Filed 10/13/17 In re D.V. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from orders of the Superior Court of San Diego County, Michael Imhoff, Commissioner. Affirmed.

Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant N.R.

Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant O.V.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.

At a six-month status review hearing, the juvenile court terminated reunification services for N.R. (Mother) and O.V. (Father) and set a permanency planning hearing for their minor sons, D.V. and J.V., who had earlier been placed in foster care. Mother filed a petition under Welfare and Institutions Code section 388,[1] requesting that the court modify its order by placing the children with her or by reinstating her reunification services. The juvenile court found Mother met her burden of showing changed circumstances, but had not met her burden of showing modification was in the children's best interests. The court terminated parental rights and selected adoption as the children's permanent plan. The parents appeal only the juvenile court's denial of Mother's section 388 petition.[2] We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Petition and Initial Detention

On October 28, 2015, the San Diego County Health and Human Services Agency (Agency) filed petitions on behalf of newborn J.V. and 19-month-old D.V., alleging both J.V. and Mother tested positive for methamphetamine at J.V.'s birth. Mother initially denied drug use, but later admitted to using methamphetamine during pregnancy. Although Mother "could not provide a specific time frame" for her drug use, Father told a social worker she was already using methamphetamine when he met her about two and a half years earlier. Father also admitted to a two-year history of methamphetamine use, despite it being a violation of his probation conditions stemming from a prior burglary conviction. The Agency attempted to engage the parents in voluntary services for substance abuse, but they were not cooperative.

On October 29, the juvenile court ordered J.V. detained in foster care, and D.V. detained in the parents' home. The court ordered liberal supervised visitation between the parents and J.V., and authorized referrals for the parents to the court's substance abuse specialist.

Amended Petition, Detention, and Jurisdiction/Disposition

The Agency's November 19 jurisdiction/disposition report stated the parents had failed to comply with several requests to drug-test. Despite having a referral to the Family Recovery Center (FRC), Mother still had not called. Father tested positive for methamphetamine and amphetamine on November 3. As of the Agency's report, the parents had not visited J.V. in foster care. The Agency recommended that J.V. remain in foster care, D.V. remain detained with the parents, and the parents continue to receive services for their substance abuse. The court set a contested adjudication and disposition hearing.

In the meantime, on December 3, the Agency filed an amended petition on behalf of D.V. and obtained a protective custody warrant for him, resulting in his placement in foster care. Mother had begun the intake process at FRC on November 17 and 18, but tested positive for amphetamine and never returned. When a social worker made an unannounced visit to the parents' home on November 25 and requested that the parents drug-test, both parents admitted the results would be positive. Mother had visited J.V. twice in foster care.

On December 4, the court ordered D.V. detained in out-of-home care. A few weeks later, he was placed in J.V.'s foster home.

The Agency's January 1, 2016 jurisdiction/disposition report stated that Mother began attending FRC after D.V.'s removal. Father also began substance abuse treatment at the McAllister Institute (McAllister), but his attendance was " 'not good.' "

In a January 26 addendum report, the Agency advised that Mother had tested positive for amphetamine seven times between December 23 and January 15. Mother's FRC counselor characterized the amphetamine levels as " 'extremely high,' " indicating Mother was " 'using daily.' " FRC referred Mother to McAllister's detox program and put her on the waiting list for FRC's residential treatment program. Father was discharged from McAllister due to noncompliance. The parents were inconsistent in their visitation with the children—sometimes they were late, sometimes they were no-shows.

In a February 23 addendum report, the Agency reported Mother had tested positive again for "extremely high levels" of amphetamine. Mother claimed she was calling McAllister daily to check for availability, but her FRC counselor doubted this claim inasmuch as she suspected Mother would already have been admitted if she had been calling every day. Mother's attendance at FRC was sporadic, and she did not comply with several requests to drug-test. Nevertheless, Mother's counselor did not want to discharge her " 'because she needs extreme help.' " The parents' visitation continued to be inconsistent. The caregiver reported developmental concerns with the children, and the Agency advised that they had upcoming Developmental Screening and Enhancement Program (DSEP) evaluations due to "concerns in the areas of Developmental and Behavioral areas."

