Filed 1/31/18 In re T.W. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

S.W. is the mother of T.W., born in May 2014, and M.T.1, born in May 2015. M.T. is the father of M.T.1.[1] Mother and father separately appeal from orders (one as to each child), dated April 27, 2017, in which the juvenile court denied mother’s request, under Welfare and Institutions Code[2] section 388, for a reinstatement of reunification services, and terminated parental rights, thereby freeing both children for adoption. Mother seeks reversal of the termination orders, arguing that the juvenile court should have granted her section 388 request for reinstatement of her reunification services. Father presents no substantive argument, but contends that if mother is successful on her appeal and the orders terminating her parental rights are reversed, then the orders terminating father’s parental rights must also be reversed. Having considered mother’s substantive argument and finding no error in the court’s denial of her section 388 request for reinstatement of reunification services, we affirm.^[3]

FACTS[4]

I. Background

In July 2015, the Contra Costa County Children & Family Services Bureau (the Bureau) detained 14-month-old T.W. and two-month-old M.T.1 after receipt of a referral alleging that both parents might be abusing substances and could not adequately supervise the children. On July 21, 2015, the Bureau filed for each child a section 300 petition, later amended by the court, alleging, in pertinent part, that each child was at substantial risk of harm due to mother’s failure to provide adequate care and supervision. At a jurisdictional hearing in August 2015, the court found the children were persons described in section 300, subdivision (b) (failure to protect), after mother submitted on an amended allegation that she had failed to provide adequate care and supervision for the children.

At the September 16, 2015, dispositional hearing, the court declared each child a dependent of the court and placed them in the Bureau’s custody. The Bureau was directed to provide reunification services for mother. The court adopted the Bureau’s recommendations concerning mother’s case plan including supervised visits with the children with certain modifications regarding overnight visits. The court ordered that the Bureau could authorize consecutive overnight visits for a maximum of five days, provided mother made substantial progress in her case plan, and submitted to drug testing and there were no “dirty or missed tests.” Mother began unsupervised overnight visits with the children on February 26, 2016. However, on March 2, 2016, the date originally scheduled for the six-month review, the court ordered mother to submit to drug testing. Mother tested positive for THC and cocaine, which resulted in the immediate suspension of her unsupervised visits with the children. The six-month status review hearing was continued to March 30, 2016.

Before the continued six-month status review hearing, the Bureau filed a March 29, 2016, memorandum, which recommended that the children remain in out of home placement and that the court continue mother’s reunification services. The recommendation to continue mother’s services was based on the fact that the Bureau had recently learned mother had a substance abuse problem and the Bureau social worker opined that mother should be given an opportunity to address the issue. The Bureau reported mother had participated in supervised weekly visits with the children. At the March 30, 2016, hearing, the court continued mother’s reunification services until the 12-month status review hearing and granted mother supervised visits with the children. The court also ordered that the Bureau could authorize consecutive overnight visits for a maximum of five days, provided mother was “in treatment” and had at least six consecutive “clean” drug tests.

Before the 12-month status review hearing scheduled for September 2016, the Bureau filed a report, recommending that the court terminate mother’s reunification services and schedule a section 366.26 hearing to determine permanent placements for the children. In support of the recommendation, the Bureau social worker provided the court with the following information regarding mother’s current circumstances. Mother had participated in supervised visits with the children, and when mother was able to visit, the visits were generally good and it was evident mother loved the children. Nonetheless, mother had failed to comply with other aspects of her case plan, most specifically substance abuse treatment. Mother had entered an inpatient drug treatment program on March 10, 2016, and was discharged because of a positive THC test on April 1, 2016. She reentered the program on May 12 and was discharged in early July 2016 because of a physical altercation with another client in the program. As of September 8, 2016, mother had not entered another inpatient drug treatment program. Mother submitted to drug testing at the Bureau from March 18, 2016, to July 15, 2016. During that four-month period, mother tested “positive” or failed to show on six occasions. Mother also tested “negative” on 11 occasions, until a positive test for alcohol on August 24, 2016.

