In re E.C. CA3 ( 2015 )


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  • Filed 4/8/15 In re E.C. CA3
    NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
    COPY
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    THIRD APPELLATE DISTRICT
    (Sutter)
    ----
    In re E.C., a Person Coming Under the Juvenile Court                                         C077277
    Law.
    SUTTER COUNTY DEPARTMENT OF HUMAN                                                       (Super. Ct. No.
    SERVICES,                                                                              DPSQ-20136886)
    Plaintiff and Respondent,
    v.
    J.C.,
    Defendant and Appellant.
    Mother, Jessica C., appeals the juvenile court’s order denying her petition for
    modification, which sought reunification services. She contends the trial court abused its
    discretion in denying her services because she had demonstrated changed circumstances
    and that the minor could benefit from services. We disagree and affirm the juvenile
    court’s order.
    1
    BACKGROUND
    Detention of Minor & Section 300 Petition
    On September 9, 2013, Yuba City Police Officer Maky arrested mother after
    conducting a search of her motel room. During the search law enforcement found two
    grams of methamphetamine and a hypodermic syringe. Both the syringe and the
    methamphetamine were accessible to the four-year-old minor. The room was filthy with
    clothing and trash piled around the room. The bed had been removed from the room due
    to nonpayment of rent, so mother and the minor were sleeping on the floor. There were
    also two dogs in the room. The minor’s body, clothing, and hair were dirty and she
    emitted a foul smell of dirt and dogs. Officer Maky called the Sutter County Department
    of Human Services (the Department) and requested a social worker respond, because the
    minor needed placement. Mother admitted to the social worker that she had used
    methamphetamine that morning. The minor was placed in protective custody.
    The Department had also been investigating a neglect referral since August 2013.
    As part of that investigation, mother advised the social worker she had been
    diagnosed as bipolar and schizotypal, although mother disagreed with the
    diagnosis. She stated she had a gift to heal that was misinterpreted as mental
    illness. Mother also suffers from trichotillomania, and is bald as a result of pulling
    her hair out.1 She told the social workers the words “Believe” and “Jesus Christ”
    are being formed on her scalp. Mother admitted smoking marijuana. Mother and the
    minor had been homeless off and on for at least the last three years. When the minor was
    detained, mother did not have any realistic prospects to improve their housing situation.
    Mother previously had a number of short-lived jobs, but had not been gainfully employed
    1 Trichotillomania is an anxiety disorder distinguished by the compulsive pulling out of
    one’s own hair and difficulty refraining from this behavior.
    2
    in the last three years. Mother’s history with the Department included 15 referrals dating
    back to 1998, six of which pertained to the minor.
    Mother had a history of significant mental health diagnosis and treatment. She
    had previously participated in services, but over time did not maintain her treatment or
    sobriety. Mother’s criminal history included arrests and/or convictions for felony
    transportation/sales of controlled substance, resisting arrest, assaulting a police officer,
    battery on a former spouse, drunk in public, willful injury to a child, contempt of court,
    and violation of probation. Since the minor’s birth, mother had been arrested four times.
    Upon her release from custody on September 11, 2013, mother informed the social
    worker that the minor had the ability to communicate with an entity nobody else could
    see. Mother advised she was seeking mental health treatment and had been attending
    AA/NA meetings. She was also drug testing and visiting with the minor regularly. Many
    of the drugs tests were positive. Mother informed the social worker she had graduated
    from an outpatient drug treatment in 2007. She reiterated she had not had stable housing
    since 2011.
    On September 11, 2013, the Department filed a petition under Welfare and
    Institutions Code section 300.2 The petition alleged mother had failed to protect the
    minor based on her inability or failure to supervise the child, her willful or negligent
    failure to provide the child with adequate food, clothing, shelter or medical treatment, and
    her inability to provide regular care due to her mental illness, developmental disability, or
    substance abuse. (§ 300, subd. (b).) On September 26, 2013, the juvenile court found the
    allegations in the petition true and ordered mother to complete two psychological
    evaluations.
