Filed 4/3/18 B.C. v. Superior Court CA4/3





NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE


B.C.,

Petitioner,

v.

THE SUPERIOR COURT OF ORANGE COUNTY,

Respondent;

ORANGE COUNTY SOCIAL SERVICES AGENCY et al.,

Real Parties in Interest.






G055793

(Super. Ct. No. DP025923-001)

O P I N I O N

Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, Craig E. Arthur, Judge. Petition denied.
Law Offices of Vincent W. Davis & Associates and Denise Gardner-Adigun for Petitioner.
No appearance for Respondent.
Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel for Real Party in Interest.
Law Office of Harold LaFlamme and Linda O’Neil for Minor.

* * *

The court terminated B.C.’s (mother) reunification services and set a permanency hearing pursuant to Welfare and Institutions Code section 366.26 (.26 hearing). Subsequently, mother filed a petition pursuant to section 388 (388 petition) to change that ruling. The court denied the petition. It found mother had shown a change of circumstances in that she had maintained sobriety over a lengthy period. However, the court found that changing the order would not be in the best interests of the child. We find no abuse of discretion and deny the petition.

FACTS

In February 2015, the Orange County Social Services Agency (SSA) filed the underlying petition pursuant to section 300, subdivision (b), alleging mother had failed to protect seven-month old P.K. (Child). In particular, mother had driven to a gas station, left Child in the vehicle, and disappeared into the restroom for about one hour and a half. Police were called to the scene, where they found mother to be lethargic, with slow speech, droopy eyes, and constricted pupils. Mother stated she took “norcos,” “somas,” Xanax and Adderall. When asked when she last took the medication, mother stated it was “a blur.” The police searched mother and her vehicle, finding three bags of methamphetamine, two pipes, and various medications, including Hydrocodone.
The petition also alleged that a few days beforehand, mother started a bonfire near the side of her residence while she was suspected to be under the influence. One of Child’s five half-siblings reported that mother used too much gasoline and almost burned the house down. Witnesses observed the half-sibling “shaking in terror” from the event.
The petition further alleged that mother had a history of various drug and theft crimes, as well as a history of domestic violence with the father, who was then living in Texas and not involved in Child’s life.
On the day the petition was filed, Child was detained in protective custody. Shortly afterwards, the court ordered Child detained. The court ordered reunification services for mother and authorized supervised visitation of at least three times per week, two hours per visit. In March 2015, Child was placed with his maternal great aunt and uncle (whom we sometimes refer to as the caretakers).
Mother’s visitation began well, though she tended to arrive late. Mother also began drug testing, and in March 2015 had tested positive twice for opiates, for which she had a prescription.
The court held a jurisdiction/disposition hearing on April 6, 2015, where the court sustained the petition, declared Child a dependent, and removed custody from the parents, vesting it with SSA. The court approved a case plan that involved domestic violence counseling, parenting classes, a drug treatment program, drug testing, and a 12-step program. The court also maintained the prior visitation plan.
The six-month review hearing was set for September 29, 2015, but did not begin until February 10, 2016, and, after a series of continuances, did not conclude until April 19, 2016. The social worker assigned to the case filed several reports as the case progressed, showing mother initially making little progress, but eventually stabilizing and making excellent progress.
The initial report filed in September 2015 demonstrated little progress. Mother enrolled in counseling but over the course of four months attended only three sessions and was ultimately terminated from the program. Based on mother’s behavior, the therapist opined that mother was still using drugs. Mother’s attendance in domestic violence counseling classes was similarly spotty. With regard to substance abuse counseling, mother’s participation was likewise unsatisfactory. Her attendance was poor, and she was in danger of being ejected from the program. She was habitually late when she attended, and she had missed 26 drug tests. When she did test, she generally tested positive, but her numerous valid prescriptions, which included opiates and amphetamines, could explain those results. On one occasion she tested positive for cocaine. With regard to visitation, mother was inconsistent. She attended the majority of the scheduled visits, but missed several, sometimes without explanation. The quality of her visits was satisfactory, with the caretakers reporting that they had improved over time.
Child was doing well in the placement with the maternal great aunt and uncle. Child was reported to be a happy child who appeared well-adjusted and bonded to the family, including the caretakers’ daughter.
The social worker assessed the likelihood of reunification as “poor.” She noted that mother had made “some” progress toward her case plan, in that she had obtained housing, was communicative, and participated in classes when she attended. But she had also fallen short as to much of it, as described above. The social worker recommended that reunification services be terminated and that a .26 hearing be scheduled. This recommendation reportedly left mother “distraught.”
The six-month review hearing was continued until November 2015.
