Filed 9/18/18 In re M.H. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from orders of the Superior Court of Madera County. Thomas L. Bender, Judge.

Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of County Counsel, Miranda P. Neal and Derek Walzberg, Deputy County Counsel, for Plaintiff and Respondent.

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Introduction

On February 1, 2016, a dependency petition was filed by the Madera County Department of Social Services (department) pursuant to Welfare and Institutions Code section 300[1] alleging Valerie B. (mother) placed her minor children at substantial risk of suffering physical harm due to her mental illness and drug abuse, causing mother to suffer delusions and making her incapable of properly caring for her children. The three minors who remained subject to the dependency are Reyna F., A.R., and M.H., who were, respectively, seven years old, four years old, and 18 months old when the petition was filed.

At the disposition hearing on December 15, 2016, the juvenile court terminated reunification services for mother, finding her past drug abuse history made the bypass provisions for reunification services in section 361.5, subdivision (b)(13) applicable. The court also applied the bypass provisions to M.H.’s biological father, Shawn H. (father). On October 26, 2017, the juvenile court conducted a joint hearing on permanency planning pursuant to section 366.26 and mother’s and father’s petitions to modify the juvenile court’s prior order ending her reunification services pursuant to section 388. The juvenile court denied mother’s petition as to all three minors, found adoption as the permanent plan for Reyna F. and A.R., found the beneficial parent-child exception to the preference for adoption did not apply, and terminated mother’s parental rights to Reyna F. and A.R.[2] The permanency planning hearing was continued for the department to comply with the Indian Child Welfare Act (ICWA).

On appeal, father contends the juvenile court abused its discretion in denying his section 388 petition to provide him with additional service so he could reunify with M.H. We find no error and affirm the juvenile court’s findings.

Current Dependency Action

On February 1, 2016, the department filed a petition pursuant to section 300, alleging mother placed her four minor children at substantial risk of suffering serious physical harm as a result of mother’s mental illness—paranoid schizophrenia with psychotic features—caused by mother’s refusal to take her prescribed medication. This in turn rendered mother incapable of caring for her children. In addition to mother’s refusal to take her prescribed psychotropic medication, she still used methamphetamine and marijuana, which exacerbate mother’s delusions and hallucinations. Further, mother suffered delusions and was under the influence illegal drugs resulting in dangerous actions in the presence of her children. Father was designated as M.H.’s alleged father in the petition. On February 2, 2016, the juvenile court found a prima facie showing had been made that M.H. and his siblings came within the court’s jurisdiction pursuant to section 300.

In early March 2016, father filed forms JV-225 and JV-505 asserting he was M.H.’s father. Father indicated he was incarcerated with a release date later in March and his relationship with mother was not intact. In July 2014, father signed a declaration of paternity for M.H. Father was provided with weekly visits with M.H. while incarcerated and twice weekly supervised visits of an hour each after his release.

Father had prior criminal arrests for inflicting corporal injury on a spouse or cohabitant, violating probation and parole, possessing a controlled substance, possessing drug paraphernalia, theft, burglary, receiving stolen property, driving without a valid driver’s license, and interfering with a peace officer. Father failed to keep an appointment for an addiction severity assessment. The allegations in the petition were sustained against mother on April 8, 2016. In June 2016, the department recommended father’s parental status be elevated to presumed father of M.H.

Father requested services and placement of M.H. with him. The social worker believed placement with father would be detrimental to M.H. because father had recent criminal and substance abuse history. Father also had prior child welfare history and was homeless. The social worker recommended services to address father’s homelessness, substance abuse, mental health counseling, and parenting education. The department initially recommended family reunification services be provided to father.

On September 20, 2016, father was arrested after hitting his 15-year-old daughter in the face with the back of his hand and slamming her head into a door frame. Mother was involved in the incident, telling the young woman mother was going to “whoop her ass.” Mother was also seen smoking methamphetamine. Reporting witnesses recanted their description of father hitting his daughter and told investigators it was mother who had hit her. Father was also seen smoking methamphetamine during the incident. Father did not cooperate with the department’s request to drug test, failing to test in September and twice in October 2016.