    2   Undesignated statutory references are to the Welfare and Institutions Code.
    3
    Psychological Evaluations of Mother
    Mother underwent court-ordered psychological evaluations with Dr. Wilkenfield
    and Dr. Wuehler in October 2013 and November 2013, respectively. Dr. Wilkenfield
    diagnosed mother with bipolar disorder, moderate trichotillomania, anxiety disorder, and
    amphetamine and cannabis dependency, currently in remission. Dr. Wilkenfield reported
    mother’s history included mental health counseling, on and off over the years, as an
    adult. Mother indicated she had started smoking marijuana in her senior year of high
    school, and quickly moved to smoking on a nearly daily basis. She first tried
    methamphetamine at age 19, and within a year was using it regularly. She completed
    drug rehabilitation in 2005 and remained sober for about a year, and then started using
    again.
    Dr. Wilkenfield observed mother was not “flagrantly delusional” but was
    “disinclined to acknowledge responsibility for the circumstances that brought her and her
    daughter to the attention of CPS … .” Her test results indicated a “somewhat inflated
    sense of self-worth and a rather indifferent attitude toward the welfare of others.” Poor
    impulse control is a hallmark feature of her personality style, and her history further
    suggested she was not “given to carefully considering the consequences of her behavior
    before she acts.” Dr. Wilkenfield concluded “[w]hat was perhaps of greatest concern
    with respect to her ability to function in a parental role was how limited her appreciation
    appears to be of the potential detriment her chronically unstable lifestyle is likely having
    on her child’s personality development. She shows a very limited understanding of the
    importance of consistency and stability to a child [the minor’s] age, and she showed
    rather limited insight into the seriousness of her own mental health issues.” Dr.
    Wilkenfield opined mother’s mental illness could pose a serious risk to any children in
    her care, and her mood, symptoms, and deficits in judgment were likely exacerbated by
    her protracted history of drug abuse. He expected her mental illness would manifest “in
    terms of limitations in her ability to accurately perceive or to focus her attention on her
    4
    child’s needs or to effectively assess the effects of her own frequently erratic behavior
    and unstable lifestyle” on the minor’s emotional function and personality development.
    Dr. Wilkenfield concluded mother could possibly benefit from reunification
    services, once she was stabilized with a psychotropic medication regimen. He noted she
    had never consistently complied with such a targeted regimen and her history gave reason
    for skepticism on whether she would comply with treatment. He concluded it was
    possible for her to reunify within one year, but without “prodding and ongoing support,”
    she was likely to falter. He also stated she was “capable of ‘talking a good game’ and
    would be expected to start showing some positive changes within a few months of getting
    started in her drug and mental health treatment, but if she hasn’t yet started doing what
    she is asked to by the Department and begun to show a pattern of consistent attendance at
    her meetings with her service providers . . . there would be little reason to believe she is
    going to turn things around.” Dr. Wilkenfield’s recommendations for services included
    the need for a psychotropic medication evaluation and ongoing treatment with the
    prescribing physician, individual psychotherapy with a therapist experienced with
    individuals with longstanding characterological dysfunction, completion of substance
    abuse recovery, and structured aftercare.
    Dr. Wuehler evaluated mother in November 2013. He diagnosed her with
    schizoaffective disorder and a hair pulling disorder. Mother was not taking her
    prescribed psychiatric medication. Mother did not believe she needed any psychiatric
    medication, but self-medicated with marijuana. Mother told Dr. Wuehler she began
    using marijuana daily at age eight, stopped at age 13, resumed in her senior year of high
    school, and currently still uses. She also reported she had been using methamphetamine
    “on and off” since she was 19 years old, but had stopped using two or three years ago.
    Mother reported she had graduated from treatment programs in 2006 and 2007, and had
    an “uncompleted Prop 36.” Dr. Wuehler noted from the records, mother had been
    diagnosed with a mental disorder since at least 2004, and her compliance with treatment,
    5
    including psychiatric medication, had been variable, but generally poor. Dr. Wuehler
    opined, as a result of her mental disorders, mother was presently unable to adequately
    care for and control her child. He concluded, based on her mental disorders, it was
    unlikely mother would be able to benefit from reunification services within the statutory
    period. He noted she did not believe she had a problem which needed changing.
