In re J.S.

Filed 2/11/10 In re J.S. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from an order of the Superior Court of Tulare County. Charlotte Wittig, Commissioner.

Kathleen Murphy Mallinger, under appointment by the Court of Appeal, for Defendant and Appellant.

Kathleen Bales-Lange, County Counsel, and Amy-Marie Costa, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

J.S. (mother) appeals from a superior court order terminating her parental rights (Welf. & Inst. Code,  366.26)^[1]. She contends we should review the superior courts earlier decision to deny her reunification services ( 361.5, subd. (b)(10)) because she claims she received incorrect notice of her remedy in this court. She also challenges the superior courts subsequent decision to deny a modification petition ( 388) she filed seeking to reunify with her son.^[2] In her view, the court misunderstood the relief she sought and therefore did not exercise its discretion. Alternatively, she argues she was entitled to modification of the order denying her services because there was substantial evidence to support her claims. On review, we disagree with mothers contentions and affirm.

PROCEDURAL AND FACTUAL HISTORY

Mother tested positive for controlled substances, specifically methamphetamine, in September 2008 when her son was born. She had a history of substance abuse and regularly used controlled substances during her pregnancy. She in turn caused the child to suffer from controlled substance absorption while in utero. The child was placed in protective custody following his birth.

This was not the first time mother gave birth to a drug-exposed infant. In 2007, mother used methamphetamine in the weeks prior to giving birth to another boy. She failed to reunify with the older child and reunification services were terminated in early 2008. There was a substantial risk that mothers newborn son would be similarly neglected because she failed to adequately address the factors underlying her neglect of the older sibling.

The Tulare County Superior Court exercised its dependency jurisdiction ( 300, subd. (b) & (j)) over the child in November 2008 as well as adjudged him a dependent child and removed him from parental custody. The court also denied mother reunification services pursuant to section 361.5, subdivision (b)(10), having found she failed to reunify with the childs sibling and the current situation was really no different than that in the siblings case.^[3] The court also expressed its concern that mother was unwilling to be honest about her significant history of substance abuse.

The court consequently set a March 2009 section 366.26 hearing to select and implement a permanent plan for the child. The following exchange then occurred.

THE COURT: Counsel, do you waive reading and advisement of appeal and re-hearing rights?

[ATTORNEY FOR MOTHER]: Yes.

THE COURT: Ms. S[.] is served with a notice of necessity to seek writ review regarding the setting of a .26. Said notice does include an advisement pursuant to California Rules of Court 5.600, as well as the JV-820 and 825 forms.

This marked the conclusion of the jurisdictional/dispositional hearing.

The same day an APPEAL RIGHTS form was filed in this case. The form, signed by mother and her attorney and dated November 13, 2008, advised in part: You have the right to appeal to the Court of Appeal from the findings and orders of this court. Mother did not appeal the superior courts November 13, 2008, judgment.

The agency subsequently reported that it was likely the child would be adopted by his current care provider and urged the court to terminate parental rights under section 366.26. The court eventually conducted the section 366.26 hearing in late May 2009.

Three weeks before the section 366.26 hearing, mother petitioned to modify ( 388) the courts November 13, 2008, orders denying her reunification services and granting her twice-a-week supervised visitation. She alleged and documented that her circumstances had changed since those orders issued because she: completed residential drug treatment in January 2009; agreed to participated in after care services; regularly attended AA/NA meetings; tested negative for drugs; and completed a domestic violence victims group, four out of five components in a parenting program, as well as CPR/first aid training.

Mother wanted the court to modify its orders, as follows:

(1) That Reunification Services be granted with respect to the minor, J[.]; (2) that my visitation with the minor be increased with respect to frequency and duration; and (3) that the permanent plan be changed to return home rather than adoption.

She alleged these changes would be better for the child because:

I love my child, J[.], he is very attached to me, and we have a very strong bond which continues to grow stronger. I have learned from my mistakes with respect to drugs and desire that J[.] reap the benefits of my changes so that he may be with his birth mother. I am actively looking for work and will provide a stable and loving environment for J[.]. He deserves a new chance at a happy life with family.

Attached to mothers petition was a March 2009 letter from the executive director of mothers treatment program. The director stated mother never missed an opportunity to spend time with her son, in the program, and since leaving. She is appropriate with and devoted to him. The letter concluded there was nothing mother could do to demonstrate her sincerity, commitment and desire to parent the child that she had not done. A May 2009 progress report from a recovery specialist with the treatment program added an opinion that mother and child were bonding well and she was willing to do whatever it took to stay sober and be reunited with the child.

The agency filed a response to mothers section 388 petition in which it recommended the court deny the petition and proceed to terminate parental rights. According to the agencys response, mothers housing was less than stable after she completed the residential treatment program in January. As of early May, mother was staying at the Johnson House, a sober living home. She claimed a new house manager position was being created for her at the home where she and the child could live. This, however, was a work in progress and had not been approved.