In an addendum report prepared in late October 2016, the department noted father was ordered to attend and participate in substance abuse counseling services through the probation department in 2014 after a felony drug conviction and failed to do so. Father was referred by the probation department for a drug abuse assessment on July 17, 2014, and failed to attend the appointment. Father further failed to attend rescheduled appointments in January and May 2015. Father was not receiving court-ordered substance abuse treatment and resisted all court-ordered treatment for his substance abuse problem. Father admitted to a social worker in February 2015 that he failed to fulfill his obligations due to continued drug use. Father continued to use drugs, including methamphetamine, in hazardous situations. Father experiences withdrawal symptoms when not using drugs and has built up a tolerance to the effects of methamphetamine.

Father has a history of extensive, abusive, and chronic use of drugs. In late October 2016, father reported he had a medical need for cannabis and had last used it two days prior but was unable to produce a physician’s prescription. The department was concerned father had made no effort to treat his substance abuse issues, failed to drug test, and was seen smoking methamphetamine in the presence of his teenaged daughter. The department determined it would seek to bypass services for father pursuant to section 361.5, subdivision (b)(13) due to father’s chronic resistance to prior court-ordered drug treatment. At the conclusion of the disposition hearing that began on December 1, 2016, and concluded on December 15, 2016, the juvenile court denied father reunification services pursuant to the bypass provisions in section 361.5, subdivision (b)(13).

Section 388 Petition

On April 14, 2017, father filed a petition pursuant to section 388 seeking to modify the juvenile court’s prior orders concerning family reunification services. Father alleged he had participated in and completed a parent education class, participated in a program of substance abuse counseling, and consistently visited M.H. weekly. Father stated he and M.H. were bonded and father could provide for M.H.’s needs. Father requested reunification services.

In its response to father’s petition, the department continued to recommend father be bypassed for additional reunification services due to his extensive history of drug use. Father had felony convictions for possession of a controlled substance and possession of a controlled substance for sale dating back to 2004. The department reiterated father’s recent history involving a conviction for a drug offense and his failure to obtain substance abuse services after being given multiple opportunities to do so. Father was arrested in July 2016 for possession of drug paraphernalia and in September 2016 for possession of methamphetamine and drug paraphernalia. Father was also involved in another dependency case for slapping his teenaged daughter. The department noted father failed to provide information about the parenting program he was attending. Despite multiple attempts to talk to father concerning the parenting class, the social worker could not contact father who was not updating his personal information. One address given by father to the social worker did not exist.

In June 2017, the social worker spoke to a substance use disorder counselor to discuss father’s progress in the program. The counselor explained father was placed on a behavioral contract on June 5, 2017, as a result of his failure to attend the program for two weeks, which could have resulted in discharge from the program for nonparticipation. Father attended classes wearing clothing with beer logos and suggestive of drug use, which were not allowed in the program. Father began attending drug treatment classes in January 2017 and should have completed the program in July 2017. However, due to missed class sessions, he could not complete the program until August of 2017. On six occasions between September 2016, and January 2017, father failed to test, which meant he was presumptively positive for using drugs. On five occasions between February 2017, and June 2017, father failed to provide hair follicle samples, meaning tests were considered presumptively positive.

Father’s visits with M.H. were reduced from twice to once a week because father only visited about half the time. Between January and June 2017, father missed six visits with M.H.

The social worker’s assessment was that father had a demonstrated history of substance abuse, criminal involvement, and parenting instability. Also, he had not made significant progress in his drug treatment program and was likely not attending parenting classes. The social worker noted father had filed a section 388 petition but bore the burden to prove changed circumstances and that providing reunification services was in M.H.’s best interests. The social worker found father’s statement that he attended a drug treatment program to be only marginally true and his assertion of taking parenting classes to be unverified. Father’s failure to drug test created the strong inference he was continuing to use drugs. The social worker found M.H.’s need for stability and permanence was in his best interests rather than relying on a vague hope father would begin to meaningfully participate in services to address his extensive and chronic substance abuse problems. The department recommended the juvenile court deny father’s petition.