At the February 29 jurisdiction/disposition hearing, the juvenile court sustained the petitions, declared the children dependents, and ordered them placed in foster care. The court was "pleased to hear that Mother is at [FRC]," but cautioned that "Mother does need a great deal of assistance to understand how truly devastating the impact of drugs [has been] on her life and now that the children have been exposed to it as well." The court ordered liberal supervised visitation, and set a six-month status review hearing for August.

Six-month Status Review

In its August 19 six-month status report, the Agency advised that Mother had not complied with seven requests to drug-test between April and August, and admitted to using methamphetamine in March, May, and June. She was admitted to the FRC residential treatment program, but left in March after three days. She began counseling at McAllister in June, but was discharged due to nonattendance. Mother attended a few outpatient treatment sessions at FRC in September, but was discharged for noncompliance. Mother's FRC counselor was concerned about her "well-being and physical health, as she looked very thin and frail."

Father also failed to make progress in substance abuse treatment. He failed to comply with several requests to drug-test, and admitted to using methamphetamine. He was arrested for burglary in September.

Supervised visitation remained sporadic, with "several missed visits." When visits did occur, they were generally positive.

Regarding the children's development, the Agency reported D.V. was a client of the San Diego Regional Center (Regional Center), and was assessed as having "Developmental Delay." He was receiving speech therapy and physical therapy. His DSEP assessment also revealed development and behavior concerns: "In the areas of Development, he scored with Concern in the areas of Communication, Gross Motor, Fine Motor, Problem [S]olving and Socio-Individual. In the areas of Behavior, he scored with Concern in being Emotionally Reactive, Anxious/Depressed and Withdrawn, and Socio-Emotional Concerns."

J.V.'s DSEP assessment also revealed development and behavior concerns: "In the area of Development, he was found to have concern with Gross Motor, Fine Motor and Problem Solving. In the area of Behavior, he was found to have concern with Socio-Emotional." J.V. was receiving massage and physical therapy.

Based on (among other things) the parents' lack of progress and the children's "developmental delays [and] behavioral concerns," the Agency concluded reunification was not in the children's best interests. The Agency recommended the court terminate reunification services and set a permanency planning hearing under section 366.26.

At the October 5 six-month status review hearing, the court found the parents had made no progress in their treatment. The court terminated the parents' reunification services and set a section 366.26 hearing.

Section 366.26 Report

The Agency's January 18, 2017 section 366.26 report recommended the court terminate parental rights and select adoption as the children's permanent plan. The children's current caregivers were not interested in adopting them, but the Agency found the boys to be adoptable and had identified prospective adoptive parents who successfully completed an adoptive home study. However, the Agency wanted "to rule out relatives before placing the children in a prospective adoptable home."

Regarding the children's development, the Agency reported D.V. was still "struggling developmentally with communication, problem solving, and socio-individual areas," and "behaviorally struggling with emotionally reactive, anxious/depressed/withdrawn concerns." He was still a client of the Regional Center, and was receiving in-home speech therapy through the DSEP program. The DSEP was in the process of implementing further services for D.V.

As for J.V., a developmental evaluator at Rady Children's Hospital advised the Agency that although J.V. had average cognitive, language, and motor skills, he nevertheless "had a complex developmental and psychosocial history secondary to his exposure to methamphetamines and substance abuse by both biological parents." Therefore, the evaluator "recommended further developmental monitoring thru [DSEP] for potential concerns." The Agency reported that Mother was aware of neither "the developmental and emotional needs of the children," nor "the current services . . . her children [were] receiving."

The parents' visitation was inconsistent, with many canceled visits and no-shows. When visits did occur, they were generally positive. However, during some visits, D.V. called the caregiver "mama," and both boys looked to her or the supervising social worker for affirmation. Neither boy had difficulty separating from the parents at the end of visits.