The agency acknowledged the fact that mother appeared to be addressing her substance abuse problems. Nevertheless, it reported she had never cared for the child and had not shown she was capable of meeting his special needs. In April 2009, the Central Valley Regional Center (CVRC) assessed the child and found him eligible for services.^[4] CVRC was apparently concerned that the child was both floppy and stiff, had poor muscle tone, and neither babbled nor talked. CVRCs recommendations included physical therapy, an optometry consult, and medication for the childs apparent acid reflux. Further, the agency reported mother had only shown sobriety for less than six months in comparison to her extreme substance abuse history.

On the hearing date in late May 2009, the parties submitted mothers section 388 petition based on the pleadings filed and the arguments of the parties counsel. Mothers counsel argued there had been a dramatic change in that mother had cleaned up with respect to drugs and had done more than an admirable job with respect to services which she obtained on her own. He also argued she was in a position where she could have the child live with her at the Johnson House. Counsel concluded with the following remarks:

What better interest is there for a child than to remain with his birth mother? What better person is there to take ca[r]e of her than the one who has been through all of these problems and has shown that she is able to better herself and kick her habit and become a better parent.

I think under the circumstances even with the prior history, which Im certain that Deputy County Counsel will point out and it is all too obvious to everyone that shes nevertheless has done a remarkable job, and it would be in the best interest of the child to be returned to the birth mother with services to be provided. (Italics added.)

The court denied mothers petition. It explained:

As to the 388, the Court first of all does commend the mother. Shes done a lot of hard work and thats very clear to the Court that she has overcome a lot of obstacles.

[] []

The Court has no doubt that the mother loves J[.] The standard, however, is the best interest of the child. This child is entitled to permanence and stability. While there has been some change of circumstance, the Court has to agree with County Counsel that the mother has not yet demonstrated the stability that would show that she can adequately care and parent J[.]. Even assuming there had been a sufficient change of circumstance, she has not met her burden showing that its in J[.]s best interest. J[.] has been with his current placement since birth. They have cared for him. They have met all of his special needs. There is no indication that the mother is capable of doing so at this point in her recovery.

The court thereafter proceeded with the section 366.26 hearing and, having found it likely the child would be adopted, terminated parental rights.

DISCUSSION

I.                   The Record Establishes Mother Received Proper Notice of her Writ Remedy

When a superior court sets a section 366.26 hearing, review of all orders issued at the setting order hearing is by extraordinary writ petition, rather than by appeal (In re Anthony B. (1999) 72 Cal.App.4th 1017, 1022-1023;  366.26, subd. (l)). The purpose behind this exception to the normal rule -- that post-dispositional orders are reviewable by appeal ( 395, subd. (a)) -- is to afford expeditious review on the merits before the superior court conducts the section 366.26 hearing. ( 366.26, subd. (l).) A superior courts failure, through no fault of a parent, to discharge its duty to give timely, correct notice of the writ remedy constitutes good cause for an appellate court to excuse a parents failure to seek writ review. (In re Cathina W. (1998) 68 Cal.App.4th 716, 722 (Cathina W.).) Under those circumstances, the appellate court may address the merits of the parents challenge to the setting order on appeal from a parental rights termination order. (Ibid.)

Mother contends she did not receive proper notice of her writ remedy once the superior court denied her reunification services and set a section 366.26 hearing. She relies upon the appeal rights form she purportedly signed on the same day the superior court issued its setting order. She assumes the superior court gave her the form, thereby incorrectly informing her that she had a right to appeal the courts denial of reunification services. Mother in turn claims, pursuant to Cathina W., that we should review on this appeal the superior courts decision denying her reunification services.

To begin, we question why mother did not file a notice of appeal if she wished to challenge the courts denial of services order but she believed it was an appealable order, as she would have us assume?

In any event, mother is not entitled to Cathina W. relief. She has not affirmatively established that the superior court gave her improper notice of her remedy. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [it is the appellants burden to affirmatively show error on the record].) The signed and dated appeal rights form does not affirmatively prove that the superior court improperly served her with that form and did not advise her of the writ remedy. There is no evidence in the record as to how mother obtained the form or came to sign it. Thus, mothers argument in this regard is speculative.

She also claims there is no record evidence that she ever received the correct notice forms. In so arguing, she gives short shrift to the record which establishes she did receive proper notice. At the conclusion of the November 2008 hearing, the court expressly stated for the record that mother was:

served with a notice of necessity to seek writ review regarding the setting of a .26. Said notice does include an advisement pursuant to California Rules of Court 5.600, as well as the JV-820 and 825 forms. (Italics added.)

The 2008 version of the California Judicial Council JV-820 form, that the court stated mother had been served with, included the following language:

NOTICE

The juvenile court has decided it will make a permanent plan for this child which may result in the termination of your parental rights and adoption of the child. If you want an appeals court to review the juvenile courts decision, you must first tell the juvenile court by filing a Notice of Intent. You may use this form as your Notice of Intent. In most cases, you have only 7 days from the courts decision to file a Notice of Intent.

