Opinion
C089446
06-05-2020
In re M.B. et al., Persons Coming under the Juvenile Court Law. BUTTE COUNTY DEPARTMENT OF EMPLOYMENT AND SOCIAL SERVICES, Plaintiff and Respondent, v. D.B., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 18DP00231, 18DP00232)
D.B., father of the minors, appeals from the juvenile court's denial of his petition for modification requesting reunification services. (Welf. & Inst. Code, §§ 388, 395.) We conclude that given father's history, the juvenile court did not abuse its discretion in denying his petition. Accordingly, we affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
On September 6, 2018, the Butte County Department of Employment and Social Services (Department) filed a section 300 petition on behalf of minors M.B. and N.B., as well as their half sibling Ne.B., based on being exposed to the parents' ongoing domestic violence and substance abuse. The allegations stated the minors had been "exposed to ongoing domestic violence . . ." including, "yelling, name calling, knife throwing, damaging property, grabbing hair, hitting, dragging and throwing."
The proceedings below also included the minors' half sibling, Ne.B., but Ne.B. is not a subject of the instant appeal.
The petition further alleged the father's substance abuse problem rendered him unable to provide safe and appropriate care for the minors, as evidenced by his child protective history, criminal history, and positive test for methamphetamine on August 23, 2018. Mother had self-reported use, and had tested positive for methamphetamine and marijuana. Father knew or should have known mother was under the influence on occasions when he left the children in her care. Ne.B. had also reported ongoing abuse, including being hit, called vile names, and being threatened with a knife. Father had a 39-year criminal history with 27 convictions, including a 1999 conviction for robbery with great bodily injury and a 2009 conviction for dissuading a witness by force or threat. The juvenile court ordered the minors detained and took jurisdiction in September 2018.
The disposition hearing took place on October 29, 2018. By the time of the hearing, Ne.B. had disclosed numerous instances of domestic violence, with both parents being aggressors, and reported specific details of witnessing the parents' substance abuse and being asked to assist in their drug use. Mother testified and corroborated Ne.B.'s accounts. Mother also reported she and father both resumed methamphetamine use on February 28, 2018.
Father testified that he had a substance abuse problem until 2008, when he had completed a six-month residential treatment program through the Cherokee House in 2008, a drug court program called "HIDE" (High Intensity Drunk Driving Program) in 2017, and a 52-week anger management program through the probation department called New Beginning in 2008. While at the Cherokee House, and after being ordered to attend 90 meetings in 90 days, father attended 240 meetings. He claimed he relapsed in August of 2018, used methamphetamine with mother for approximately 20 days, and then he entered outpatient treatment and began attending weekly NA meetings. He claimed he last used methamphetamine in August 2018 but, in September 2018, he tested positive on one occasion and failed to appear for testing on another. He also claimed he had never used drugs in the presence of Ne.B., her accusations were untrue, and she is known to be a liar. He told the social worker his life was "in shambles" because of mother.
Father had obtained a "no negative contact" order on September 19, 2018. On September 27, 2018, father was arrested for battery on a spouse. Law enforcement authorities responded to another domestic violence call on October 5, 2018. Father, however, maintained he was not causing or instigating any of the domestic violence.
The juvenile court ordered the minors removed from parental custody and provided mother with family maintenance services. Father was bypassed for reunification services pursuant to section 361.5, subdivision (b)(12). The juvenile court emphasized the seriousness and violence of father's criminal convictions in finding the section applied. With respect to whether reunification services were, nonetheless, in the minors' best interests, the court found father had "lied nonstop when he was on the stand here about what is going on in the home and about his own ability to remain drug free"; there was extensive domestic violence that had gone "way, way beyond" a no-negative contact order; and a stay away restraining order was needed until both parents get their drug addictions under control, because the court believed drug use "is the root of very much of what has happened with this family." The juvenile court then repeated it was very troubled by father's lying under oath, and then found, "for that reason," it could not find it to be in the best interest of the minors to offer reunification services to the father.
We grant respondent's request that we take judicial notice of this court's records to establish father appealed this judgment but the appeal was dismissed pursuant to In re Phoenix H. (2009) 47 Cal.4th 843. (Evid. Code, § 452, subd. (d).) --------
The six-month review hearing took place in April 2019. Mother had not engaged in services during the reporting period. Father was engaging in voluntary services, despite being bypassed at disposition. Father had admitted at a November 27, 2018 meeting that he had relapsed. He entered residential treatment on February 20, 2019. He had filed a section 388 petition for modification two days before the review hearing, requesting reunification services. His petition alleged he had entered a rehabilitation program; had 57 days of sobriety; was attending 21 to 22 community support meetings per week; was enrolled in a program through Feather River Tribal Health; was attending a weekly substance abuse group meeting through Butte County Behavioral Health; was on a list to begin a domestic violence program through Feather River Tribal Health; and was drug testing twice weekly. The juvenile court continued mother's reunification services and set the hearing on father's petition for modification for May 13, 2019.