The social worker filed an addendum report on November 18, 2015. Mother’s visitation since the prior report was described as “consistent.” The maternal great aunt described the quality of the visits as “way better.” However, mother had not attended any more of the various classes and counseling required by her case plan. Mother informed the social worker that she had been offered drug court and intended to enroll in the program.
Mother continued drug testing in the interim, and her results continued to come back positive for amphetamines and opiates. However, this time the lab did further analysis and determined she had methamphetamine and Benzodiazepine in her blood that could not be accounted for by her prescriptions. The lab then went back and re-analyzed mother’s previous test results and confirmed a consistent pattern of various drugs in her system that could not have come from her prescription drugs.
The report noted that Child was continuing to do well in the current placement and was observed to be learning words. However, the caregivers expressed reluctance to adopt.
The six-month review hearing was again continued, this time to January 2016.
The social worker prepared another addendum to her report on January 25, 2016. From December to January, mother completed a 30-day residential treatment program. Her case manager from the residential program provided a glowing assessment, noting that she enthusiastically participated in various training programs, that she “surrendered to recovery [and] has become a very responsible open-minded person.” In roughly that same time frame, mother attended seventeen 12-step meetings. Prior to entering the residential treatment program, mother tested positive for methamphetamine and missed several drug tests. Mother was unable to visit Child during the 30-day treatment program. The social worker’s recommendation did not change. Although she praised mother’s positive steps toward sobriety, she noted mother “has a pattern of failing to follow through. This case was brought to the Court in February 2015 and she failed to take the proper steps towards sobriety during that time by continuing to use drugs” and failing to participate in her various counseling requirements and classes.
The six-month review hearing was continued again to February 2016.
The social worker prepared another addendum report on February 10, 2016. Mother had attended nine 12-step meetings in the interim between reports. She had not restarted visitation yet, though that seemed to be in part due to scheduling conflicts with the great aunt. Mother had not resumed any of her other required classes, though she was scheduled to begin a drug court program the following week. Mother was supposed to take two drug tests in the interim. She took one, which was negative. She missed the other.
The “six month” review hearing finally began on February 10, 2016, but did not conclude, and the matter was continued to February 22, 2016. The social worker prepared another report, dated February 22, 2016.
In the interim, mother had re-enrolled in a perinatal program, and this time the supervisor of the program had nothing but positive comments: “She’s doing well. I think she’s going to make it this time. She seems to be on top of it now and has a different kind of control over her life.” “I see it in her face. She’s totally different. She’s very clear and seems determined this time.” Mother had drug tested and her results came back consistently negative. Mother had also resumed parenting classes and the supervisor reported that she actively participated and even helped the group “break the ice.” The great aunt reported that mother had resumed visitation, she was early to all visitations, and that mother “looks and seems different.” She also stated, “This is the best I’ve seen her in her entire life.” The social worker, however, was “reluctant to change the recommendation” due to mother’s extensive history and the short, albeit encouraging, period of compliance.
The hearing was once again continued until March 2, 2016.
On that date the social worker prepared another addendum. Mother reported that she was attending five to seven 12-step meetings per week, and that she had been clean from drugs for 71 days. The social worker did not change the recommendation, stating, “Though [mother] continues to comply with her case plan, the period of supervision has been short and therefore, the undersigned is unable to make an assessment of her ability to stay sober and continue to follow through.”
The “six-month” review hearing resumed on March 2, but did not conclude, and thus was continued to March 7, 2016.
The social worker prepared an addendum to her report, dated March 7, 2016. Mother had continued to attend parenting classes. The supervisor of the classes stated, “She did really well. She has a lot of insight and has added to the class.” “It is clear that she is getting a lot of psycho education in other groups and has been able to pass that along.” Mother continued to test negative for drugs.
The “six-month” review hearing resumed on March 7, but did not conclude, and was continued to March 16, 2016. The court was occupied on March 16, and the hearing was continued again until March 22, and then again until March 23, 2016.
The social worker prepared an addendum to her report, dated March 22, 2016. Mother had tested positive for opiates, though she denied using. Through the drug court program, mother was sanctioned and put in jail for one night. She was also required to attend an intense outpatient program twice a week.
The hearing was continued again until March 29, 2016, and then to April 5, 2016. On April 5 the hearing continued but did not conclude and was continued to April 11, and then again to April 13, 2016. The hearing resumed on April 13, but did not conclude and was continued again to April 19, 2016.
The hearing finally concluded on April 19, 2016. The court found that the extent of mother’s progress in alleviating the causes of the initial placement was moderate. Because Child was under three-years old, the court terminated reunification services and ordered a .26 hearing on August 17, 2016.
