In re Ryan F.

Filed 5/10/06  In re Ryan F. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from an order of the Superior Court of San Diego County, Michael Imhoff, Juvenile Court Referee.  Affirmed.

            Candace G., mother of minor Ryan F., appeals the denial of her Welfare and Institutions Code^[1] section 388 petition for modification seeking to vacate the scheduling of a section 366.26 hearing and to have Ryan returned to her care, or alternatively, for further reunification services.  She contends the court erred by denying her section 388 petition on the basis that Ryan's best interests would not be served by returning him to her custody or by reinstating reunification services.  We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

            At the age of 11 months, Candace's first child, Anglee, was removed from her care.  Anglee was taken into custody when Nevada Child Protective Services discovered she was healing from unexplained rib fractures and had been exposed to numerous incidents of domestic violence.  Although Candace was offered reunification services, she was unable to complete them and relinquished her parental rights.  Her parental rights were terminated in June 2002. 

            Candace's second child, Ryan, was born in November 2002.  Although Candace had left Anglee's father and had Ryan with a different boyfriend, the pattern of domestic violence continued.  Between December 2002 and December 2003, Ryan was periodically exposed to physically violent confrontations between his parents. 

            In December 2003, the San Diego Health and Human Services Agency (the Agency) intervened because of domestic violence between Ryan's parents.  The court found there was a substantial danger to Ryan's physical health and placed him out of the home.  The court ordered Candace to comply with the requirements of her case plan, including participation in the Substance Abuse Recovery Management System (SARMS) program, domestic violence and parenting classes, a psychiatric or psychological evaluation and counseling. 

            In the following months, Candace was found to be in compliance with SARMS and was no longer required to participate.  Candace's psychological evaluation revealed her ability to make informed decisions about Ryan's welfare was impaired.  The evaluation highlighted Candace's diagnosis of major depression, numerous instances of suicidal ideation, suicide attempts and polysubstance abuse.  The evaluating psychologist did not recommend reunification at this time, concluding unless Candace made a significant commitment to address her numerous problems, she continued to place Ryan at risk. 

            At the six-month review hearing Candace was making substantive progress with the provisions of her case plan.  She maintained weekly supervised visits with Ryan and had remained free of psychotropic medication for two months.  Reunification with Ryan was anticipated by the 12-month hearing.

            However, Candace's compliance with her case plan and reunification services had substantially diminished by the 12-month review hearing.  Candace was terminated from the domestic violence program and parenting classes due to poor attendance. Further, she stopped attending her individual therapy sessions and was in need of medication for her depressive disorder.  Candace was referred to random drug testing due to her poor progress but failed to appear for any tests.  Visitation with Ryan was cancelled due to excessive nonattendance.  Candace claimed she had a contagious infection preventing her from attending services or visits, but she failed to provide any medical verification for her illness.  Based on Candace's failure to make substantive progress with the provisions of her case plan, the court terminated reunification services and set a section 366.26 hearing. 

            In July 2005, Candace filed a section 388 petition for modification, seeking to vacate the scheduling of the section 366.26 hearing and to have Ryan returned to her custody, or alternatively, to have reunification services reinstated.  As changed circumstances, Candace alleged she was drug free and made progress in the McAlister Institute Kiva (Kiva) program^[2] by regularly attending parenting and addiction classes, individual and group theory, and psychiatric treatment sessions.  As to Ryan's best interests, Candace alleged she consistently visited Ryan since her services were terminated, that she was committed to providing Ryan with a safe and healthy environment, and that the Kiva program allowed for her and Ryan to live together. 

            At the section 388 hearing, Candace's primary counselor at Kiva testified Candace participated in several workshops addressing relapse prevention, life skills, parenting, and domestic violence.  Further, the counselor testified Candace was subject to regular substance abuse testing, and to date, she had not tested positive.  The counselor noted a bed would be available for Ryan if the Agency found it to be in his best interests.  Further, she discussed her observations of Ryan's weekly visits, noting he smiled when he saw Candace, looked happy during his visits and appeared comfortable. 

            Chienthang Nguyen, Candace's therapist, testified that Candace had made a lot of progress in individual therapy.  Nguyen discussed the fact that Candace began using methamphetamine at age 17.  Further, Nguyen noted Candace's use of heroin and methamphetamine ceased approximately six months before the section 388 hearing.  Nguyen also discussed Candace's suicidal and self-mutilation inclinations.  Notwithstanding these personal difficulties, Nguyen explained Candace had taken responsibility for her actions and developed insight into the events leading to her current situation.  Nguyen remarked that if Candace stayed clean and sober, and avoided harmful relationships, she had the emotional tools to raise Ryan and " a huge opportunity to get her life back together."