The department prepared a section 366.26 report on behalf of M.H. in June 2017. The social worker noted father’s reduced visitation from twice a week to once a week due to his inconsistency and his missed six visits with M.H. since January 2017. Father brought snacks to the visits and played appropriately with M.H. The social worker noted father did have a relationship with M.H., but the relationship resembled a friendship rather than a parental relationship. The relationship M.H. had with father did not outweigh M.H.’s best interests in stability and the permanency of adoption. At the time of the report, M.H. was two years old and described as handsome, outgoing, loving, and adoptable. His caregivers wanted to adopt him. A report from August 2017 also noted M.H. was adoptable. The department recommended M.H. remain a dependent of the court with a permanent plan of adoption.

Hearing on Section 388 Petition and Permanency Planning

The hearing on the section 388 petition and permanency planning was held on September 7 and 28, 2017, and on October 26, 2017. Father testified he had been arrested and in custody since August 29th on several allegations of driving without a license and without insurance. Father said he completed programs during the two years he was in custody until March of 2016 when he was released. While father was incarcerated, he completed the Madera County Correctional Department treatment program as well as programs for substance abuse, parenting, drug, alcohol, anger management, and life skills. Between March 2016 and September 28, 2016, however, father had not completed any other services. Father wanted additional services. Father said he was currently attending drug and alcohol classes and parenting classes in Fresno. Father asserted that he was doing what the department asked of him. Father explained he had a very good relationship with M.H., and M.H. recognized him as his father.

Father was participating in substance abuse aftercare with Vicky Teran at the probation department in Madera, as well as participating in the AOD (alcohol and other drugs) and Celebrate Recovery programs outside of his probation requirement. Father said he drug tested for probation whenever they asked, at least twice per week, and did not believe he had a drug issue. Father began retaking classes with Vicky Teran, which included drugs and alcohol, anger management, life skills, and work force on September 18, 2017, and would graduate on November 17, 2017.

Father said he lived with M.H. and mother until he was later incarcerated. Father had convictions for possession of narcotics. Father said he provided for M.H. before his incarceration and was gainfully employed at Madera Speedway. During visits with M.H., father would play with him at the park, play bowling games, bring lunch and snacks, bring toys and coloring books, color with him, make hand paintings, and make paper airplanes. Father believed he had a very good connection with his son as M.H. lit up when he saw him and recognized him as his father.

Father said he would be out of custody by December 2017. Father had a residence for M.H. with father’s brother. Until he was released, father requested M.H. be placed with one of his relatives. Father said he also wanted custody of M.H.’s other siblings. Father denied sobriety was ever an issue for him. Father conceded he had missed some drug tests, but things came up, like his stepdaughter getting into a car wreck or not having his identification, that caused him to be unable to test. The court ordered visits continue between father and M.H.

On October 26, 2017, the juvenile court heard the closing arguments of counsel and made its rulings on the section 388 petition. The court tentatively found father failed to show changed circumstances or that his petition was in M.H.’s best interests. Father’s counsel informed the court father had given her a letter and counsel wanted “to provide [an] update on the services that he is still continuing with.” The court did not accept this information because it was “not the date to take additional evidence” and the court was not considering additional evidence. Defense counsel argued father’s testimony was he was involved in services and these were still ongoing. Father’s position remained that his circumstances had changed. The court adopted its tentative ruling denying father’s section 388 petition. The court continued M.H.’s case for a permanency planning to comply with ICWA.

DISCUSSION

Section 388 Petition

Father contends the juvenile court abused its discretion in denying his section 388 petition. We disagree.

A petition to modify a juvenile court order under section 388 must allege facts showing new evidence or changed circumstances exists, and that changing the order will serve the child’s best interests. (§ 388, subd. (a); In re Nolan W. (2009) 45 Cal.4th 1217, 1235.) The petitioner has the burden of proof by a preponderance of the evidence. (Cal. Rules of Court, rule 5.570(h)(1)(D).) Courts liberally construe a section 388 petition in favor of its sufficiency. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Even so, section 388 requires a petitioner to make a prima facie showing of both elements to trigger an evidentiary hearing. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) If, for instance, the parent makes a prima facie showing of changed circumstances, the juvenile court can still deny the petition without an evidentiary hearing if the parent fails to make a prima facie showing the relief sought would promote the child’s best interests. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.)

