Filed 3/9/18 In re K.M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.M., a Person Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,

Plaintiff and Respondent,

v.

C.M.,

Defendant and Appellant.


E068815

(Super.Ct.No. RIJ1600094)

OPINION


APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni, Judge. Affirmed.
Clare M. Lemon, under appointment by the Court of Appeal, for Defendant and Appellant.
Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant, C.M. (Mother), appeals the judgment terminating parental rights to her son, K.M. (born in 2015), after the juvenile court denied her Welfare and Institutions Code section 388 petition seeking reinstatement of reunification services and vacating the section 366.26 hearing. Mother contends the court abused its discretion in denying her section 388 petition because she demonstrated changed circumstances, and granting the petition was in K.M.’s best interest. We disagree and affirm the judgment.
II
FACTS AND PROCEDURAL BACKGROUND
Mother struggled with mental illness and has been on medication since she was 12 years old, about which time her father died of cancer. Mother, now 19 years old, was originally diagnosed with severe depression, with psychotic features. When she was 16 years old, she gave birth to K.M. K.M.’s father was not named on K.M.’s birth certificate and his whereabouts were unknown throughout the juvenile dependency proceedings. After K.M.’s birth, Mother lived with her mother (Grandmother) and K.M. Mother got along with Grandmother but had a strained relationship with her older brothers. Grandmother had difficulty keeping Mother stable and had her own disability issues to manage (back and knee problems).
Mother also suffered from serious postpartum depression after K.M.’s birth. She started hearing voices and threatened to harm herself and K.M. Plaintiff and respondent, Riverside County Department of Public Social Services (DPSS), initiated a voluntary family maintenance case in April 2015. DPSS provided Mother with services until October 2015, when the case was closed because Mother’s mental health and family situation had stabilized, and Mother demonstrated she was able to care for K.M., with Grandmother’s support.
On February 2, 2016, shortly after Mother stopped taking her medication for mental illness, Mother got into an argument with one of her older brothers who was visiting. Mother held a knife to his throat. In response, he punched Mother in the face in self-defense and slapped the knife away from her, causing a cut to his finger. The brother called the police. Mother fled, leaving K.M. with Grandmother. Mother was later arrested for assault with a deadly weapon, a knife, and transported to juvenile hall. The police reported the incident to DPSS, which investigated the matter.
Mother admitted that the day before, she attacked another older brother who had stopped by. She got mad at him, grabbed a knife from the kitchen, and brandished it at him. Her brother succeeded in calming down Mother and Mother put away the knife. Mother admitted she had been feeling “angry all the time, antsy, and . . . flighty.” Mother had stopped taking her medication for mental illness because she did not like taking it and Grandmother was unable to refill her prescriptions because Mother’s Medi-Cal coverage lapsed and Grandmother could not afford to pay for the medication.
Grandmother reported that during the past eight years, she had paid for Mother’s mental health treatment. According to Grandmother, Mother would be returning to Grandmother’s home after her release from juvenile hall, because Mother had nowhere else to go and Grandmother was the only person Mother got along with. Grandmother described Mother’s demeanor as “often moody, irritable, and angry. Anything sets her off.” Mother had been attending continuation school and was doing reasonably well. After investigating the incident on February 2, 2016, DPSS left K.M. with Grandmother while Mother was in juvenile hall. K.M. was 10 months old when first detained.
A. Juvenile Dependency Petition
On February 3, 2016, DPSS filed a juvenile dependency petition, alleging failure to protect (§ 300, subd. (b)) and no provision for support (§ 300, subd. (g)). The petition was amended several times thereafter and the court ordered K.M. detained. While at the juvenile detention center, Mother was seen by a psychiatrist, who prescribed the same medication she had previously taken. At the detention hearing, the court ordered K.M. detained and granted Mother visitation.
On March 17, 2016, Mother was released from juvenile hall to Grandmother’s care. She was placed on one-year of probation and required to complete 20 hours of community service. At the jurisdictional/dispositional hearing in April 2016, the court found that K.M. came within section 300, subdivisions (b) and (g), and adjudged K.M. a dependent. Reunification services were ordered for Mother. Mother attended weekly therapy and psychiatric appointments for monitoring her medication. She also completed a parenting program in August 2016.