Approximately one week before the scheduled .26 hearing, mother filed a 388 petition to change the prior order terminating reunification services. Mother asked the court to return Child to mother’s custody, reinstate reunification services, liberalize mother’s visitation, and place the child with the maternal grandmother as opposed to the maternal great aunt. In support of the petition, mother presented evidence that she had substantially complied with her case plan. She had completed parenting and drug abuse courses. She was regularly attending alcoholics anonymous meetings. She finished a domestic violence program and followed up by moving residences and changing her phone number so as to break all contact with the father. Mother’s counselor in the drug program submitted a letter stating mother had made tremendous progress and had stayed clean of drugs. Mother argued that this change would be in the best interests of the child because of the deep bond between mother and Child. In support of the petition, mother subsequently filed a letter from the superior court judge overseeing mother’s drug court program. The judge indicated mother was in full compliance with the program, including drug testing and counseling, and that she “has a positive attitude and is making excellent strides and life changing improvements in the program.”
On August 17, 2016, the social worker filed another report. Child was doing well under the care of the great aunt and uncle and they expressed a willingness to adopt Child. In the interim, mother had continued to consistently visit Child. The social worker’s recommendation was that mother’s parental rights be terminated and adoption be selected as the permanent plan.
On August 17, 2016, the court denied mother’s 388 petition, finding mother had not made a prima facie case that her circumstances had changed or that the request would be in the best interests of the child. However, at the same hearing, mother requested a bonding study to assess the bond between mother and child, which the court granted, setting a due date for the report of October 7, 2016. The referral to an expert sought a report on, among other questions, “Is there a benefit to the child to maintaining the parent-child relationship?” Also, “does that benefit outweigh the benefit the child would receive from an adoptive home?” The court continued the .26 hearing to October 11, 2016, which was subsequently continued to December 14, 2016.
On December 2, 2016, the bonding expert submitted a letter to the court indicating he had placed multiple calls to the great aunt, but none had been returned, and thus he was unable to assess the current placement. The hearing was continued to February 8, 2017.
On February 3, 2017, mother filed another 388 petition. The petition recited largely the same facts, adding that as of the beginning of 2017, mother was employed by a residential treatment program where she was described as a “wonderful example of recovery” to clients. She also had gone through DUI classes and her driver’s license had been reinstated. Her progress was sufficient that her visitation of her other children had been liberalized to the point where she had overnight visits with them. The new petition sought the same relief as the prior petition.
On February 8, 2017, the social worker prepared an addendum to her previous report, this time changing the recommendation as to Child’s permanency plan. The bonding study had been completed, and it found a significant bond between mother and Child, stating, “The study finds a significant, deep bond between mother and child. The bond is parental in nature from the child’s perspective. There are many aspects of benefit to the child from the parent-child relationship. Among these benefits are the provision of an atmosphere of safety and security, maintenance and care of the crucial ongoing developmental process of bond consolidation between parent and child, and meeting the child’s needs for affection, soothing, and care. Mother also serves a significant didactic function with the child. These benefits significantly outweigh the benefits the child would receive in an adoptive home.” In light of the study, both the social worker and foster parents agreed that long-term foster care was the best option for Child. Accordingly, the social worker requested that the court find that termination of parental rights “would be detrimental to the child as the child’s mother has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship”
At the hearing, in light of the changed recommendation, mother withdrew her 388 petition without prejudice. The court made orders as recommended by the social worker. The court set a post-permanency review hearing for July 31, 2017.
On March 29, 2017, mother filed another 388 petition seeking the same relief. On June 5, 2017, she filed an amended petition that did not change its substance.
On July 31, 2017, prior to the hearing on the petition, SSA filed a status review report with a changed recommendation: termination of parental rights, and adoption by the maternal great aunt and uncle. The maternal great aunt and uncle were once again willing to adopt Child. SSA reported that mother’s visitation had become less frequent. She missed two months of visitation due to pneumonia and then strep throat, and otherwise her visits were only lasting approximately three to four hours per week (of her allotted six hours), with occasional missed visits.