    Dr. Wuehler did not believe after almost 10 years of attempts, mother would now
    “suddenly . . . do an about face, admit she has mental problems, comply with treatment
    and take appropriate medication.” “The likelihood of true benefit from reunification
    services is predictably poor.” To the extent the court ordered reunification services, he
    concluded it would be necessary for her to accept and take appropriate prescribed
    psychiatric medication, consistently and regularly attend psychotherapy, and attend
    regular NA meetings. Dr. Wuehler also stated, “Given the almost ten years of mental
    health attempts to provide treatment, and recognizing [mother] has likely had
    mental/emotional problem [sic] as far back as age thirteen, it is opined that services in
    this case will require at least two years of consistent treatment before one could
    comfortable [sic] opine that she does not present a substantial risk to her child.”
    Mother obtained an evaluation by Dr. Franklin in January 2014. Dr. Franklin
    diagnosed mother with a co-occurring disorder of substance abuse and a mood disorder.
    Dr. Franklin concluded, based on mother’s present mental health diagnosis, she was not
    able to provide for herself and the minor, and her test results indicated it “would be
    challenging at best for [mother] to care for her daughter.” Mother reported she became
    addicted to alcohol when in middle school, and started using methamphetamine and
    marijuana at age 18. In 2005 she began self-medicating with methamphetamine, alcohol,
    and marijuana. She reported she later “sobered up.” Mother also reported she was
    attending AA meetings and parenting classes, and had enrolled in community college.
    She indicated she had been sober for 120 days and had never attended a formal substance
    abuse treatment program. Dr. Franklin noted that without treatment, mother’s mental
    6
    disorder would impact her ability to care for her daughter. Dr. Franklin opined mother’s
    substance abuse and mental health diagnosis required medication and treatment to
    address her inability to provide a supportive living environment for the minor. Dr.
    Franklin concluded unless mother’s current mental health diagnoses were addressed and
    managed, she would be unable to successfully reunify.
    County Reports Regarding Mother’s Condition
    By November 21, 2013, mother was attending AA/NA meetings and stated she
    had “no desire to drink or use drugs.” She claimed she had been clean for over 60 days,
    but between September 2013 and November 15, 2013, mother tested positive for
    marijuana in 26 out of 28 drug tests. Between November 18, 2013 and December 12,
    2013, seven of mother’s nine tests were positive for marijuana. Of mother’s four drug
    tests between December 2013 and January 2014, three were negative. Since December
    2013, she had attended numerous AA/NA meetings. In January 2014, mother had found
    and attended a parenting class.
    Dr. Singh prescribed psychotropic medications on October 23, 2013, and as of
    November 19, 2013, mother had not started taking them, because she did not feel she
    needed them. In a follow up appointment with Dr. Singh, at the end of November 2013,
    mother stated she did not want to take the medication, questioned her need for it, and
    challenged her bipolar diagnosis. She also refused to sign the treatment plan and the
    medication consent. Intervention counselor Karen Handy advised that mother was not
    appropriate for drug treatment until her mental health issues stabilized. As of January
    2014, mother was still not taking the medication prescribed by Dr. Singh, because “my
    god tells me not to.”
    Mother had been consistent in her visits with the minor and could be loving and
    affectionate toward the minor during these visits. Mother also sometimes asked the
    minor too many questions or gave her information that was not appropriate for a four
    year old. When mother asked the minor too many questions, the minor would withdraw,
    7
    which in turn caused mother to be suspicious. A number of visits were cancelled due to
    positive drug tests.
    Post-Placement Status of the Minor
    About a month after she was detained, the minor was placed with her relatives,
    James B. and B.J.. During an October 28, 2013 visit, the minor told mother she did not
    want to leave James B. and B.J. that day. When mother asked, “Then what about your
    visit with mommy,” the minor stated, “I don’t know.” During the next visit, the minor
    referred to B.J. as “mommy.” Mother had an extended discussion with the minor stating
    that B.J. was not her mother. The minor was upset that she had gotten into trouble for
    calling B.J. “mommy.”