On August 15, 2016, K.M. was returned to Mother’s care. Mother was compliant with probation and attended continuation school but was struggling with the readjustment of her medication. On October 5, 2016, the court ordered DPSS to provide Mother with family maintenance services in order to provide her with a Safecare program to assist with caring for K.M. while Mother was adjusting to new medication.
B. Section 387 Petition
In October 2016, Mother was diagnosed with bipolar disorder and was experiencing hallucinations. She could not sleep after being taken off Risperdal. On October 10, 2016, Grandmother allowed one of Mother’s brothers in her home, despite previously promising DPSS she would not do so while K.M. was in Mother’s care. The brother spent the night and the next day he and Mother got into a physical fight. The brother tripped Mother and kicked her in the face. Mother admitted having suicidal thoughts that day. Mother believed Grandmother allowed her brother into the home to make Mother mad. Mother felt she could no longer live in Grandmother’s home. Mother also had a physical altercation with her sister-in-law a couple of weeks earlier and had been suspended from school for “cursing out a teacher.”
On October 13, 2016, Mother and Grandmother argued and called each other names while Grandmother was driving Mother to therapy. Grandmother told Mother she wanted Mother out of her home. Mother grabbed Grandmother’s arm while she was driving on the freeway, risking causing an automobile accident while K.M. was in the car. Earlier that day, before getting in the car, Mother and Grandmother had been verbally aggressive towards each other. Mother’s therapist determined that Mother was a danger to herself and initiated proceedings for Mother to be placed on a mental health hold in a psychiatric hospital. K.M. was placed in protective custody that day.
On October 17, 2016, DPSS filed a section 387 petition, seeking removal of K.M. from Mother. The week before the incident, on October 13, 2016, Mother was diagnosed with bipolar disorder and was placed on new medications, which had been adjusted three times in October. The psychiatrist believed Mother’s medication and family dynamics may have caused Mother’s negative erratic behavior. Mother had engaged in multiple verbal altercations with her support system during the previous three weeks, including physical altercations with three family members. Mother no longer wanted to live with Grandmother because of Mother’s pent up frustration and anger toward Grandmother. On October 18, 2016, the court ordered K.M. detained.
On November 3, 2016, DPSS reported that Mother had met with her doctor at least once a month since July 2016, regarding her psychotropic medication. Her therapist believed Mother had stabilized on her medication. DPSS recommended continued reunification services, including family therapy for Mother and Grandmother, a transitional youth program for Mother to help her transition to independence from Grandmother, and continued mental health treatment.
During the contested jurisdictional hearing on November 14, 2016, on the section 387 petition, the court found true the allegations that Mother continued to suffer from unresolved mental health issues, and continued to exhibit erratic and aggressive behaviors, including physical domestic disputes with relatives in the presence of K.M. The court ordered K.M. removed from Mother’s care. The court further set a section 366.26 hearing and did not offer her reunification services because she had exceeded the statutory timeline for reunification. On December 9, 2016, K.M. was placed in a prospective adoptive family.
C. Section 388/366.26 Hearing
DPSS reported in its section 366.26 hearing report that Mother completed high school in February 2017, and was living independently from Grandmother in a residence with a roommate. Mother was not employed but was receiving supplemental social security income from the death of her father. Mother continued her medication for her bipolar disorder. She was attending individual therapy and joint therapy with Grandmother, whom she relied on for support. Mother completed parenting and anger management courses. She was currently taking a core life skills class, which assisted her in understanding her mental illness. Mother visited K.M. bimonthly.
On March 21, 2017, Mother filed a section 388 petition requesting the court to vacate the section 366.26 hearing and grant an additional six months of reunification services. DPSS filed an addendum report in May 2017, stating that K.M. had moved to a new prospective adoptive home, because the previous family was no longer committed to adopting him. K.M.’s new adoptive family loved K.M. and was committed to adopting him. Mother continued consistently visiting K.M. bimonthly, usually with Grandmother. K.M. was not upset when the visits ended.
