Kern Cnty. Dep't of Human Servs.
v.
Melanie T. (In re Trinity D.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICTMar 22, 2018
F076029 (Cal. Ct. App. Mar. 22, 2018)

F076029 F076030

03-22-2018

In re TRINITY D., a Person Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. MELANIE T. et al., Defendants and Appellants.

David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant Melanie T. Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant Craig D. Mark L. Nations, County Counsel, and Bryan C. Walters, Deputy County Counsel, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JD136472 00)

OPINION

THE COURT APPEAL from an order of the Superior Court of Kern County. Louie L. Vega, Judge. David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant Melanie T. Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant Craig D. Mark L. Nations, County Counsel, and Bryan C. Walters, Deputy County Counsel, for Plaintiff and Respondent.

Before Franson, Acting P.J., Smith, J. and Meehan, J.

-ooOoo-

In July 2017, the Kern County Juvenile Court (juvenile court) denied a modification petition brought by appellants Craig D. (father) and Melanie T. (mother) pursuant to Welfare and Institutions Code, section 388 (section 388 petition) seeking the return of their then 11-month-old daughter, Trinity D., to their custody under family maintenance services. At the same hearing, the court terminated their parental rights. (§ 366.26.) Mother appeals from the court's order denying the section 388 petition. Father joins and adopts by reference the arguments made by mother in her separate appeal of the same order. (Cal. Rules of Court, rule 8.200(a)(5).) Mother contends the court abused its discretion in denying the section 388 petition because the requested order served Trinity's best interest. We affirm.

Statutory references are to the Welfare and Institutions Code.

On March 19, 2018, this court ordered the two appeals consolidated.

PROCEDURAL AND FACTUAL BACKGROUND

Appellants have a long history of drug abuse, including methamphetamine, addiction to pain medication and mental instability. They have three daughters, A.T., A.D. and S.D., currently six, five and four years old, respectively, who, in August 2016, at the time of these proceedings, were dependents of the Los Angeles County Juvenile Court (Los Angeles court). Mother also has a son, Jayden T., now seven, who was removed from her custody at birth in Kern County because of her methamphetamine use and placed with his maternal grandparents in a legal guardianship.

The Los Angeles County Department of Children and Family Services (Los Angeles department) became involved with the family in August 2011 after receiving a report that mother was intoxicated at a park with newborn A.T. in 100-degree weather. Mother was homeless and admitted using methamphetamine during her pregnancy. Mother successfully completed substance abuse treatment under a court-ordered plan of family maintenance and in May 2012, the Los Angeles court terminated its jurisdiction. A year later, in July 2013, the Los Angeles department took then 23-month-old A.T. and 11-month-old A.D. into protective custody after the parents were arrested for stealing their landlord's wallet. Three months later, mother gave birth to S.D. who remained in her custody. The court returned A.T. and A.D. to the parents' custody under family maintenance but removed all three children in August 2014 after mother tested positive for opiates and hydrocodone. In October 2014, the court ordered the parents to participate in reunification services, including substance abuse treatment. In June 2015, during ongoing dependency proceedings, mother gave birth to a daughter, Sag.D., who tested positive for morphine and hydromorphone. In July, the Los Angeles department took Sag.D. into protective custody after the parents failed to restrain her, resulting in the 11-day-old baby falling out of her car seat and hitting her head. At the pediatrician's office, they reportedly had red eyes, slurred speech and an unsteady gait, suggestive of being under the influence of a controlled substance. In July 2016, at a review hearing, the Los Angeles court terminated the parents' reunification services as to all four children and set a section 366.26 hearing.

These dependency proceedings were initiated in August 2016 when mother gave birth to Trinity in Kern County. Though mother and Trinity tested negative for controlled substances, mother admitted using marijuana while pregnant with Trinity and became upset when the nurse would not give her a Vicodin. She was also uncooperative with a social worker from the Kern County Department of Human Services (Kern County department) who tried to assess the suitability of her housing situation. Consequently, the Kern County department obtained a warrant and took Trinity into protective custody at the hospital. Trinity was discharged directly into the home of foster parents in Bakersfield, who would become her prospective adoptive parents. Trinity's siblings remained in foster care homes in Los Angeles County.

