Filed 11/2/18 In re Kade M. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Bethany Y. (Mother) appeals the denial of her Welfare and Institutions Code section 388[1] petition for renewal of reunification services on the eve of a hearing on termination of parental rights (§ 366.26) for her nearly two-year-old son, Kade M. We affirm.

I. Background

Mother was 43 years old when Kade was first removed from her care. She had used methamphetamine since she was 18 years old and had lost custody of two older children in the seven years before Kade’s removal. In 2009, she was found intoxicated and running down an alley in 50-degree weather holding Kade’s then five-year-old half-brother, who was wearing only pajamas. The child’s out-of-state father took custody of the child. In 2011, Kade’s sister tested positive for amphetamines at birth and had fetal alcohol syndrome, and she was removed from Mother’s and Father’s custody after several incidents placed her at risk from their substance use and domestic violence. Mother went into treatment and became sober for six months, but she relapsed and lost parental rights to her daughter in February 2013.

Domestic violence—including Father’s hitting, kicking, and choking Mother—occurred in the presence of the children throughout their relationship, which began in 2010. Father was incarcerated from 2013 to 2015, and he moved to California upon his release. Mother followed him, and Kade was born in May 2016.

In early October 2016 (when Kade was about five months old), Father pulled out a one-inch diameter section of Mother’s hair. Later that month, Father broke a window to enter Mother’s residence while Kade was home. Mother called police, Father resisted police entry, and officers found broken glass, blood, empty alcohol bottles, and piles of debris at the residence. Mother refused to press charges against Father. Three days later, Father hit, kicked and punched Mother, and he took her phone, shoes, and credit cards while Kade was in the home. A social worker attempted check on Kade’s welfare on two consecutive days thereafter, but Mother did not respond to her inquiries. On October 28, the social worker and two officers went to Mother’s residence with a court order to perform a welfare check. Mother did not respond, the officers forced entry, and Mother ran from the apartment, leaving Kade with a neighbor without the neighbor’s consent. Police quickly located Mother, who was intoxicated and lied about Kade’s location. She was arrested, and Kade was placed in protective custody.

On November 1, 2016, Solano County Health and Social Services (Agency) filed a juvenile dependency petition on behalf of Kade pursuant to section 300, subdivisions (b), (g) and (j). The petition alleged Mother and Father abused alcohol and methamphetamine; the parents engaged in domestic violence in Kade’s presence; the home was in a hazardous unkempt condition; Mother was incarcerated and unable to provide for Kade’s care; and the parents failed to resolve problems that led to termination of their parental rights to Kade’s sister. Kade was formally detained on November 2.

Mother admitted a 25-year history of methamphetamine use, more recent cocaine use, and nine years of heavy alcohol use, which included blackouts and current alcohol consumption of six beers a day. Mother’s alcohol use tended to lead to other substance abuse and domestic violence. Mother initially reported a maximum period of two years of sobriety, but she later admitted the maximum was seven months.

From October 2016 to January 2017, Mother was incarcerated on child cruelty charges. She engaged in multiple services in jail, including substance abuse treatment, trauma recovery, anger management, parenting, and individual therapy, and she had video visits with Kade. In January 2017, she was released to a 90-day residential treatment program. Her in-person visits with Kade were appropriate and positive, and they developed a healthy bond. The Agency increased visitation and allowed unsupervised visits. In a March 7, 2017 combined jurisdiction/disposition hearing, the court sustained as to Mother an amended petition that deleted the section 300, subdivision (g) allegation and formally ordered reunification services for her.

In April 2017, Mother was about to graduate from her treatment program when she relapsed on alcohol and methamphetamine while on a weekend pass. She was discharged from the program and incarcerated. In June, she reentered the program for another 90-day treatment period. In August, when she was again about to graduate from the program, she relapsed on alcohol and methamphetamine while on a weekend pass and was discharged from the program. For weeks, the social worker was unable to make in-person contact with Mother, and she did not appear at a previously-scheduled September 5 status review hearing. In September, Mother was arrested for providing false identification to a police officer and violating probation and again incarcerated. In October, the court terminated her services and set a section 366.26 hearing for the following February.