    The minor also underwent a mental health assessment, which indicated she needed
    mental health services. The foster parents, relative caregivers, and social workers noted
    she had “poor boundaries, frequent tantrums, poor public social skills, mood swings,
    aggressiveness, self-injuring, and pestering.” The relative caregivers expressed a desire
    to adopt the minor. The minor was happy and content in her placement with her
    relatives, and they had a strong commitment to providing her a permanent, stable, and
    secure home.
    In December 2013, the minor began Head Start and “loves it.” She had no
    behavioral concerns at school, and her tantrums had decreased in severity and frequency.
    She had developed a better understanding of boundaries and better ability to cope with
    her emotions when she was feeling upset. The Department noted the minor had
    benefitted from living with the relative caregivers in an emotionally secure environment.
    The minor was stable and appeared happy, as evidence by the social worker’s
    observations, and the minor’s decreased behavioral problems.
    During a telephone conversation between mother and the minor on January 20,
    2014, the minor called her caregiver “dad.” Mother was upset, and told the minor the
    caregivers were not her real parents, and informed the minor she would be back with
    8
    mother in a couple of weeks. After the phone call the minor’s tantrums increased in
    frequency and severity, she refused to utilize her previously learned coping exercises or
    time-outs, she was hitting kicking and scratching herself and others, pulling her own hair,
    throwing objects, and ripping her clothing. Following an appointment with her mental
    health therapist, her tantrums subsided. During visits with mother, the minor was
    observed utilizing her coping exercises to manage frustration.
    Denial of Reunification Services for Mother
    In November 2013, the Department recommended mother should not be provided
    reunification services, as there was evidence that, even with services, she was unlikely to
    be capable of reunifying within the specified time limits. The social worker noted the
    minor was exhibiting “concerning behavior and needs to be in a stable environment, free
    from untreated mental illness.” The social worker acknowledged mother loved the minor
    and they had a bond. “Unfortunately [mother’s] mental illness and long-standing pattern
    of dysfunctional behavior prevents her from being capable of providing [the minor] a safe
    and stable home now or in the foreseeable future.” Accordingly, the Department
    recommended no reunification services be offered and that a section 366.26 hearing be
    set.
    The Department continued to recommend services be denied as of January 2014.
    Mother’s mental illnesses rendered her unable to benefit from services, and she had
    refused to follow the recommendations of six trained mental health professionals. The
    Department was concerned mother’s behavior would cause the minor’s “anxiety to
    increase and her behaviors to deteriorate.”
    At the January 28, 2014, disposition hearing, mother testified she could benefit
    from services because she had been sober for 138 days, had begun a parenting class, and
    an alcohol dependency class. She was attending AA meetings regularly and had become
    a full-time college student. She testified the only thing she had not obtained yet was
    housing. She continued to believe it was not necessary for her to take medication,
    9
    because she was not having mood swings. She testified she was still unwilling to take
    psychiatric medication because of her relationship with God, and her God told her not to.
    Minor’s counsel noted the minor was doing very well in her caregiver’s home.
    She was well taken care of and happy. Counsel noted her demeanor was much different
    than when he first met her at the beginning of the proceedings. She was now much
    friendlier and happier.
    Mother’s counsel argued mother had become clean of all substances, and was
    functioning in “every other single way that we like to see parents function other than the
    fact that she hasn’t found a home at this time.” Counsel argued in spite of the expert
    medical opinions, mother had been able to get clean without the benefit of psychiatric
    medication and was having good success in her counseling. Counsel argued mother had
    made drastic, life altering, changes and on that basis should be offered services. Counsel
    continued that her success over the preceding 138 days demonstrated she did not
    necessarily need medication to benefit from services.