Social worker Michelle Salazar from the Kern County department contacted a Los Angeles department social worker who said the parents were uncooperative and noncompliant. They submitted to one drug test during the entire reunification period and visited the children infrequently.

The Kern County department filed a dependency petition on behalf of Trinity, alleging she was at risk of serious physical harm or illness because of her parents' history of substance abuse, mental illness and failure to reunify with her siblings.

The juvenile court ordered Trinity detained at the initial hearing in September 2016 and ordered weekly supervised visitation. Following the hearing, Salazar presented a voluntary initial case plan to the parents, consisting of the case plan components ordered by the Los Angeles court in the siblings' case: a 26-week parenting/neglect education class, mental health services, including a psychological evaluation, substance abuse treatment and random drug testing. Salazar explained the Kern County department had adopted the case plan ordered by the Los Angeles court and the parents needed to satisfy those requirements, as well as have all their prescribed medication cleared by a clinician, if they wanted the juvenile court to consider returning Trinity to their custody as the Kern County department's recommendation was to deny them reunification services. The parents expressed understanding.

In October 2016, the juvenile court sustained the dependency petition and set a dispositional hearing for December after the parents waived their right to a contested hearing and submitted the matter of jurisdiction.

By December 2016, the parents had not made any progress in their court-ordered services. They had recently enrolled in a 28-week, department-approved parenting/neglect class scheduled to begin in December. Prior to that, they attempted to meet the 26-week requirement by attending a 14-week class and a 12-week class. However, the classes were geared toward parental nurturance rather than failure to protect and therefore did not satisfy the parenting requirement. The parents were also participating in substance abuse services at Ebony Counseling Center, although the center recently closed mother's case after she became hostile and argumentative at a case conference to discuss increasing her level of substance abuse treatment from level one to level three. After the meeting, mother slammed the door so hard that the clock fell off the wall. The parents failed to drug test numerous times and submitted urine samples that yielded positive results for marijuana. In addition, mother tested positive for hydromorphone in December 2016 and had a prescription for Tramadol, which had not been reviewed by a clinician. The parents had not completed psychological examinations but had appointments scheduled for January 2017.

The Kern County department informed the juvenile court in its report filed for the dispositional hearing the parents were enrolled in the services ordered by the Los Angeles court but had not made any progress. The Kern County department recommended the juvenile court deny them reunification services under section 361.5, subdivisions (b)(10) and (13) because of their failure to reunify with Trinity's siblings and chronic and untreated drug abuse.

In December 2016, the parents appeared at the dispositional hearing. Mother's attorney made an offer of proof, accepted by the parties, that if called she would testify she had a prescription for hydromorphone. The juvenile court ordered Trinity removed from the parents, denied them reunification services as recommended and set a section 366.26 hearing for April 2017. The parents were informed they could continue to call in for drug testing but at their own expense. Neither parent challenged the court's setting order by extraordinary writ petition.

A week before the section 366.26 hearing, the parents filed a section 388 petition, asking the juvenile court to return Trinity to their custody under family maintenance services. As changed circumstances, they alleged they completed a 26-week parenting class, complied with and participated in a mental health program, completed a 12-step substance abuse program and attended weekly Narcotics/Alcoholics Anonymous meetings. They also regularly visited Trinity and the visits were of good quality and they had suitable housing and provisions for Trinity. As to why their proposed order would serve Trinity's best interest, they asserted it would offer her "ultimate permanence" and reunite the family.

The juvenile court set a hearing on the section 388 petition to coincide with the section 366.26 hearing and continued the matter.