Mother remained incarcerated from September 2017 to January 2018. She again engaged in services while in jail and had video visits with Kade. In January 2018, she reentered the treatment program with an anticipated graduation date of April 24, 2018. After graduation, she planned to move into a sober living environment where Kade could reside with her, but she had no specific postgraduation employment, housing, or treatment arrangements in place. Meanwhile, in-person visits with Kade had been reduced from weekly to monthly to lessen Kade’s anxiety.

In February 2018, Mother filed a section 388 petition seeking renewal of reunification services based on her renewed commitment to recovery. The Agency recommended the petition be denied and Mother’s parental rights terminated. The contested section 366.26 hearing was continued to March 27, 2018, to be heard after Mother’s section 388 petition. At the March 27 hearing, Mother testified her current commitment to recovery was reliable despite prior relapses because she was doing it for herself rather than for her children; she had finally accepted she needed to completely abstain from alcohol, which led to other drug use; she had been humbled by her last period of incarceration and did not want to return to jail; she was working a 12-step program with a sponsor; and she was opening up in therapy. Mother reported she gave up two years of jail credits to enter the treatment program and would serve a six-year sentence if she failed in the program.[2] Mother claimed a large support network, citing people she had met in jail and in her treatment program in the last year or so. She said her two relapses in 2017 were related to disappointment with Father, and she would have no more contact with him. However, she acknowledged communicating with Father in October 2017 and possibly relocating to the same state where he was then living.

The court denied the section 388 petition, noting that almost 18 months had passed since Kade was first removed from Mother’s physical custody and that Mother had two relapses during the reunification period. The court terminated Mother’s parental rights and freed Kade for adoption.

II. Discussion

Mother argues the court abused its discretion in denying her section 388 petition. We find no abuse of discretion and affirm.

A. Limitations on Services for Parents of Children Under Three Years of Age

Kade was removed from Mother’s physical custody on October 28, 2016, and the jurisdiction/disposition hearing took place on March 7, 2017. Kade therefore “entered foster care” on December 27, 2016. (§ 361.49.) Mother was presumptively entitled to reunification services until September 7, 2017 (six months after the jurisdiction/ disposition hearing), but not beyond December 27, 2017 (12 months after Kade entered foster care). (§ 361.5, subdivision (a)(1)(B).)

Services could have been extended up to 18 months after the date Kade was originally removed from Mother’s custody only if the court had found a substantial probability Kade could be returned to Mother’s care by April 28, 2018. (§ 361.5, subd. (a)(3)(A).) To make this substantial probability finding, the court would have had to find Mother “consistently and regularly contacted and visited” with Kade, “made significant progress in resolving problems that led to [Kade’s] removal,” and “demonstrated the capacity and ability both to complete the objectives of . . . her treatment plan and to provide for the child’s safety, protection, physical and emotional well-being, and special needs.” (§ 366.21, subd. (g)(1).) Mother’s combined section 388 and section 366.26 hearing took place on March 27, 2018, about a month before the 18-month mark. Mother’s request for six months of services would have extended the dependency case beyond the 18‑month mark and into the maximum 24-month period. (§ 361.5, subd. (a)(4)(A).)

For services to have been extended beyond the 18-month mark and up to 24 months after Kade’s removal, the court would have had to find “by clear and convincing evidence that the best interests of the child would be met by the provision of additional reunification services to a parent . . . who is making significant and consistent progress in a court-ordered residential substance abuse treatment program” and the court found a substantial probability Kade would be returned by October 28, 2018. (§ 366.22, subd. (b), italics added.) To make this substantial probability finding, the court would have had to find Mother “consistently and regularly contacted and visited” Kade, “made significant and consistent progress in the prior 18 months in resolving problems that led to [Kade’s] removal,” and “demonstrated the capacity and ability both to complete the objectives of his or her substance abuse treatment plan as evidenced by reports from a substance abuse provider as applicable, . . . and to provide for the child’s safety, protection, physical and emotional well-being, and special needs.” (§ 366.22, subd. (b), italics added; see § 361.5, subd. (a)(4)(A).)

