In re Amanda G.

Filed 7/23/07 In re Amanda G. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from orders of the Superior Court of Los Angeles County. Sherri S. Sobel, Juvenile Court Referee. Affirmed.

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Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, and Owen L. Gallagher, Deputy County Counsel, for Plaintiff and Respondent.

_________

Appellant Jacqueline G. appeals from orders denying her petition under Welfare and Institutions Code section 388^[1] and terminating her parental rights to her daughter, Amanda G., under section 366.26. She contends that because her section 388 petition showed both significantly changed circumstances and that reunification was in Amandas best interest, the dependency court abused its discretion in denying her petition. She also maintains that the dependency court used an incorrect standard in evaluating and determining her petition. We find no error or abuse of discretion and affirm.

BACKGROUND

When Amanda G. was born in December 2005, the hospital staff informed the Los Angeles County Department of Children and Family Services (DCFS) that Jacqueline had tested positive for cocaine. DCFS already was familiar with Jacqueline and Amandas father, Eddie B.^[2] DCFS had removed all of Jacquelines previous 10 children, three of them also Eddies children, from her custody due to her long history of substance abuse as well as domestic violence problems with Eddie. The parents had not reunified with any of the 10 children and had not complied with earlier court orders. Both parents agreed to relinquish Amanda to Jacquelines sister. Because that sister, however, had violated court orders prohibiting unmonitored parental visits with Amandas older siblings, she was found unsuitable for permanent placement of Amanda.

On December 7, 2005, DCFS filed a section 300 petition based on Jacquelines positive drug test results and the parents past record with DCFS. At the detention hearing on the same date, both parents denied the allegations of the petition. The dependency court made a prima facie finding under section 300 that Amanda likely would face psychological or physical harm if returned to her parents and ordered her placed in foster care. Pursuant to section 361.5, subdivisions (b)(11), (b)(13), and (c), which permit the court to decline to order reunification services to parents who have failed to reunify with other children or have chronic drug problems and have resisted treatment, DCFS requested the court not to order such services. The court agreed with DCFS and denied reunification services, but it did order DCFS to offer both parents voluntary substance abuse and domestic violence counseling and drug testing and granted them monitored visits.

At the twice-continued jurisdictional hearing on February 7, 2006, Jacqueline testified that she had participated in a sober living program and parenting program in 2004 that taught her important skills for childrearing and maintaining sobriety. She admitted having had a drug problem in the past, but claimed that she had last used drugs willingly in May 2005, that she had voluntarily enrolled in and attended a drug rehabilitation program since Amandas birth, that since December 2006 she had tested negative on seven or eight drug tests, and that she only missed one test, due to transportation problems. She also reported that she was attending school for vocational training, and that her visits with Amanda were going well. On cross-examination, however, Jacqueline admitted that she tested positive for drugs at the hospital when Amanda was born, but she claimed that she only ingested the drugs to prevent police from finding them in her car.

DCFS again opposed providing either parent with reunification services. With regard to Jacqueline, DCFS based its opposition on her loss of 10 children to the dependency process, her failure to reform herself by the time of Amandas birth, and Amandas best interest. Amandas counsel agreed with DCFS. The court acknowledged both parents hopeful signs of progress but sustained the petition, found jurisdiction appropriate under section 300, subdivision (b), by a preponderance of the evidence, and found by clear and convincing evidence that Amanda would face a substantial risk of danger to her physical or emotional well-being if she were returned to either parent. Pursuant to section 361.5, subdivisions (b)(11), (b)(13), and (c), the court also found by clear and convincing evidence that both parents were ineligible for family reunification services based on their history of chronic drug abuse and loss of parental rights to Amandas siblings. The court granted the parents monitored visits once a week for at least an hour, with DCFS having discretion to increase the visitation if the parents maintained their sobriety. The court set a section 366.26 permanency hearing for June 6, 2006.

On May 19, 2006, Eddie filed a section 388 petition requesting modification of the courts orders to allow six months of reunification services based on changed circumstances. On May 24, 2006, Jacqueline filed a section 388 petition requesting either immediate return of Amanda to her custody or increased visitation with the goal of reunification. On the same day, DCFS filed a report recommending termination of parental rights and adoption. The report stated that almost since birth, Amanda had been placed with loving foster parents who were committed to adopting her. The DCFS monitor found Jacqueline and Eddie visited regularly and appropriately with Amanda, feeding and changing her. During a recent visit, however, Amanda had cried uncontrollably and only stopped crying when returned to her foster parents. Amandas bonding with her foster parents made it harder for her to adjust to her biological parents, and she was irritable after parental visits.