Following a contested 12-month status review hearing, held on September 12 and 15, 2016, the court adopted the Bureau’s recommendations to terminate reunification services and schedule a section 366.26 permanent planning hearing. In support of its ruling, the court explained that it had initially been optimistic that mother would engage in services and be able to reunify with the children, but that had not proved to be possible, in part, because mother had “failed to really engage meaningfully in services.” The court acknowledged that mother had visited the children regularly and behaved appropriately during the visits. The court also commended mother for trying to complete a residential drug treatment program on two occasions. But, the court found “concerning and alarming” mother’s failure to successfully complete a residential drug treatment program. The court also noted that despite mother’s participation in drug treatment, she showed no insight that alcohol was a substance she should not be consuming, and it required a large consumption of alcohol for a drug test to detect alcohol. The court scheduled a section 366.26 hearing for January 9, 2017.

II. Combined Section 388 Hearing and Section 366.26 Hearing

The section 366.26 hearing was held over the course of three days, January 9, 2017, April 19, 2017, and April 27, 2017. The court considered the Bureau’s report dated December 22, 2016, and its memorandum dated April 18, 2017. In the report and memorandum, the Bureau recommended termination of parental rights and that the children’s permanent plans should be adoption. At the time of the initially scheduled section 366.26 hearing in January 2017, the children had been with their foster care family for one and a half years. The prospective adoptive mother was the children’s godmother, and the prospective foster care parents wanted to adopt the children. The Bureau social worker reported on mother’s attempts to complete her case plan requirements. Mother had continued to regularly visit the children, and during those visits she was appropriate and consistent. In addressing her substance abuse problem, mother had entered a drug treatment program on March 10, 2016, and had been discharged on July 7, 2016. Mother reentered a drug treatment program from November 16, 2016, to December 7, 2016. Subsequently, on January 5, 2017, mother had enrolled in an outpatient drug treatment program and “[was] expected to exit on or before June 5, 2017.” On April 18, 2017, the Bureau social worker spoke with a drug and alcohol staff counselor at the outpatient drug treatment program attended by mother. The counselor reported that mother had been an active participant, but her attendance was sporadic due to mother’s employment. Mother had attended several groups, one group per day, for anger management, domestic violence, relapse prevention, women’s issues, and parenting. The program conducted frequent random drug tests, but a positive test was not grounds for discharge; and the results of drug tests were not provided to either the Bureau or the court because “there is no chain of command.” The counselor was in favor of mother receiving more reunification services.

Before proceeding to consider the Bureau’s section 366.26 recommendations, the court allowed mother to present evidence in support of her in-court request, under section 388, to modify the order terminating her reunification services and to reinstate reunification services. Mother described her efforts to address her substance abuse problem. She initially testified she last used any illegal substance in January 2016 and she last used marijuana in June 2016. She later testified she had been sober since August 25, 2016. Mother admitted that both before and after reunification services had been terminated she had entered but failed to complete inpatient drug treatment programs for reasons related to not following the rules and unrelated to any use of illegal substances. Mother had attended the two aborted inpatient drug treatment programs for approximately 90 days in total. Approximately two weeks after she was terminated from the last inpatient program, on January 3, 2017, she enrolled in an outpatient drug treatment, which she was attending at the time of the April 27, 2017, hearing. Mother participated for “one hour” each day for five days a week, in programs for drug treatment, counseling, and parenting classes. Mother expected to conclude her outpatient drug treatment program on July 3, 2017. When questioned regarding the outpatient program director’s report that mother’s attendance was “sporadic,” mother would not say her attendance was “sporadic.” However, she admitted she “usually miss[ed] like one or two classes every week, most likely one,” due to her work schedule. She further explained her absences resulted from her need to go to work although she informed the program director and her counselor of her need to leave on those occasions. Mother was not in danger of being dropped from the program. She had been drug tested three times since January 2017. She claimed she would be discharged from the program if she had a positive drug test, but she had not been discharged from the program. Mother also submitted a letter from the director of the outpatient program and a “NA/AA meeting sign-in” sheet, showing she had attended six meetings. Mother had another meeting slip but she had forgotten to bring it to court. Mother was working with a sponsor and she was currently on “step one” of the “narcotics anonymous steps.” Mother also described her attempts to address her diagnosis of long-term depression. Mother was taking medication and attending therapy. In 2016, she saw a therapist for three months but had to discontinue the therapy due to a lack of insurance. In January 2017, mother again began seeing a therapist at the outpatient drug treatment program. She saw her current therapist once a week for 30 minutes to an hour. Mother had not asked her current therapist to write a letter to the Bureau social worker. Mother also testified concerning her current employment, her current living conditions, and her visits with the children. Mother stated that during the reunification process, she had had unsupervised visits with the children for approximately two months, with the last time being in June 2016. The unsupervised visits had stopped because mother had “a dirty test” for “[m]arijuana and cocaine.” Since June 2016, all of the visits had been under supervision one hour every other week at the Bureau’s office.