    The juvenile court noted the progress mother had made in terms of her enrollment
    in school, improvements in her social circle, and her sobriety. The juvenile court noted
    she had made good progress in benefiting herself, but not necessarily consistent with
    what would benefit the minor in terms of reunification. The juvenile court observed all
    three psychological evaluations indicated mother would need extensive therapy and
    medication to have any long-term, meaningful, benefit and progress that would result in
    the return of the minor to her. Over the course of 25 years, medical professionals have
    consistently stated mother needed medication, prescribed that medication, and mother has
    consistently not taken that medication. The court made it “abundantly clear” that it was
    “very, very concerned about this issue of the medication and whether or not [mother]
    would be willing to follow the recommendations of the professionals [she] had been
    seeing.” The court also recognized mother believed she could benefit from services
    without medication, but the psychological reports and her history indicated otherwise.
    10
    The juvenile court followed the Department’s recommendation, and denied reunification
    services based on mother’s mental disability, which prevented her from being able to care
    for the minor and from benefitting from reunification services.
    The Department’s Pre-Termination Report
    The July 15, 2014 section 366.26 report noted that the minor had several violent
    behavioral incidents in her pre-kindergarten program. She had bitten four children and
    had her hands wrapped around the throat of another. She had also been violent with her
    teacher. The minor had severe emotional and behavioral issues, which included hurting
    herself. She started therapy in December 2013 and had made progress. Her caretakers
    reported she no longer pulled out her hair or hurt herself, although she continued to act
    violently against others. There was an increase in violent behaviors following visits and
    phone calls with mother. In July 2014, the minor was referred to a higher level of
    therapy based on her aggressive behaviors in school. In August 2014, the social worker
    observed a bonded and loving relationship between the minor and her caretakers. The
    minor was excited and happy. She reported on her summer and their family activities.
    She referred to her caretakers as mom and dad and stated she liked living with them.
    The minor had been living in the caretaker’s home for 10 months and appeared
    bonded and comfortable in the home. Visits with mother continued to be supervised.
    The minor appeared to lose interest in mother’s conversations and would try to get away
    from her. Their conversations would upset the minor and mother did not “acknowledge
    or notice the confusion and emotional upheaval this caused” the minor. The caretakers
    reported the minor had an increase in behavioral problems after her visits.
    Mother’s Petition to Modify & Termination of Parental Rights
    On July 17, 2014, mother filed a section 388 petition requesting the court change
    its order that mother be bypassed for services based on changed circumstances and the
    best interests of the minor. Mother stated she had been clean and sober for “an extended
    period of time,” had a home and income, and was in counseling. Mother had been
    11
    approved for social security benefits based on her mental illness. She received a
    significant social security payment and purchased a motor home, which is her primary
    residence. Mother had permission to park her motor home on Ms. Trisch’s property, and
    utilize the utilities. She did not pay rent, but helped with Trisch’s household bills. The
    property had no accommodations for sewer disposal, so mother had to take the motor
    home to a disposal facility in order to use the sinks and bathroom of the motor home.
    Mother is allowed to use Trisch’s bathroom and connect the motor home to Trisch’s
    electricity. The Department did not have information on Trisch’s criminal or child
    welfare history, and the Department was unable to verify the safety of the location where
    mother was parking the motor home.
    Mother stated she had been drug tested regularly by Sutter County probation, but
    rescinded her release of authorization, so the probation officer could not exchange
    information with the Department. Mother claimed her current therapist believed mother
    could care for the minor. She stated it was in the minor’s “best interests to be raised by
    her mother with whom she has a long term, loving and previously stable relationship.”
    Mother provided a copy of individual progress notes written by Dr. Epstein of Sutter
    Yuba Mental Health, dated July 9, 2014. Mother revoked her release of authorization
    with Sutter Yuba Mental Health, so the Department was unable to obtain any additional
    information regarding Dr. Epstein’s service or the extent of his familiarity with mother’s
    complete mental health history. Mother provided an individual progress note dated
    December 18, 2013, by Dr. Jaurigue. The note concluded there was no basis to begin
    medication at that time. Dr. Jaurigue, however, informed the social worker he could not
    be certain that mother did not need medication as he needed additional information.