On May 24, the court set the hearing on the parents petitions and on permanency planning for July 18, 2006. On the latter date, Jacqueline filed another section 388 petition requesting reunification services and unmonitored visitation. She attached documentation showing her voluntary participation in drug counseling, proof of negative drug tests, and participation in a job training program. In August 2006, she submitted additional documentation supporting her requests.

At the July 18 hearing, the court admitted a DCFS interim review report responding to the parents section 388 petitions. The report stated that Jacqueline had been late to several visits with Amanda and had not attended visits scheduled on June 26 and July 3, 2006. Also, after notifying DCFS that Jacquelines attendance at her drug rehabilitation and counseling program was inconsistent, the program discharged her on June 29, 2006. On July 11, 2006, Jacqueline requested that DCFS refer her to an alternate program. She had attended 12 and missed seven of her 52 required domestic violence counseling sessions, had not yet completed even a quarter of the court-ordered programs, and had nowhere to live. DCFS still recommended termination of parental rights and adoption.

The sections 388 and 366.26 hearing was continued several times, then resumed on October 12 and 19, 2006. DCFS filed an updated status report, and the caseworker testified and reiterated the problems identified in earlier reports, including Jacquelines ongoing problems with case plan compliance. The caseworker reported that Amanda still cried during parental visits, although the parents relationship with Amanda was improving. The caseworker acknowledged that she was not aware of any evidence that Jacqueline had used drugs during Amandas dependency. Jacqueline testified that her visits with Amanda were going well and attributed Amandas earlier crying and discomfort during visits to infant colic. She described the various programs and counseling she had attended, testified that she had been sober for almost a year, discussed her plans for employment as a legal assistant, and explained her discharge from her first program as resulting from the program giving her insufficient time to respond to the initial warning letter that her attendance was inconsistent.

In closing arguments, counsel for Eddie and Jacqueline emphasized how remarkably their clients had turned their lives around, even without DCFS reunification services, showing a true change of circumstances under section 388. Although counsel for Amanda praised both parents for their efforts at reforming themselves, he concluded that Amandas best interest required denying the parents petitions, terminating parental rights, and allowing Amanda to move ahead toward adoption. Counsel for DCFS agreed.

The dependency court recounted the parents earlier lengthy, unsuccessful history with the dependency process but noted the significant recent progress Jacqueline and Eddie had made. Despite this progress, however, the court found that there was no change in circumstances^[3] and that it would not be in Amarndas best interest to delay permanent placement. The court noted that there was no substantial probability that it could return Amanda to either parents custody by the 12-month detention date, the finding required to justify a six-month extension beyond the normal six-month deadline for termination of reunification services in cases involving children under three years old, or even by a date six months beyond that. Further, it was not in Amandas best interest to delay her permanent placement awaiting the possibility that her biological parents could complete their transformation and provide her a stable, suitable home. So despite finding positive changes in the parents lives, the court denied both parents section 388 petitions for reunification services. The court then found Amanda adoptable and terminated parental rights under section 366.26. Jacqueline timely appealed.

DISCUSSION

Jacqueline contends that the dependency court abused its discretion when it denied her section 388 petition and terminated her parental rights. We disagree.

A parent who petitions to modify an existing dependency court order under section 388 must show, by a preponderance of the evidence, both changed circumstances and that the modification would be in the childs best interest. ( 388; Cal. Rules of Court, rule 5.570(a), (h); In re Casey D. (1999) 70 Cal.App.4th 38, 47, 48.) A change of circumstances must be of such significant nature that it requires a setting aside or modification of the challenged prior order. (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485.) A trial court has discretion in determining changed circumstances and the childs best interest, and a reviewing court will not disturb the trial courts decision unless the trial court abused its discretion by making an arbitrary, capricious, or patently absurd determination that exceeds the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

Although at the hearing on her section 388 petition, the dependency court and counsel for Amanda and DCFS all acknowledged and commended the significant progress Jacqueline had made toward rehabilitation, given Jacquelines long and unfortunate prior history with the dependency system, her mere 10 months of sobriety in relation to her many years of drug use, and her recent problems with program compliance, including her discharge from her first program, the court did not abuse its discretion in finding no changed circumstances. The court expressed no doubt that Jacqueline was then clean and sober and working on making her life better as well. In so doing, the court implicitly characterized Jacquelines self-reform as a work in progress, not yet completed. Section 388 requires changed, not merely changing, circumstances. (See In re Casey D., supra, 70 Cal.App.4th at p. 49.)