            Social worker Joseph West testified Ryan appeared " standoffish" during his early visits with Candace but after four months of weekly visits he began to have more positive interactions with her and recognized her as his mother.  When Ryan arrived for this visits, he would say " mommy," run towards Candace and hug her.  During the visits, Candace assumed a parental role and at the end of the later visits, Ryan would cry and state, " I want to stay here with you, Mommy."   However, on the rides back from visits, Ryan was positive, did not cry and discussed other topics.  West also noted Ryan did not ask for Candace while in the care of his foster parents. 

            Despite Ryan's burgeoning relationship with Candace and her progress in treatment, West recommended against Ryan's placement with Candace as her success had largely taken place in a controlled environment.  Candace had a long history of drug abuse and domestic violence and her recovery had never been tested in the " real world."   Further, Ryan had been in his current foster home for two of the three years of his life and developed a very positive relationship with his caregivers.  Ryan calls them " Mom" and " Dad," looks happier with them and appears to have a deeper relationship with them, as compared to Candace.  Also, Ryan's caregivers are committed to adopting him.

            Candace also testified at the section 388 hearing.  She explained the variety of treatment she had been receiving and noted she had been sober for 298 days.  She stated she was working 40 hours per week transporting documents.  Further, Candace explained she would be completing the Kiva program soon and entering a Sober Living Community where she would live with three roommates, be randomly tested and under curfew.  Ryan, however, would not be allowed to live with her but would be allowed to visit.^[3] 

            Discussing her medication, Candace stated she was taking mood stabilizers, antidepressants, sleep medication, antipsychotic medication, medication for attention deficient disorder and antischizophrenia medication.  Candace also discussed hearing voices, noting the last time she heard them was several months ago, but during her sobriety.  Discussing her destructive behavior, Candace mentioned she attempted suicide twice in January 2005 and her last act of self-mutilation occurred in July 2005. 

            After considering the evidence and hearing argument of counsel, the court found Candace met her burden of showing changed circumstances.  However, the court denied the modification petition, finding reunification or reinstatement of services was not in Ryan's best interests. 

DISCUSSION

            Candace contends the court erred by denying her section 388 modification petition to vacate the scheduling of the section 366.26 hearing and to have Ryan returned to her custody, or alternatively, for further reunification services.  She asserts the granting of her petition is in Ryan's best interests. 

            Under section 388, a party may petition the court to change, modify or set aside a previous court order.  The petitioning party has the burden of showing, by a preponderance of the evidence, that there is a change in circumstances or new evidence and the proposed change is in the child's best interests.  (§  388; In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.)  Whether a previous order should be modified and a change would be in the child's best interests are questions within the sound discretion of the juvenile court.  (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Michael B. (1992) 8 Cal.App.4th 1698, 1704.)  The juvenile court's order will not be disturbed on appeal unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination.  When two or more inferences reasonably can be deduced from the facts, we have no authority to substitute our decision for that of the trial court.  (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) 

            When the court evaluates the appropriate placement for a child after reunification services have been terminated, its sole task is to determine the child's best interests.  (In re Stephanie M., supra, 7 Cal.4th at p. 320.)  In this context, the goal is to assure the child " stability and continuity."   (Id. at p. 317.) 

            The court here found Candace met her burden of showing changed circumstances.  However, the court further found it would not be in Ryan's best interests to return him to her custody or offer Candace further reunification services.  At the time of the hearing on the modification petition, the focus of the proceedings had shifted from family preservation to providing Ryan with a safe, stable permanent home.  (See In re Marilyn H. (1993) 5 Cal.4th 295, 309.)  The evidence showed that although Ryan enjoyed his visits with Candace and regarded her as a parental figure, he was doing well in his foster home where his caregivers provided much needed structure and a sense of security.  The social worker testified Ryan had a deeper and happier relationship with his caretakers than he did with Candace.  Further, Ryan has lived with his caregivers for two of his three years, never asked for Candace, and his caregivers are committed to adopting him.  Where, as here, " '  .  .  .  custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role.  That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interest of that child.'  [Citations.]"   (In re Stephanie M., supra, 7 Cal.4th at p. 317.) 

            Moreover, Candace has a significant history of substance abuse.  After successfully progressing through her case plan at the six-month review hearing, she relapsed and resumed drug use.  She also began self-mutilation and twice attempted suicide.  Although Candace has made very positive changes since her relapse, these changes have occurred in a heavily structured environment.  Candace still requires significant psychotropic medication and her stability has not been tested outside a controlled setting.  As the juvenile court recognized, stability and continuity for Ryan are

paramount.  The court acted within its discretion by denying Candace's section 388 modification petition.

DISPOSITION

            The order is affirmed. 

McCONNELL, P. J.

WE CONCUR:

O'ROURKE, J.

      IRION, J.

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

^[2]           Kiva is a nine-month to one-year residential drug and alcohol treatment program for substance abusing women and their children.  The program is based on the 12 Step social model of recovery and provides services that are founded on a strong understanding of the connections between trauma, substance abuse and co-occurring disorders.

^[3]             Candace stated she has alternative living arrangements that would allow Ryan to live with her if she regained custody.