section 388 petition because her six months of sobriety, while commendable, did not constitute a sufficient change of circumstances given her 20-year history of chronic substance abuse and recurring relapses.
Issues
Did the juvenile court abuse its discretion by denying the mother's section 388 petition to modify the prior order?
Did the mother meet her burden of proving changed circumstances under section 388?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“the court concluded mother was in the process of changing and not yet sufficiently changed to warrant a change of the prior order.”
“For a parent with an extensive drug history punctuated by treatment and relapses, the parent must show that his or her circumstances have actually changed, and are not merely changing.”