The Agency stated the children's relationship with the parents did "not rise to the level of a parent-child relationship," and the children would suffer no detriment if parental rights were terminated. Further, the children were "at a critical [stage] of their development and need[ed] close monitoring and assistance." The Agency opined adoption would provide the "children with a sense of permanency and stability."

Mother's Section 388 Petition

On February 28—the date initially set for the section 366.26 hearing—Mother filed a petition under section 388 requesting that the court "reinstate reunification services or return both children to Mother's custody." As changed circumstances, Mother stated she had enrolled in a residential substance abuse treatment at FRC in October, and was enrolled in the drug court program. FRC reported Mother tested positive for amphetamines upon her enrollment in October and again on December 4, but otherwise tested clean. The court continued the section 366.26 hearing.

The Agency opposed Mother's request, arguing her circumstances had not changed, but were merely changing. Letters from FRC and drug court indicated that although Mother was making progress, she was only in the second of three phases at FRC, and the second of four phases in drug court.

A social worker reported that Mother struggled with redirecting the children during supervised visits, and lacked insight regarding the level of care and services they required. However, the Agency acknowledged that Mother's FRC counselor stated Mother "is great with the children in the facility and can only imagine how she is with her [own] children." The counselor also said she believed Mother could parent and provide for her children, "but would need assistance (i.e. financial, living, and food) through government/community programs."

The Agency still recommended adoption as the children's permanent plan. The Agency wanted to place the children with the paternal grandmother following a transition plan of weekly visits, subject to successful completion of a pending relative home evaluation.

The court found Mother made a prima facie showing on her section 388 petition, and set the matter for an evidentiary hearing the same day as the continued section 366.26 hearing.

Combined Sections 388/366.26 Hearing

The court heard Mother's section 388 petition on April 11. Mother testified she had been living at FRC's residential treatment program for about six months, and planned to live there another six months. She acknowledged she had previously been unsuccessful with FRC's treatment, but said she "feel[s] ready" this time. Mother said the children could be placed with her at FRC, though none of the three women with whom she shared living accommodations had children living with them. Mother testified that although she knew D.V. needed therapy, she did not know what kind he needed. Similarly, she admitted she did not know what services J.V. needed. Mother also did not know whether the children had any behavioral problems. Mother said her knowledge of the children's need for services was limited because the caregiver told her she (the caregiver) was not allowed to discuss it with Mother.

After hearing argument from counsel—including the children's counsel, who asked the court to deny the petition—the juvenile court denied Mother's petition. Although the court found Mother satisfied her burden of showing changed circumstances, the court found she had not met her burden of showing a modification was in the children's best interests. In denying Mother's request to place the children with her, the court explained Mother lacked insight into the children's particular needs:

"She is still having supervised visitation. Each of the boys ha[s] documented needs with regard to developmental concerns as well as other concerns. [¶] The mother would need to be far more involved in recognizing the exact needs of the children and be able to demonstrate she can meet those needs."

In denying Mother's request to reinstate reunification services, the court found Mother had not established that her "current progress is sufficient to override the need for the children to have permanency." The court explained:

"[T]his is a difficult balancing. The mother has shown very good motivation and progress within context over the last several months. [¶] Both of the boys are very young. . . . [¶] Given all of the factors before the Court, in doing that balancing, the Court would have to conclude that the best interests of the children lie more in giving them permanency than extending the reunification period and delaying the concept of permanency for them."

Turning to permanency planning, the court found the children were likely to be adopted and no statutory exceptions applied. The court terminated parental rights and referred the children to the Agency for adoptive placement.

The parents appeal the denial of Mother's section 388 petition.

DISCUSSION

I. Relevant Legal Principles

"A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child." (In re A.A. (2012) 203 Cal.App.4th 597, 611 (A.A.).) "The parent bears the burden to show both a legitimate change of circumstances and that undoing the prior order would be in the best interest of the child." (Id. at pp. 611-612.)

"After the termination of reunification services . . . , the goal of family reunification is no longer paramount, and ' "the focus shifts to the needs of the child for permanency and stability" [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. [Citation.] A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child.' " (In re K.L. (2016) 248 Cal.App.4th 52, 62.)