The backside or page 2 of the JV-820 form provided further information about the process of challenging a setting order decision.

Thus, the appellate record in fact establishes mother received the notice to which she was entitled. To conclude otherwise would require us to discredit the courts statement that she was served with the correct forms and assume that she was not. Mother fails to explain on what authority we might do so.

Even if we were to find the appellate record was in conflict, it is our duty to harmonize it if possible (People v. Smith (1983) 33 Cal.3d 596, 599). Further and in any event, that part of the record will prevail which because of its origin and nature is entitled to greater credence. (Ibid.) We conclude the courts express statement that mother was served with the proper notice is entitled to greater credence than mothers speculation that she was not because she signed a notice declaring a right to review by appeal. (Ibid.) Consequently, mother cannot show good cause exists to excuse her failure to seek timely review of the superior courts denial of reunification services. (Cathina W., supra, 68 Cal.App.4th at p. 719.)

II.                The Court Properly Exercised and Did Not Abuse its Discretion by Denying Mothers Section 388 Petition.

Mother also contends the superior court erred by denying her modification petition under section 388. Section 388 entitled mother to petition to modify the courts prior order denying her services. It was her evidentiary burden, nevertheless, to persuade the court to grant her the relief she sought. (In re Audrey D. (1979) 100 Cal.App.3d 34, 43.) She had to establish changed circumstances or new evidence as well as show the proposed change in order was in the childs best interests. ( 388, subd. (a); In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Given the timing of her section 388 petition, that is on the eve of the permanency planning hearing, it was also incumbent on mother to show the childs need for permanency and stability would be advanced by the relief she sought. (Ibid.) We review the courts ruling on a section 388 petition for abuse of discretion. (Id.at pp. 318-319.)

Mother first claims the court mistakenly thought she sought her sons return to her care rather than just reunification services so that it failed to exercise its discretion and properly consider her petition. Alternatively, she argues the court abused its discretion because there was substantial evidence that she completed all reunification requirements and it would be good for the child to offer more visits and reunification services. As discussed below, the superior court properly exercised its discretion in denying mothers section 388 petition.

To the extent mother contends the court did not exercise its discretion, she has only herself and her attorney to blame for any confusion over the relief she sought. Mother emphasizes that her written section 388 petition requested [r]eunification [s]ervices be granted and my visitation with the minor be increased with respect to frequency and duration. The petition, however, also sought that the permanent plan be changed to return home rather than adoption. In addition, by the time of the hearing on mothers section 388 petition, her attorney argued mother was in a position now . . . [to] have the child live with her and urged the court to return the child to the birth mother with services to be provided. The superior court could properly infer that the relief mother sought as of the hearing date was an order that the child be returned to or placed with her subject to family maintenance services.^[5] Mothers claim otherwise is meritless.

With placement as mothers sought-after relief, the court could properly conclude, notwithstanding mothers changed circumstances, that return was not in the childs best interest. First, mother produced no evidence that she had secured a residence where the child could also live. There was only her attorneys argument to that effect, which was not evidence. (In re Zeth S. (2003) 31 Cal.4th 396, 413, fn. 11.) Second, mother produced no evidence that she could meet the childs special needs, specifically his developmental disability.

Mother further failed to establish how the childs need for permanency and stability, at this late stage in the proceedings, would be advanced by placing him with her. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) On appeal, she also downplays the evidence that she had never had the child in her care and that, despite a significant history of substance abuse, she had only shown her sobriety for approximately six months. It is true that there were those in the treatment program who believed there was nothing more mother could do to demonstrate her sincerity, commitment and desire to parent the child. It is not this courts role, however, to reweigh the evidence. (In re Laura F. (1983) 33 Cal.3d 826, 833.)

Mother essentially asked the court to wager with the childs future that she could maintain her relatively new-found sobriety while providing for a special-needs child who had never been in her care. We fail to discern how such a scenario would promote the childs need for permanency and stability. We therefore conclude the court did not abuse its discretion by denying mothers section 388 petition. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)

DISPOSITION

The order terminating parental rights is affirmed.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

* Before Vartabedian, A.P.J., Dawson, J., and Poochigian, J.

^[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] Because mothers son shares the same initials as her, we will refer to him hereinafter as either her son, newborn son or the child.

^[3] Section 361.5, subdivision (b)(10) states the court need not order reunification services if it finds by clear and convincing evidence that:

the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent or guardian.

^[4] Regional centers are responsible for determining through testing and evaluation whether an individual has a developmental disability. ( 4642, 4643.)

^[5] Family maintenance services are activities designed to provide in-home protective services to prevent or remedy neglect, abuse, or exploitation, for the purposes of preventing separation of children from their families. ( 16501, subd. (g).)