In DPSS’s July 20, 2017, addendum report for the section 366.26 hearing, the social worker reported that Mother “was referred to the psychiatrist at the TAY program in January 2017 and only attended one session with the psychiatrist. [Mother] has not attended any psychiatric appointment for medication or evaluation since January 2017. [Mother] stated that she is currently being seen at Inland Psychiatric Center for medication, yet [DPSS] does not have an authorization to speak with the entity on behalf of [Mother]. [DPSS] cannot confirm or deny that [Mother] has been stable and compliant with the medication.”
The social worker further stated in the July 20, 2017, addendum report that: “On July 5, 2017, I spoke with a coordinator at the TAY program for [Mother]. She confirmed that [Mother] is not currently attending therapy with Ms. Grier, she is not currently enrolled or attending any specialized groups, or any additional resources that are offered through the program. The coordinator stated that although she is not assigned to [Mother] as her case manager, she was aware of who she was. She stated that [Mother] has not been consistent throughout her time with the TAY program and has not attended any of the recent groups in May or June 2017 as she is the facilitator for those groups.”
The social worker stated in her subsequent July 27, 2017, second addendum report for the section 366.26 hearing, that Grier told her that she had received incorrect information regarding Mother. The social worker stated in the July 27, 2017, report that Grier had said that Mother “is in counseling and has attended sessions . . . on June 14, 2017 and July 12, 2017. She stated that [Mother] arrived for her appointment on June 21, 2017; however, was turned away as Ms. Grier was not in the office and failed to contact [Mother]. Ms. Grier stated that [Mother] was not in session on June 28, 2017, as [Mother] called Ms. Grier and cancelled, but they briefly checked in over the phone. Ms. Grier stated that she was on vacation for July 5, 2017, and [Mother] did attend the session scheduled on July 12, 2017. She stated that she has been fairly consistent with her attendance . . . .”
At the section 388 hearing on July 27, 2017, Mother submitted a letter from Grier to the court, stating that Mother had been participating in therapy. The letter stated that Mother “was referred to The Journey TAY in February, 2016 after which she took advantage of individual therapy sessions. [Mother] was transferred from TAY Full Service Partnership (FSP) to TAY Stepping Stones Drop-In Center this past May, 2017 due to her no longer meeting the criteria of TAY FSP. She is no longer considered serious and persistent and her current functioning does not require intensive case management services. [Mother] has continued to work with this writer for individual clinical therapy for the past two (2) months. Since the transition of program services [Mother] has attended weekly scheduled therapy appointments.”
The social worker further reported in the July 27, 2017, report that on July 19, 2017, DPSS was informed Mother was pregnant. Mother attempted to conceal her pregnancy from DPSS but admitted it at the sections 388 and 366.26 hearings on July 27, 2017. Following argument by the parties, the court denied Mother’s section 388 petition and terminated parental rights.
III
LAW APPLICABLE TO A SECTION 388 PETITION
Under section 388, “[t]he juvenile court may modify an order if a parent shows, by a preponderance of the evidence, changed circumstance or new evidence and that modification would promote the child’s best interests. [Citations.] This is determined by the seriousness of the problem leading to the dependency and the reason for its continuation; the strength of the parent-child and child-caretaker bonds and the time the child has been in the system; and the nature of the change of circumstance, the ease by which it could be achieved, and the reason it did not occur sooner. [Citation.] After termination of services, the focus shifts from the parent’s custodial interest to the child’s need for permanency and stability. [Citation.] ‘Whether a previously made order should be modified rests within the dependency court’s discretion, and its determination will not be disturbed on appeal unless an abuse of discretion is clearly established.’ [Citation.] The denial of a section 388 motion rarely merits reversal as an abuse of discretion. [Citation.]” (In re Amber M. (2002) 103 Cal.App.4th 681, 685-686, italics added.)
Section 388 provides “an ‘escape mechanism’ when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights. [Citation.]” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528.) “Even after the focus has shifted from reunification, the scheme provides a means for the court to address a legitimate change of circumstances while protecting the child’s need for prompt resolution of his custody status.” (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) However, the best interests of the child are of paramount consideration when a petition for modification is brought after termination of reunification services. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
IV
MOTHER’S SECTION 388 PETITION