A petition under section 388 "is addressed to the sound discretion of the juvenile court, and its decision will not be overturned on appeal in the absence of a clear abuse of discretion." (A.A., supra, 203 Cal.App.4th at p. 612.)

II. Analysis

We find no abuse of discretion in the juvenile court's determination that Mother did not meet her burden of showing it would be in the children's best interests to place them with her or to order reinstatement of her reunification services.

Regarding placement, the juvenile court based its determination on the fact Mother never progressed beyond supervised visitation, and the finding she lacked insight into the children's developmental needs. Neither basis indicates an abuse of discretion.

Although visits were generally positive, the record shows (1) Mother sometimes needed assistance redirecting the children, (2) D.V. sometimes called the caregiver "mama," (3) the children sometimes looked to their caregiver or social worker (rather than to Mother) for affirmation, and (4) the children had little difficulty separating from the parents at the end of visits. We are unpersuaded by Mother's argument that the court's concern about supervised visits is unwarranted in light of the fact the children will initially be placed with her in the structured, residential environment at FRC. As a practical matter, Mother testified in April that she intended to remain at FRC for an additional six months—that is, until October. Thus, despite our efforts to expeditiously hear Mother's appeal, she likely either will have already left FRC by the time this opinion is filed, or she will be preparing to leave imminently. In any event, the fact her visitation never progressed beyond being supervised speaks not only to the children's immediate safety needs, but also to the lack of progress Mother achieved during the dependency.

Regarding Mother's lack of insight into the children's developmental concerns, the record shows—contrary to Mother's assertion—both children had ongoing developmental and behavioral concerns. Indeed, J.V.'s doctor expressly stated J.V. would require monitoring "until age [three]" (he was about 18 months old as of the hearing), and the social worker opined the children were "at a critical [stage] of their development and need close monitoring and assistance." Mother's claim that the caregiver prevented her from learning the extent of the children's needs is unavailing—she does not explain why she could not have learned this information from the social worker. Moreover, by basing its ruling on Mother's lack of insight, the court appears to have found her claim not credible. We will not second-guess that credibility determination.

Turning to reinstatement of Mother's reunification services, we likewise find no abuse of discretion. The court balanced Mother's "several months" of "show[ing] good motivation," against the children's youth and need for permanency. Although Mother commendably had been sober for about five months in a structured residential setting, this followed a nearly four-year history of substance abuse. Moreover, Mother used drugs throughout the dependency and had several failed attempts at rehabilitation. The court could properly consider the relative brevity of Mother's sobriety in evaluating the children's best interests. (See, e.g., In re Cliffton B. (2000) 81 Cal.App.4th 415, 423 [" 'It is the nature of addiction that one must be "clean" for a much longer period than 120 days to show real reform.' "].)

As for the children's youth and need for permanency, D.V. was about three years old as of the hearing and had spent nearly half of his life in foster care; J.V. was about 18 months old and had spent his entire life in foster care. The paternal grandmother was willing to adopt them, had begun transitional weekly visits, and was undergoing a relative home assessment, which the court found was likely to be approved. An Agency social worker opined the benefits of permanency and stability afforded by adoption outweighed the benefit of maintaining a parental relationship. The juvenile court was entitled to find the social worker's opinion credible and to give great weight to her assessment. (In re Casey D. (1999) 70 Cal.App.4th 38, 53.)

Mother argues the court erred in focusing on the children's need for permanency because they were going to be re-placed with someone other than their current caregiver in any event. However, the court could reasonably have been concerned that placing the children with Mother would result in an additional re-placement if she were to relapse, thus further delaying permanency for these young boys.

In sum, the juvenile court did not err in finding Mother did not meet her burden of showing it was in the children's best interests to place them with Mother or to reinstate her reunification services.

DISPOSITION

The orders are affirmed.

HALLER, Acting P. J.

WE CONCUR:

O'ROURKE, J.

AARON, J.