In assessing the petition, the court may consider the entire history of the case. (In re Justice P., supra, 123 Cal.App.4th at p. 189.) We review the denial of a section 388 petition after an evidentiary hearing for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) Where there is conflicting evidence, we reverse only if the evidence compels a finding for the appellant as a matter of law. (In re I.W. (2009) 180 Cal.App.4th 1517, 1527–1529.)

The best interests of the child or children are of paramount consideration when, as here, a section 388 petition is brought after reunification services have been denied. (See In re Stephanie M., supra, 7 Cal.4th at p. 317.) In assessing the best interests of the child at this juncture, the juvenile court’s focus is on the needs of the child for permanence and stability rather than the parent’s interests in reunification. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) “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.” (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)

The “‘escape mechanism’” provided by section 388 after reunification efforts have ceased is only available when a parent has completed a reformation before parental rights have been terminated. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528.) This is because if a parent’s circumstances have not changed sufficiently to permit placement of the child with that parent, reopening reunification “does not promote stability for the child or the child’s best interests” when the child is otherwise adoptable. (In re Casey D., supra, 70 Cal.App.4th at p. 47.)

Father asserts the juvenile court refused to take additional evidence at the hearing. We disagree with father’s characterization of what transpired. The juvenile court finished taking testimony and evidence at the hearing on September 28, 2017. The hearing on October 26, 2017, was for closing arguments and for the court to rule on both parents’ section 388 petitions. The court and the parties apparently did not contemplate providing additional evidence. Although father’s counsel’s arguments are somewhat vague, it appears father had given counsel a letter “to provide [an] update on the services that he is still continuing with.” Even if father’s letter constituted evidence, it appears it either duplicated or updated information he had already provided in his testimony the prior month. The juvenile court acted well within its discretion not to accept additional information of this nature.

Father vigorously argues in both his opening and reply briefs that he was receiving services and he did not need to show he completed his substance abuse and parenting programs to prevail at the section 388 hearing. Father also asserts his testimony constituted new evidence not before the juvenile court at the disposition hearing. We reject father’s arguments.

Father failed to provide corroboration or documentation either to the department or at the hearing of the parenting classes he claimed to attend. Father had a criminal history going back a decade. He was incarcerated at the time of the hearing and had pending criminal cases for drug-related offenses. When asked to update his personal information, father provided the department with a nonexistent address and phone number. Father did appear to be attending classes dealing with his drug problems, but was nearly dropped out of the program for failure to regularly attend. Furthermore, father wore inappropriate clothing to the drug counseling classes. Father failed to take six drug tests and five hair follicle tests for the department. Father was well aware that failure to test is considered a presumptive positive result for the presence of drugs or alcohol.

Father also missed several weekly visits with M.H. between January and June 2017. The social worker observing father’s visits noted father was appropriate with M.H. and interacted with him, but acted more in the role of a friend than of a parent. During his testimony, father conceded he failed to complete any programming between March 2016 and September 2017, a time span of a year and a half.

Father failed to show at the disposition hearing his circumstances had changed from the time he was bypassed for reunification services. Father’s inability to complete programming and his presumptive continuing use of drugs showed he had made insufficient inroads into his persistent substance abuse problem so that returning M.H. to him or resuming reunification services would be appropriate. (See In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081 [parents with extensive drug use history did not show changed circumstances where rehabilitation efforts were only three months old at time of § 366.26 hearing]; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423 [seven months’ sobriety does not constitute changed circumstance where parent has history of periods of sobriety and relapses]; accord, In re Kimberly F., supra, 56 Cal.App.4th at p. 531, fn. 9 [“It is the nature of addiction that one must be ‘clean’ for a much longer period than 120 days to show real reform”].)

Even if father showed his circumstances were changing, this would be insufficient to form a basis for the juvenile court to grant his section 388 petition. (In re Casey D., supra, 70 Cal.App.4th at p. 49.) The juvenile court did not abuse its discretion in finding father failed to show a genuine change in circumstances meriting consideration to resume reunification services or to place M.H. with him. As for M.H.’s best interests, the social worker determined father did not have a parental relationship with M.H., who is adoptable and whose caregivers were seeking to adopt him. Father’s petition and his testimony at the hearing failed to establish it was in M.H.’s best interests for father to receive additional reunification services. The juvenile court did not err in denying father’s section 388 petition.

DISPOSITION

The orders of the juvenile court are affirmed.