The Kern County department recommended the juvenile court deny the section 388 petition because the parents had not completed a 26-week parenting course, attended substance abuse counseling or drug tested since December 2016. The Kern County department pointed out that the only new evidence provided was a certificate of completion of a 14-week parenting course and a letter that mother was evaluated for mental health services and participated in four psychotherapy sessions since January 2017. The Kern County department informed the juvenile court that social workers assessed the suitability of the family home in May 2017. The parents stated the home had two bedrooms and two bathrooms but would not allow the workers access to them. The parents had clothing, baby food and formula, a play pen and car seat for Trinity but no diapers.

The Kern County department also recommended the juvenile court find Trinity was likely to be adopted and terminate parental rights. Though Trinity enjoyed a positive visiting relationship with her parents, they visited her sporadically since her detention and she had no relationship with her siblings as she had never met them. Trinity was bonded to her foster parents, who she regarded as her primary parental figures. The Kern County department opined the long-term benefit of adoption for Trinity outweighed the benefits of maintaining parental rights.

On July 13, 2017, the juvenile court conducted a combined hearing. The parents were the only witnesses. The substance of mother's testimony concerned her interaction with Michelle Salazar in the months prior to the dispositional hearing and obstacles she encountered in complying with her initial case plan. She testified Salazar did not specify that she needed to complete a 26-week parenting class when they discussed the initial case plan but she knew the Los Angeles court required it. She completed a 12-week parenting class in Los Angeles County and enrolled in a 14-week parenting class at the Child Guidance Clinic. No one raised any concern about it, including social worker Dominica Martinez, who met with mother in late September, October and November. According to mother, the subject was not raised until two weeks before the dispositional hearing in December when, while discussing her case plan requirements, Salazar told her the 14-week class would not suffice. Mother subsequently enrolled in the 26-week class on January 25, 2017, but was dropped for missing classes, explaining she visited her other children three times a week in Los Angeles and could not do both. She reenrolled and was scheduled to attend her first class that evening.

Mother further testified Salazar referred her to Mary K. Shell Mental Health Center (MKS) for a mental health assessment in September 2016. As a result, she was referred for housing assistance. Salazar asked her to complete a more comprehensive assessment at MKS but when mother presented her a 15-page report from MKS, Salazar refused to accept it, stating she should have gone to Truxton Psychiatric facility. Mother nevertheless enrolled in mental health counseling at Omni Family Health Center in January 2017 and began seeing a psychiatrist in June 2017. The psychiatrist did not prescribe any psychotropic medication and the clinic did not oversee pain medication management. Mother testified she had not taken any pain medication since January 2017.

Mother testified the director of Ebony Counseling Center increased her level of substance abuse services to level three in December 2016 at Salazar's request. However, it required her to attend counseling three times a week, which she could not do and visit the children in Los Angeles. Mother admitted testing positive for marijuana in late November or early December 2016, which she attributed to the discouragement of trying to comply with her services plan. She acknowledged missing many drug tests for the Kern County department, but claimed she was not given her client identification number until November and did not have the money to pay herself after her services were terminated. She enrolled in a new substance abuse counseling program, scheduled to begin on July 20.

Father testified he completed the 12- and 14-week parenting classes, which satisfied the Los Angeles court order. He completed a mental health assessment and was diagnosed with posttraumatic stress disorder from a car accident he had in December 2008. He was referred to Omni Family Health Center where he was seeing a therapist. He was not prescribed medication. He testified that he was close to completing substance abuse classes when his level of treatment was increased. After that, he stopped attending because he could not attend all the sessions. He admitted his prior use of marijuana but denied any current use. He was scheduled to begin substance abuse services at Ebony Counseling Center on July 17. He also enrolled in a 26-week parenting class and attended the first class the day before.

The juvenile court denied the parents' section 388 petition and terminated their parental rights.

The parents filed notices of intent, challenging the juvenile court's orders issued at the July 13, 2017, hearing. On our own motion, we deemed their notices of intent to be notices of appeal and ordered a new briefing schedule.