B. Section 388 Petition

A parent may petition the court to change a prior court order based on a change of circumstance. (§ 388, subd. (a)(1).) The court may grant the petition only if it finds circumstances have materially changed and the proposed change in the order would promote the best interests of the child. (See § 388, subd. (d); In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) The petitioner has the burden of proving both changed circumstances and the child’s best interests. (Kimberly F., at p. 529.) “The petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion.” (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)

After reunification services are terminated, the focus of a dependency case shifts from reunification to providing a permanent, stable placement for the children. (In re Marilyn H. (1993) 5 Cal.4th 295, 304.) A section 388 petition seeking reunification before a scheduled section 366.26 hearing serves as an “ ‘escape mechanism’ ” that guarantees due process by allowing the court to consider new information supporting parents’ right to custody of their children before a final termination of parental rights. (Id. at p. 309.) In re Kimberly F. proposed the following factors as relevant to an assessment of a child’s best interest in this context: “(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, italics omitted.) Other courts have criticized the Kimberly F. test as insufficiently emphasizing the child’s interest in permanence and stability. (In re J.C. (2014) 226 Cal.App.4th 503, 527; see In re G.B. (2014) 227 Cal.App.4th 1147, 1163.) We conclude the court did not abuse its discretion here even under the more lenient Kimberly F. test.

Mother’s circumstances were changing, but the court did not abuse its discretion in finding they had not substantially changed. (See In re Casey D. (1999) 70 Cal.App.4th 38, 49.) Mother used methamphetamine for more than 26 years, and her longest period of sobriety was seven months. Until her most recent incarceration and treatment in a secure facility, she apparently never completely abstained from alcohol, even though alcohol led to other substance abuse and violence in her personal relationships. In the five years preceding Kade’s removal, Mother was unsuccessful in treatment despite facing loss of parental rights to one child and losing custody of another, due at least in part to substance abuse. After Kade’s removal, Mother twice failed in treatment even though she was again facing a potential loss of parental rights.

Mother’s engagement in services during this case mostly took place in highly-structured conditions of incarceration and locked residential treatment. Her two relapses occurred when she was briefly released from those structured conditions on weekend passes, despite prior apparent success in the program. The court could reasonably doubt that Mother would be able to maintain sobriety when structure was once again removed. While Mother’s most recent commitment to treatment was impressive—reportedly forfeiting two years of jail credits and facing a six-year sentence if unsuccessful—the court was not required to accept those circumstances as convincing evidence that Mother was substantially likely to reunify with Kade in a reasonable period of time, especially as the severe threat of losing custody or parental rights had not been a sufficient incentive for Mother in the past.

The court also acted well within its discretion in finding an extension of Mother’s services was not in Kade’s best interests. Kade had been in foster care for all but about five months of his life. He had a strong parental bond with his foster parents, who planned to adopt him. Visitation with Mother had been limited: video visitation during periods of incarceration; a brief period of increasing in-person visitation prior to her first relapse; and current monthly visitation, which had been reduced from weekly visits to lessen Kade’s anxiety. The seriousness of the problems that led to the dependency case were severe—Mother was a chronic drug abuser with a history of recurrent dependency court intervention—and the difficulty of ameliorating such a problem is great. Indeed, because chronic drug abuse is a serious problem that is not easily ameliorated, courts have frequently affirmed the denial of section 388 petitions based on short periods of sobriety (less than a year) when a child has been removed at a very young age. (See, e.g., In re Ernesto R. (2014) 230 Cal.App.4th 219, 223–224 [no ineffective assistance of counsel because § 388 petition would have been futile; child detained at birth].) Given understandable doubts about whether Mother could successfully reunify with Kade in a reasonable period, the court did not err in finding that Kade’s best interests would be best served at this juncture by achieving permanency through adoption.

Moreover, the timing of the section 388 petition supported its denial. Mother’s anticipated graduation date from the locked treatment program was April 24, 2018, and the 18‑month mark after Kade’s initial removal was only four days later. The court, therefore, could reasonably have considered the standard for extending reunification services into the 24-month period when evaluating Mother’s petition. That standard requires a court to find by clear and convincing evidence that the child’s best interest would be served by an extension of services. (§§ 366.22, subd. (b), 361.5, subd. (a)(4)(A).) The court also would have had to find Mother made significant and consistent progress in the prior 18 months in resolving the problems that led to Kade’s removal (§ 366.22, subd. (b)(2)), which she had not done. In light of the legislative standards seeking to prevent prolonged dependency periods for very young children, the court did not abuse its discretion in denying Mother’s petition.

III. Disposition

The order terminating parental rights is affirmed.

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BRUINIERS, J.

WE CONCUR:

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JONES, P. J.

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NEEDHAM, J.

A153977