    Sutter County probation referred mother to Donna Brown, a substance abuse counselor at
    Sutter Yuba Mental Health. Brown is not a licensed therapist.
    Mother argued she had been clean and sober for 11 months, had obtained housing
    in the last several months, had income in the form of social security, acquired a vehicle,
    12
    and had started school. Mother also noted she was currently in therapy and her therapist
    did not believe she needed medication. Mother argued she was being provided services
    from Sutter Yuba Mental Health as a condition of probation, in addition to seeing her
    therapist. Mother did not present evidence of any specific reports from mental health
    professionals at Sutter Yuba Mental Health, but argued she was complying with
    probation, and Sutter Yuba Mental Health indicated they had evaluated her and were
    providing the necessary services. Mother also argued the evaluations were no longer
    indicative of her current status, because at the time she was not sober. Accordingly,
    mother argued since she was now sober, she no longer had a dual diagnosis and there
    would be other treatment options available to her. Mother acknowledged she had not
    presented any evidence on that point, or an evaluation suggesting she no longer needed
    medication. Mother argued the allegations which led to detention were related to her
    drug addiction, and claimed that mental health concerns might have been addressed
    because she was now sober. She again acknowledged there was no evidence to support
    that claim.
    As to the best interests of the minor, mother argued there was an “accepted
    position that the child is, generally speaking, better off with a family member or certainly
    the parent.” Mother also argued there was no indication that services would be
    detrimental to the minor. The minor had lived with mother for four years, and had only
    been out of mother’s custody for 11 months. Mother argued that at the time of detention,
    the minor had a very loving and secure relationship with her. Mother did acknowledge
    that the minor had been provided a stable home with the relative caretakers for 10
    months. Mother maintained, however, that it was in the minor’s best interests to be
    “placed with her mother who we have no information that she is likely to have any
    further issues with her sobriety and is currently working on the mental health issues that
    may still exist.”
    13
    The Department argued mother’s circumstances were changing, but not changed.
    Mother had not presented any credible evidence to demonstrate she had the ability to
    benefit from services and could safely care for the minor. The primary reason
    reunification services were denied related to mother’s mental health problems. Those
    issues remained unaddressed. The Department noted mother had documented mental
    health issues since 1987, and admitted drug use since she was a teenager. Mother’s
    therapist was a substance abuse counselor, not a mental health therapist. Minor’s counsel
    also noted that probation’s focus was different than that in a dependency court. They
    were not focused on the child.
    The Department argued the focus was now on permanence and stability for the
    minor. The minor had never been returned to mother since detention in September 2013.
    She had lived with her current caretakers since October 2013. As of January 2014,
    mother’s visitation was reduced to one hour a month. The visits were always supervised,
    and the quality of the visits was questionable. The minor was observed to be withdrawn
    and upset when interacting with mother. After visits she was easily able to separate from
    mother and would frequently regress behaviorally. The minor’s placement was stable,
    she was bonded to her relative caretakers, and she looked to them for her day-to-day care
    and necessities. Indeed, minor’s counsel also reported the minor appeared bonded with
    the relative caretakers, her needs were being met, and she was happy and well taken care
    of.
    The juvenile court noted previous psychiatric evaluations had concluded mother
    had distorted perceptions about love and connection, which the juvenile court found
    particularly troubling in terms of mother’s ability to understand her parental role with the
    minor and to differentiate between her needs and the minor’s. The juvenile court also
    noted all three psychiatric evaluations, and the evaluations going back 25 years, stated
    mother needed medication—which she testified she was unwilling to take. The juvenile
    court noted there had been no change as to those concerns. The juvenile court found
    14
    mother had made significant changes and was perhaps in the process of making some
    other changes, but found there was no evidence mother had overcome her distorted
    perceptions of love and connection. This point was particularly relevant in mother’s
    assessment of the strength of the bond between her and the minor. The court did not
    believe their bond to be what mother perceived it as, and agreed mother lacked insight in
    terms of the minor’s needs. Furthermore, the court noted visits between mother and the
    minor were challenging and frequently the minor would be upset by the conversations
    during the visits. Mother did not acknowledge or notice the confusion or emotional
    upheaval her actions caused the minor. The caretakers reported the minor had increased
    behavior problems after visits. The court found it was irrefutable mother had a very
    serious problem with addiction and a mental health diagnosis reaching back 25 years.