DISCUSSION

Appellants contend they met their burden under section 388 of establishing that their circumstances had changed such that an order placing Trinity in their custody under family maintenance services served her best interest. We disagree.

Section 388 permits a parent to petition the juvenile court to change, modify, or set aside any previous order made in the dependency proceeding based on changed circumstances. "The parent bears the burden of showing both a change of circumstance exists and that the proposed change is in the child's best interests." (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) "Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.... The court need not continue to consider the issue of reunification at the section 366.26 hearing. The burden thereafter is on the parent to prove changed circumstances pursuant to section 388 to revive the reunification issue." (In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.).)

Section 388 provides in relevant part: "Any parent ... may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court ... for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court." --------

Thus, section 388 effectively operates as an " 'escape mechanism,' " allowing the juvenile court to consider new information while recognizing a dependent child's need for stability. (Marilyn H., supra, 5 Cal.4th at p. 309.) Marilyn H. explained, "The parent's interest in having an opportunity to reunify with the child is balanced against the child's need for a stable, permanent home. The parent is given a reasonable period of time to reunify and, if unsuccessful, the child's interest in permanency and stability takes priority. 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 custody status." (Ibid.)

"On appeal, we will not reverse the decision of the juvenile court unless the parent establishes the trial court abused its discretion." (In re Casey D., supra, 70 Cal.App.4th at p. 47.) " ' "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." ' " (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

Appellants contend they made substantial progress in their case plan requirements subsequent to the juvenile court's dispositional order denying them reunification services and such progress constituted a change in circumstances. Any failure on their part to comply sooner, they further contend, was attributable to miscommunication and confusion created by the Kern County department social workers.

As a preliminary matter, whether appellants understood the specific requirements of their initial case plan was irrelevant on the issue of changed circumstances. It was relevant at the dispositional hearing on the issue of whether the Kern County department made reasonable efforts to help them comply with the initial services plan. (§ 361, subd. (d).) However, they did not raise the issue at the dispositional hearing or on a writ petition from the court's setting order.

Further, we see no need to address appellants' status with respect to each component of their case plan as detailed in their opening briefs. Suffice it to say that, on the date of the hearing on their section 388 petition, they had either recently begun or were scheduled to begin the three key components of their case plan (i.e., substance abuse counseling, mental health counseling and parenting instruction) after more than two years of reunification efforts. Even if they had achieved some nominal change, "[n]ot every change in circumstance can justify modification of a prior order. The change in circumstances must relate to the purpose of the order and be such that the modification of the prior order is appropriate. In other words, the problem that initially brought the child within the dependency system must be removed or ameliorated. The change in circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged order." (In re A.A. (2012) 203 Cal.App.4th 597, 612; citations omitted.) Appellants did not establish that such a change had occurred.

Nor did appellants show that family maintenance services would serve Trinity's best interests. Trinity was removed from appellants at birth. Over the ensuing 11 months, she bonded with her foster parents and looked to them to meet all her needs. Appellants acknowledge this reality but contend Trinity's bond to her foster parents as compared to her bond to them is "relatively neutral." They also contend providing them additional time to reunify is a "no-risk proposition" and would have "no detrimental effect whatsoever upon this young child who [is] in a stable situation." The record, however, does not support their claim with respect to the strength of Trinity's relationships. Rather, according to the evidence, Trinity was "bonded" to her foster parents; she had a "positive visiting relationship" with mother and "an inconsistent visiting relationship" with father. Further, contrary to appellants' assertion, there is a risk in reopening reunification for Trinity; that is, the risk of emotional upheaval and interference with the love, affection, bonding and emotional ties she established with her foster parents.

We find no abuse of discretion in the juvenile court's order denying appellants' section 388 petition. Since appellants do not challenge the court's order terminating their parental rights, we do not address it.

DISPOSITION

The juvenile court's order is affirmed.