Mother contends the juvenile court abused its discretion in denying her section 388 petition because she demonstrated changed circumstances and that granting her petition was in K.M.’s best interests. Mother argues that, after the court terminated reunification services in November 2016 and set the section 366.26 hearing, treatment of her mental health illness was successful. She stabilized on medication and continued therapy. Mother also moved away from her dysfunctional family, gained independence, and enrolled in programs to help her understand and cope with her mental illness.
Mother bears the burden of showing both a substantial change in circumstances and that the proposed change is in K.M.’s best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The juvenile court did not abuse its discretion in denying Mother’s section 388 petition because Mother did not meet her burden of proof. Although Mother made significant progress by completing various beneficial programs and by making a concerted effort to resolve her mental health issues through treatment, her circumstances were not substantially changed. It therefore was not in K.M.’s best interests to vacate the order setting the section 366.26 hearing and terminating services. She was not in a position to take custody of K.M. nor was it likely she would be after receiving six more months of services.
Mother alleged in her section 388 petition the following changed circumstances: “In addition to completing classes in parenting and anger management, Mother is continuing with individual therapy and family therapy with the Maternal Grandmother. Mother is also participating in a core-life skills class. [Mother] is continuing her education at Riverside Community College.” Mother further asserted that granting her section 388 petition and vacating the section 366.26 hearing and ordering an additional six months of reunification services was in K.M.’s best interests because “Mother has maintained regular visits with the child. They have a strong bond.”
The record demonstrates Mother’s circumstances were changing but had not substantially changed since the time of the November 2016 order terminating reunification services and setting the section 366.26 hearing. Mother reportedly had not attended any psychiatric appointments for an evaluation or management of her medication since January 2017, six months before the section 388 hearing. A Transition Age Youth (TAY) program clinical therapist reported by letter dated July 18, 2017, that Mother had stabilized on her prescribed medications, received her high school diploma, separated from her unhealthy family ties, obtained independent living, and recognized the benefit of relying less on support from Grandmother. However, there was no evidence Mother continued to see a psychiatrist for medication monitoring.
Without oversight of Mother’s medication compliance by a psychiatrist or supervision by Grandmother, there remained the risk Mother would suffer mental illness, which would affect her ability to care for and protect K.M. In the past, Mother had stopped taking her medication and on another occasion, she was deemed unfit to care for K.M. during the process of cross titration of her medications. In addition, Mother had not demonstrated she was able to provide K.M. with a safe, stable home, and the DPSS social worker reported that the TAY program coordinator reported that Mother had not been consistent throughout her time with the TAY program.
The social worker reported in a July 2017 addendum report that Mother “has not provided [DPSS] or the Court sufficient information to demonstrate that her circumstances have changed. [Mother] . . . has [not] completed any additional parenting education or anger management courses. [Mother] continues to appear unstable and relies heavily on [Grandmother] who resides in Carson, CA for assistance in attending her appointments and visitation.” In addition, DPSS was concerned about Mother’s pregnancy.
DPSS recommended denial of Mother’s section 388 petition, and requested that K.M. remain in her prospective adoptive home with adoption as the permanent plan. DPSS concluded Mother “is not in a position to care for her son as she continues to deceive [DPSS] with her current circumstances and situation. She has not changed her circumstances and [K.M.] does not have a significant bond with [Mother] as it is demonstrated in his current lack of emotion when arriving and leaving his mother during the visits. In addition, [K.M.] does not seek [Mother] for affection or comfort during the visits.”
“A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child’s best interests. [Citation.] ‘“[C]hildhood does not wait for the parent to become adequate.”’ [Citation.]” (In re Casey D., supra, 70 Cal.App.4th at p. 47.)