The parties appeared on May 13, 2019. The social worker reported mother was in a program, testing clean, and attending counseling. The hearing on father's petition was continued to June 3, 2019. At that hearing, Michael Anderson, the chief executive officer of Northern California Treatment Services where father was in residential treatment, testified father had maintained a residence in the treatment facility since February 19, 2019, was meeting the requirements of the program, and was attending three community support meetings a day. The program included drug testing twice weekly and father had been testing clean of drugs. Father was to voluntarily remain in the program for 365 days but was permitted to remain indefinitely, if necessary. Father attended a minimum of three support meetings a week and was "definitely embracing his sobriety." He had been sober for 106 days. Although this was not long enough to create lifelong sobriety, father had put together a strong support group and Anderson had observed "tremendous changes" in father since coming into the program. The relationship between father and mother was toxic. On May 18, 2019, father had put "himself on blackout away from her," after an "incident" between father and mother four days earlier.
Father added that he also participated in weekly individual counseling at his treatment program. Following his conviction for robbery, he had attended anger management classes and domestic violence classes. This was not his first time getting sober and addressing his addiction but this time he has a strong support group and has a "higher power" to whom he talks. He had been using methamphetamine every day between February 2018 and February 19, 2019. Father had first used "crystal" methamphetamine 20 years earlier.
Father testified he had not missed any visits with the minors since he entered the program and believed the visits went well and the minors are happy to see him. He admitted he had called mother and Ne.B. vile names and he now understands, having read the Bible and scriptures, that his behavior was unacceptable. He denied he had any contact with mother during the period around May 13 or 14, 2019. He testified mother had come to the treatment facility to harass him as recently as two days before the hearing. He did not have a restraining order, but was willing to obtain one, and had considered filing for divorce. Father felt a grant of services to him would benefit the minors. He loved them and felt they were counting on him to bring them home. He believed additional services, including parenting, anger management, and domestic violence counseling would be beneficial.
The social worker confirmed father had completed parent engagement counseling and was signed up for an anger management series that was to begin in June 2019. Mother continued to report father was engaging her negatively and there were reports by both mother and her treatment facility that father had followed and/or chased mother on several occasions since the time father entered his current treatment program. Mother reported father had attempted to attack her while seated in a car together on May 13, 2019. The social worker had not had any negative personal interactions with father since the disposition hearing and had noticed, in her interactions with father, a positive change in him since he began testing clean.
Mother had been in rehabilitation but had recently relapsed. The minors were demonstrating extreme behaviors related to the trauma they had suffered in parental care. They were in a specialized home and had stated they do not want to return home. They did not ask about father nor ask to see him.
The juvenile court denied father's petition for modification. It found father had not made sufficient progress in treating the issues to show a change of circumstances. The court noted father had previously completed the Cherokee House residential treatment program, a 52-week anger management class, the HIDE program and stayed sober for 11 years, and then went "off the wall" for no apparent reason and resumed his substance abuse. The court further found father had not addressed the domestic violence issues. The anger management program he had completed had not changed his "despicable" and aggressive behavior toward Ne.B. and mother, and father's demonstration of unacceptable behavior had created very significant behavior problems for the minors. Additionally, father had failed to enforce the no-negative contact order that remained in place, despite his allegations mother was violating the order, and failed to get a "proper restraining order." The court further found that providing reunification services for father would not promote the minors' best interests.
DISCUSSION
Father contends the juvenile court erred in denying his petition for modification requesting reunification services. He claims he established changed circumstances and further established that granting the petition would be in the minors' best interests.
Section 388 permits modification of a dependency order if a change of circumstance or new evidence is shown and if the proposed modification is in the best interests of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.) "Even after the focus has shifted from reunification, the scheme provides a means for the court to address a legitimate change of circumstances while protecting the child's need for prompt resolution of his [or her] custody status." (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) The petitioning party has the burden of proof by a preponderance of the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 48.)
The best interests of the child are of paramount consideration when a modification petition is brought after termination of reunification services. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In assessing the best interests of the child at this juncture, the juvenile court looks not to the parent's interests in reunification but to the needs of the child for permanence and stability. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) "[W]hen a child has been placed in foster care because of parental neglect or incapacity, after an extended period of foster care, it is within the court's discretion to decide that a child's interest in stability has come to outweigh the natural parent's interest in the care, custody and companionship of the child." (In re Jasmon O. (1994) 8 Cal.4th 398, 419.)