Moreover, even if the court had found changed circumstances as to Jacqueline, it would not have abused its discretion by finding that Jacqueline had not shown by a preponderance of the evidence that granting her reunification services would be in Amandas best interest. The court appropriately focused on Amandas strong and immediate need for stability (In re Casey D., supra, 70 Cal.App.4th at p. 49), which neither parent could yet provide or was likely to be able to provide by the 12-month deadline, or even within six months after that.^[4] Considering all the facts, the court did not make a determination beyond the bounds of reason in finding that reunification services were not in Amandas best interest.

Jacqueline further contends that by considering whether there was a substantial probability of returning Amanda to her parents within 12 or 18 months, the dependency court inappropriately applied standards applicable only to sections 361.5, subdivision (a)(2) and 366.21, subdivision (e), to her section 388 petition. We disagree.

The dependency system, recognizing the particular fragility of infants and toddlers, normally allows parents (even those granted reunification services) a briefer window of opportunity in which to reunify than parents of older children. For parents who receive reunification services, the statutory deadline for reunification with children under three years old is six months, with the possibility of an extension to 12 months only if the court finds a substantial probability of return within that period, as against 12 months extendable to 18 months for older children. (See 361.5, subds. (a)(1)-(2); section 326.21, subds. (e)-(g).) Thus, the Legislature has stated a policy that infants and toddlers have even more pressing needs for permanency and stability than older children. (See In re Abraham L. (2003) 112 Cal.App.4th 9, 13.) It was entirely appropriate for the dependency court to consider the normal statutory deadlines and the Legislatures policy in determining that additional reunification services were not in Amandas best interest.

Jacqueline maintains that the substantial-probability-of-return standard is not relevant to a section 388 petition, particularly given that she was never offered any reunification services. Any dependency statute, however, must be viewed in the context of the dependency system as a whole. (In re Marilyn H. (1993) 5 Cal.4th 295, 307.) That dependency system is designed to ensure that infants and toddlers have stable homes within 12 months, older children within 18 months. Parents who receive reunification services are subject to these general deadlines. If parents do not receive reunification services, termination of parental rights is rebuttably presumed. (See In re Marilyn H., supra, 5 Cal.4th at p. 310.) To interpret the statutory deadlines for provision of reunification services to apply to parents who are entitled to receive services, but not those who are not, would produce absurd and unacceptable results.

Jacqueline argues, correctly, that the section 388 petition process offers a constitutionally necessary escape mechanism from the normal process and deadlines of the dependency system. (See In re Kimberly F. (1997) 56 Cal.App.4th 519, 522.) But section 388 does not render the deadlines entirely irrelevant or give parents unlimited time in which to reunify. As we have discussed, pursuant to section 388, a parent is required to show both already changed, not changing, circumstances and that modification of a prior order would be in the childs best interest, and after reunification services have ended, the childs interest in prompt permanency and stability is the critical factor in determining its best interest. (In re Marilyn H., supra, 5 Cal.4th at pp. 309-310; In re Celine R., supra, 31 Cal.4th at p. 53.) The court was aware of and considered the possibility of granting up to eight months of reunification services; because Jacquelines circumstances were changing but not changed, it decided that such services were not likely to be successful soon enough and that it was not in Amandas best interest to grant them. The court acted within its discretion in doing so.^[5]

DISPOSITION

The orders are affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

MALLANO, Acting P.J. JACKSON, J.^*

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

^[2] Eddie, who is not a party to this appeal, filed a separate appeal that we decided in DCFSs favor. (In re Amanda G. (Mar. 26, 2007, B194548) [nonpub. opn.] Eddie will be mentioned in this opinion only incidentally.

^[3] Although the court at one point stated, The court finds that, while there may be changed circumstances, it is not in Amandas best interest to provide reunification services for the next 60 days or even for the next eight months, we note that this elliptical statement is different from a clear, explicit finding of changed circumstances, and that the courts other statements, in context, including statements regarding both parents need for additional rehabilitation, show at most a finding of changing, not changed, circumstances as to Jacqueline for purposes of section 388. See discussion infra. In the absence of a clear statement of findings, we presume on appeal that the trial court found all facts necessary to support the judgment. (See Schubert v. Reynolds (2002) 95 Cal.App.4th 100, 104.)

^[4] After reunification services have been terminated, or were never granted, and a section 366.26 hearing has been set, the primary focus of dependency proceedings shifts from parental reunification to the childs need for stability and permanency (In re Marilyn H. (1993) 5 Cal.4th 295, 310), and a court must consider the strong legislative preference for adoption from that point onward. (In re Celine R. (2003) 31 Cal.4th 45, 53.)

^[5] Jacqueline also contends that if we were to reverse the order terminating Eddies parental rights, then the termination order should also be reversed as to her. Because we already affirmed that order as to Eddie, we need not further address Jacquelines argument on this issue.

^* (Judge of the L. A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.)