On November 7, 2017, the court held a hearing on mother’s contested 388 petition and a contested post-permanency review hearing. The social worker testified that she changed her recommendation from long term foster care to adoption for three reasons. The first was the two-month gap in visitation due to mother’s alleged illness. The second was the caretakers changing their mind and deciding they wanted to adopt Child. The third was mother not utilizing all of the visitation she was allotted even when she was healthy, which had been happening for approximately 10 months.
The court-appointed expert who conducted the bonding study also testified. He testified that, to the best of his recollection, when he evaluated Child, the maternal aunt brought her to the office. By the time of the hearing, his evaluation was approximately one year old, and he had not conducted any further investigation in the interim. He did, however, express a high degree of confidence in his findings as of the time of the study. He testified to the importance of the bond between biological mother and Child, and concluded he would only recommend adoption if there was egregious abuse by the parent and the child was at great risk.
In addition to the social worker and court-appointed expert, several members of the extended family testified. From their testimony, it became obvious the family had split into factions, with the maternal aunt and uncle on one side, and various other family members, including mother, on the other.
The maternal aunt testified that she would occasionally let Child stay with godparents, with the longest stay being about five days. She also let Child stay with the maternal grandmother for overnight stays early in the process. The maternal aunt’s understanding was she could let Child stay with anyone she would let her own daughter stay with. She explained that she changed her mind about adoption because of the amount of time that had gone by with Child in their household, and the fact that Child viewed them as mom and dad. She felt that with mother’s small amount of visitation per week, it would not be in the best interests of Child to be removed from their home. In the maternal aunt’s view, Child viewed mother as “the person who comes . . . to see her sometimes and takes her to pizza and plays games and get[s] her nails done and she says bye and comes back to our family.” “It’s not a mother-child bond. It’s just not.” Maternal aunt testified that her relationship with her family had deteriorated since she had decided to adopt Child.
The maternal great grandmother (a member of the opposing faction) testified that the great aunt (her daughter) had changed for the worse, losing her temper easily and even abusing Child. In particular, she testified she witnessed the great aunt yank Child’s arm from side to side, apparently in a violent manner. The great grandmother described an “ear-piercing cry.” That was Halloween of 2016, and she saw a bruise on Child’s arm approximately two months later.
Both the maternal aunt and great grandmother testified about an argument between the two of them that occurred during the lunch break of the hearing, though both offered muddled accounts of what happened with no clear details.
Mother testified concerning the enormous progress she had made in achieving sobriety. In fact, she was then employed by a drug treatment facility. She was still in the drug court program and regularly attending various counseling meetings as well as 12-step classes.
Mother testified that, over the prior six months, her relationship with the great aunt deteriorated. She testified that the great aunt had made it difficult to schedule visitations such that she had to pack all of her visitation into one day. (The great aunt testified to the contrary, that mother insisted on one day per week.) She testified that Child recently told her that the great aunt wanted to “cut” mother, does not like mother, and was mad at mother.
Mother testified in detail regarding the affection Child shows her during her visits, and how bonded they are to one another.
Next, the great uncle testified and his testimony largely mirrored that of the great aunt. He testified that mother’s visitations usually lasted between two-and-one-half and four hours. He testified that mother had never asked him for additional visitation. Nor had she asked that visitation be on a different day. The great uncle denied that Child had been abused in any way. Nor had he noticed any changes in the great aunt’s behavior in the previous six months. He testified that the great aunt’s relationship with the great grandmother (her sister) had chilled “[s]ince the beginning of this trial and this acrimonious back-and-forth over the child.”
In addition to the testimony summarized above, there was testimony about various parenting incidents (e.g., an incident where mother was having trouble getting Child to put a shirt on) or various statements interested parties made that have very little bearing on this appeal, other than to note that the two factions often gave contradictory accounts of what happened.
The court denied the 388 petition, finding it was not in Child’s best interests to be returned to mother. “In making this decision, the court gives great weight to the fact that [Child] has been in a stable placement for over 33 months, the fact [Child] is thriving in the caretakers’ home, . . . the fact that there is no evidence to the contrary.” The court also relied on “the fact that mother has failed to completely utilize her court-ordered visitation.” For the same reasons, the court found it would not be in Child’s best interests to offer mother additional reunification services. In reaching this conclusion, the court rejected mother’s contention that the great aunt had been thwarting mother’s relationship with Child. Finally, the court did offer one caveat regarding mother’s bond with Child: “this court is not making a determination as to whether or not the bond is parental in nature or whether it is strong enough to overcome an order terminating parental rights. That issue is left for the section 366.26 hearing.”