Here, the juvenile court reasonably concluded it was not in K.M.’s best interests to grant Mother’s section 388 petition. “[A] primary consideration in determining the child’s best interest is the goal of assuring stability and continuity.” (In re Angel B. (2002) 97 Cal.App.4th 454, 464.) One moving for a change of placement bears a difficult burden, particularly so when, as here, reunification services have been terminated. “After the termination of reunification services, a parent’s interest in the care, custody and companionship of the child is no longer paramount. [Citation.] Rather, at this point, the focus shifts to the needs of the child for permanency and stability. [Citation.] In fact, there is a rebuttable presumption that continued foster care is in the best interest of the child [citation]; such presumption obviously applies with even greater strength when the permanent plan is adoption rather than foster care.” (Ibid.)
At the time Mother filed her petition, reunification services had been terminated for over 10 months. The focus of the dependency proceedings therefore had shifted from reunification to K.M.’s need for a stable and permanent home. K.M. had been in protective custody for almost 18 months, from the age of 10 months until the age of over two years old. He had changed foster homes multiple times and was happy in his current prospective adoptive home. He had bonded with his prospective adoptive family, who wanted to adopt him. The juvenile court reasonably concluded Mother did not meet her burden of showing changed circumstances or that a change in K.M.’s placement would be in K.M.’s best interests. (In re Casey D., supra, 70 Cal.App.4th at p. 48.) The court therefore did not abuse its discretion in denying Mother’s section 388 petition.
Mother’s reliance on the In re Kimberly F. factors to establish that the juvenile court abused its discretion in denying her section 388 petition is misplaced. Those factors include: (1) the seriousness of the reason for the dependency, (2) the relative strength of the existing bond between the minor and parent versus the minor and caregiver, and (3) the degree to which the initial problem has been addressed. (In re Kimberly F., supra, 56 Cal.App.4th at pp. 530-532.) Mother disregards In re Stephanie M., in which the Supreme Court held that the best interests of the child are of paramount consideration when a petition for modification is brought after termination of reunification services, as in the instant case. (In re Stephanie M., supra, 7 Cal.4th at p. 317; In re J.C. (2014) 226 Cal.App.4th 503, 527.)
As explained in In re J.C.: “It is true a parent and a child share a fundamental interest in reuniting up to the point at which reunification efforts cease. [Citation.] However, the interests of the parent and the child have diverged by the point of a [section 366] .26 hearing to select and implement a child’s permanent plan. [Citation.] ‘[C]hildren have a fundamental independent interest in belonging to a family unit [citation], and they have compelling rights to be protected from abuse and neglect and to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child.’ [Citation.] Adoption gives a child the best chance at a full emotional commitment from a responsible caretaker. [Citation.]” (In re J.C., supra, 226 Cal.App.4th at p. 527.)
For these reasons, the court in In re J.C. declined to apply the In re Kimberly F. factors “if for no other reason than they do not take into account the Supreme Court’s analysis in Stephanie M., applicable after reunification efforts have been terminated. As stated by one treatise, ‘In such circumstances, the approach of the court in the case of . . . Kimberly F. . . . may not be appropriate since it fails to give full consideration to this shift in focus.’ [Citation.] We instead follow the direction of our Supreme Court, holding that after reunification services have terminated, a parent’s petition for either an order returning custody or reopening reunification efforts must establish how such a change will advance the child’s need for permanency and stability.” (In re J.C., supra, 226 Cal.App.4th at p. 527.)
We recognize that the social worker acknowledged in her July 27, 2017, report that she had received incorrect information regarding Mother’s participation in therapy. The social worker reported in her July 20, 2017, report that Mother had not recently participated in therapy, whereas the social worker was later informed by Mother’s therapist that Mother had been participating in therapy since February 2017. Mother’s therapist also indicated Mother had stabilized on her prescribed medications, but there is no evidence in the record confirming that a psychiatrist was monitoring her medication. Mother reportedly had not attended any psychiatric appointments for medication or evaluation since January 2017. DPSS reported it could not confirm or deny that Mother had been stable and compliant with her prescribed medication plan.
Even taking into consideration that Mother was participating in therapy and her condition had improved, we nevertheless conclude she did not meet her burden of demonstrating that vacating the section 366.26 hearing order and granting additional reunification services would advance K.M.’s need for permanency and stability. The juvenile court therefore did not err in denying Mother’s section 388 petition.
V
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


CODRINGTON
Acting P.J.
We concur:


SLOUGH
J.


FIELDS
J.