A modification petition "is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion." (In re Jasmon O., supra, 8 Cal.4th at p. 415.) "It is rare that the denial of a section 388 motion merits reversal as an abuse of discretion . . . ." (In re Kimberly F., supra, 56 Cal.App.4th at p. 522.) We conclude there was no abuse of discretion.
First, father's alleged changed circumstances center around his recent participation in substance abuse programs. Father's substance abuse, however, formed only part of the basis for denying him reunification services. Although, in denying father reunification services, the juvenile court remarked it believed the parents' drug addictions were at the root of their domestic violence problems, the basis for bypassing father for reunification services pursuant to section 361.5, subdivision (b)(12), was father's significant and violent criminal history that includes a 1999 robbery with great bodily injury conviction. Father also had a 2009 conviction for dissuading a witness by force or threat and had been arrested for assault on mother on August 15, 2018 and again on September 27, 2018. This behavior, indicative of his inability to refrain from violence, along with his drug use, had led to the minors' removal at disposition and the denial of reunification services.
Nonetheless, at the section 388 hearing, father made no showing he had addressed anger management or domestic violence and it had been less than a year since his most recent arrests for violent behavior. There continued to be negative conduct between father and mother that, at worst was instigated by father and, at best, was being permitted by father, as he was not enforcing the no-negative contact order and did not obtain a restraining order. The only evidence father presented on these issues was that the social worker had noticed "a positive change" in father in the few months he had been testing negative for drugs and he had enrolled in, but not begun, anger management classes - which, as the juvenile court noted, he had previously completed to no avail, as he had continued to engage in domestic violence and call Ne.B. and mother vile names.
Second, father argues he addressed his substance abuse issue because he had been in a residential treatment program for four months, was attending weekly community support groups and several AA meetings a day, was testing clean and was "embracing sobriety." But, as noted by the juvenile court, father had similarly previously entered substance abuse residential treatment for a six-month period, participated in 240 support meetings, and completed a "HIDE" program for excessive DUI's in 2017. Despite completion of those programs, father had resumed methamphetamine use in February 2018 and continued daily use until his most recent sobriety date of February 17, 2019.
At the time of the section 388 hearing, father had not completed even 4 months of his current 12-month inpatient program. A change in circumstances, under section 388, must be of such a significant nature that it requires a setting aside or modification of the challenged prior order. (In re Michel O. (2011) 197 Cal.App.4th 586, 615.) With less than 4 months of sobriety, after a year in relapse and a 20-year history with methamphetamine, father was, at best, beginning to embark on his journey toward abstaining from substance abuse.
Even a showing of great effort to make improvements will not necessarily be persuasive when a parent has an extensive history of drug use. (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081 [affirming the denial of a section 388 petition when the parents' efforts at drug rehabilitation were only three months old at the time of the section 366.26 hearing]; In re Casey D., supra, 70 Cal.App.4th at pp. 47-48 [affirming the denial of a section 388 petition when the mother with an extensive history of drug use had been drug free for only a few months and had not completed her treatment program]; In re Amber M. (2002) 103 Cal.App.4th 681, 686 [no abuse of discretion in denying a section 388 petition where the parent established only a 372-day period of abstinence].) Considering father's sobriety in light of his substance abuse history, along with his failure to make progress in addressing anger management or domestic violence, the juvenile court did not abuse its discretion in denying the petition for modification.
Because father did not establish a change of circumstances, we need not address his argument that he established the provision of reunification services would be in the minors' best interests. We also reject father's contention the juvenile court exceeded its jurisdiction by applying an "extra-statutory concept of 'changing' circumstances" in denying his petition.
Father's argument, although difficult to decipher, appears based on his assertion that "instead of finding that there had been no change in circumstances, the juvenile court found that circumstances were changing." (Italics added.) What the court stated (after commenting that the issues of domestic violence had not been addressed) was, "[c]learly the sobriety is a changing factor, not something that the Court can find that you have actually changed." Thus, the court did find no change in circumstances.
As we stated above, father had the burden to prove a change in circumstances. The juvenile court found he did not meet his burden to prove a change in circumstances; he had shown only that the circumstances were in the process of change. The juvenile court did not, as father contends, act "outside of its statutory authority" in denying his petition.
DISPOSITION
The orders of the juvenile court are affirmed.
/s/_________
HOCH, J. We concur: /s/_________
BLEASE, Acting P. J. /s/_________
BUTZ, J.