DISCUSSION

For the trial court, this was likely a difficult case. Mother’s turnaround was remarkable. The court described it as the “strength” of her case. It is clear she has a bond with Child and seems to have the requisite parenting skills to raise Child. On the other hand, she had been spending approximately three hours per week with Child, who had spent the vast majority of her life knowing only the great aunt and uncle as true parental figures. For these same reasons, however, this is not a difficult case on appeal. We review a trial court’s ruling on a 388 petition for abuse of discretion. (In re J.C. (2014) 226 Cal.App.4th 503, 525.) That means we can reverse the trial court only if its decision was unreasonable. It was not unreasonable.
To grant a 388 petition, the court must find a change of circumstances since its prior ruling, and that changing the prior ruling would be in the best interests of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526 [“Essentially, the statute requires a showing of a change of circumstances and that modification based on that change would be in the ‘best interests’ of the minor children.”].) The court did find a change in circumstances here: mother’s remarkable journey toward lasting sobriety. And we commend her for that.
The court did not find that reinstating reunification services would be in the best interests of Child. In making that conclusion, the court relied heavily on In re J.C., supra, 226 Cal.App.4th 503. There, an infant child was detained and placed with her maternal aunt. (Id. at p. 509.) During the first six months, the mother did poorly on her case plan and only visited sporadically. (Ibid.) Toward the end, she began to show some progress, and she was given an additional six months of reunification services. (Id. at p. 510.) The 12-month review hearing was continued multiple times, and ultimately concluded almost one year after it was originally scheduled. (Ibid.) During that review period, the mother got off to a shaky start, while at the same time the child continued to become more and more bonded to her caregiver. (Id. at pp. 510-511.)
As the 12-month review hearing approached, the mother got into a drug-treatment program that turned her life around. (Id. at pp. 511-512.) “She found full-time employment, began saving for a downpayment for her own residence, and took multiple parenting classes. She had clean drug tests, attended NA meetings, and developed a support system from staff and friends at the [drug recovery] program.” (Id. at p. 511.) The mother was given additional supervised visits with the child. (Id. at pp. 512-513.) The caretaker had some doubts about the mother’s parenting skills, and the bond between the child and caretaker was growing stronger over time. (Id. at pp. 513-514.) The court terminated reunification services and set a .26 hearing, but the mother continued visitation and participating in parenting classes. (Id. at p. 517.) Approximately one month before the .26 hearing, the mother filed a 388 petition, seeking return of the child to her care. (Id. at p. 519.) After the filing, but before the hearing, the mother was approved for overnight visits. Although the first overnight visit seemed to go well, the child’s teacher reported more aggressive behavior from the child afterwards. (Id. at p. 520.) Moreover, afterwards the mother became more inconsistent with her non-overnight visits, cancelling on several occasions. (Id. at p. 521.)
The court denied the mother’s 388 petition, finding that though the mother had changed her circumstances, it was not in the child’s best interests to reunify with the mother. (In re J.C., supra, 226 Cal.App.4th at p. 523.) We affirmed. We noted that “after reunification efforts have terminated, the court’s focus shifts from family reunification toward promoting the child’s needs for permanency and stability. [Citation.] ‘A court hearing a motion for 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.’” (Id. at p. 527.) We went on to express great concern about the child’s change in behavior after starting overnight visits: “As the [trial] court later came to realize, there was ample evidence [the child] would be devastated and suffer great detriment if she were removed from [the caretaker’s] home after two and one-half years. It is the only loving, safe, and stable home she has ever known. This case brings into sharper focus the reasons why the statutory scheme authorizes courts to terminate services and schedule a .26 hearing at the six-month review date for children younger than three. Section 361.5 provides services will not exceed six months if the child is under the age of three, unless the court finds a substantial probability of return with an extended 12- or 18-month period. These rules were enacted to circumvent the very situation we see in the case before us. . . . The Legislature understood children such as [the child] have a critical need to quickly find a secure and stable placement. It was detrimental to this child’s best interests, and it was ultimately unkind to Mother, to continue the case an additional 16 months.” (Id. at p. 528.)
The court’s reliance on In re J.C., supra, 226 Cal.App.4th 503, was well placed. Although the case before us is not completely identical, it shares important traits: in both cases the mothers failed to comply with the case plan until long after reunification services should have been terminated under the statutory scheme, but then managed to turn their lives around late in the process. In both cases there was evidence of productive visitation, but also concerns about consistent visitation. In both cases the children spent the majority of their young lives under the care of a loving relative with whom they thrived. In re J.C. emphasized the need to prioritize stability and permanency in these circumstances.
Here, by the time mother filed her 388 petition, Child had been living with the maternal aunt and uncle, viewing them as mother and father, for two years. Moreover, all evidence indicated Child was thriving in the home, and their willingness to adopt offered the potential for exactly the sort of permanency and stability the juvenile dependency system is designed to obtain. For that reason, the court did not abuse its discretion notwithstanding the mother’s excellent progress toward sobriety.
DISPOSITION

The petition is denied.



IKOLA, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



FYBEL, J.