Following argument by counsel, the court denied mother’s section 388 request to change a court order to provide for the reinstatement of reunification services. The court recognized there was certainly sufficient evidence that mother’s circumstances were “changing,” but there was no evidence of a change in circumstances that would warrant reinstatement of reunification services. The court further found there had been no showing that additional reunification services would be in the best interests of the children. By the time of the April 27, 2017, hearing, the children had been out of mother’s care for longer than they had been in her care; the case had begun in July 2015 (when T.W. was a little over one year old and M.T.1 was a little over two months old) and the children had been in foster care for almost two years due to the rather protracted proceedings. Thus, the court found that “the evidence” did not demonstrate that a change in the court’s orders would promote the best interests of the children “in light of the history and circumstances of these two particular” children. The court adopted the Bureau’s proposed section 366.26 findings and orders and terminated parental rights after finding, by clear and convincing evidence, that the children were likely to be adopted.

DISCUSSION

Mother contends the juvenile court erred when it denied her section 388 request seeking to reinstate reunifications services. She asserts that “changed circumstances existed and additional reunification services were in the children’s best interests.” We see no basis to set aside the court’s section 388 denial.

“Section 388 permits a parent to petition the [juvenile] court on the basis of a change of circumstances or new evidence for a hearing to change, modify or set aside a previous order in the dependency. The parent bears the burden of showing both a change of circumstance exists and that the proposed change [in the court’s order] is in the child’s best interests.” (In re Casey D. (1999) 70 Cal.App.4th 38, 47 (Casey D.).) Thus, “t is not enough for a parent to show [i]just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) Moreover, when a section 388 request comes late in the proceeding following the termination of reunification services, like in this case, “the parent[’s] interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point ‘the focus shifts to the needs of the child for permanency and stability’ (In re Marilyn H. [(1993)] 5 Cal.4th 295, 309) . . . .” (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) And, in fact, “there is a rebuttable presumption that, in the absence of continuing reunification services, stability in an existing placement is in the best interest of the child, particularly when such placement is leading to adoption by the long-term caretakers. ([Ibid.]). To rebut that presumption, a parent must make some factual showing that the best interests of the child would be served by modification.” (In re Angel B. (2002) 97 Cal.App.4th 454, 465.)

Mother argues she met her burden of showing changed circumstances and that additional reunification services would be in the children’s best interests. Her challenge to the court’s ruling is based on isolated portions of the documentary and testimonial evidence. However, our limited power to review requires us to “accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact.” (Casey D., supra, 70 Cal.App.4th at p. 53.) By the time the court considered mother’s section 388 request at the April 27, 2017, hearing, mother had been sober for only eight months and was in the midst of a drug treatment program and on “the first step” of a narcotics anonymous program, having previously failed to complete two drug treatment programs. The juvenile court commended mother, as do we, for her efforts to address her substance abuse problem. However, the juvenile court reasonably found that mother had not undertaken those efforts in time for the children to significantly benefit. By the time of the April 27, 2017, hearing, T.W. was just shy of the child’s third birthday and M.T.1 was just shy of the child’s second birthday. The children had been with their current foster care parents for one year and nine months. According to mother, except for a two-month period in 2016, she had not progressed beyond supervised visits with the children. The juvenile court was not required to grant mother’s section 388 request because she had a strong bond with the children as shown by her consistent and appropriate supervised visits. Rather, the juvenile court could reasonably find that granting mother’s request for additional reunification services would not promote the children’s best interests because it would necessarily delay the selection of permanent placements for the children to see if mother might be able to reunify with the children at some future time. (Id. at p. 47.) Mother’s attempt to reargue the evidence is not sufficient to justify setting aside the court’s ruling. Accordingly, we must uphold the court’s denial of mother’s section 388 request.

DISPOSITION

The appeals from the orders dated January 9, 2017, and the orders dated April 19, 2017, are dismissed. The orders dated April 27, 2017, are affirmed.

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Jenkins, J.

We concur:

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McGuiness, Acting P.J.*

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Siggins, J.

A151239/In re T.W.