    The court also found there was no evidence that her sobriety had “cured” her underlying
    mental health diagnosis, so there was a lack of evidence of changed circumstances.
    There was no indication that the probation services were adequate to address the
    underlying causes that brought the matter to the dependency court. Mother had not
    demonstrated any ability to work with the Department, she had 25 years of documented
    psychological problems and drug and alcohol abuse, and there was no evidence that
    without targeted treatment her current sobriety would be sustainable. Accordingly, the
    juvenile court denied mother’s section 388 petition. The minor was found adoptable and
    parental rights were terminated.
    DISCUSSION
    Mother contends the juvenile court abused its discretion in denying her section
    388 petition. She contends she demonstrated changed circumstances, specifically “her
    ability to maintain sobriety and her success in finding suitable housing.” She also
    claimed reunification services were in the minor’s best interests as she had been
    consistent in her visitation, she had raised the minor for the first four years of her life, and
    mother was loving and affectionate toward the minor.
    15
    Under section 388, a parent may bring a petition for modification of any order of
    the juvenile court based on new evidence or a showing of changed circumstances. “The
    parent requesting the change of order has the burden of establishing that the change is
    justified. [Citation.] The standard of proof is a preponderance of the evidence.” (In re
    Michael B. (1992) 
    8 Cal.App.4th 1698
    , 1703.) “A section 388 petition must show a
    change of circumstances and that modification of the prior order would be in the best
    interests of the minor child. [Citations.] To support a section 388 petition, the change in
    circumstances must be substantial. [Citation.]” (In re Ernesto R. (2014) 
    230 Cal.App.4th 219
    , 223.) “Determination of a petition to modify is committed to the sound discretion of
    the juvenile court and, absent a showing of a clear abuse of discretion, the decision of the
    juvenile court must be upheld.” (In re S.R. (2009) 
    173 Cal.App.4th 864
    , 870.) “Not
    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.” (Ibid.)
    Here, mother did not establish changed circumstances. In January 2014 when
    reunification services were denied, mother stated she had been sober for 138 days, had
    begun a parenting class and an alcohol dependency class, was attending AA meetings
    regularly, and had become a full-time college student. She was not taking her prescribed
    psychiatric medication and was unwilling to do so. Thus, the only changes alleged from
    the time when reunification services were denied, were that she had allegedly been sober
    for 11 months, since August 2013, and now had a home.
    From the earliest stages of the proceedings, mother stated she was seeking mental
    health treatment and attending AA/NA meetings. She started using marijuana and
    methamphetamine as a teenager, and used both regularly for years. She completed at
    least one drug rehabilitation program, had periods of sobriety, and went back to using
    drugs. She admitted using drugs to self-medicate. Throughout the proceedings mother
    self-reported periods of sobriety that were belied by numerous and repeated positive drug
    16
    tests. Mother did not submit any drug tests to demonstrate her sobriety since January
    2014. However, between September 2013 and December 2013, mother had 34 positive
    drug tests. Mother refused to allow the Department to obtain additional information with
    regard to any mental health treatment or counseling she had received since the disposition
    hearing. Mother presented no evidence that she no longer needed medication or that she
    could benefit from the provision of services without such medication. In the face of
    mother’s long-term addiction problems, which had included temporary periods of
    sobriety, an undocumented claim that mother had been sober for approximately six
    months did not create a changed circumstance. (In re Ernesto R., supra, 230 Cal.App.4th
    at p. 223.)
    The stability of mother’s housing depended on the grace of Trisch in allowing
    mother to park her motor home on her property and utilize her electricity and her
    bathrooms. Although she could park on Trisch’s property, because there was no sewage
    disposal on the property, mother could not utilize the sink or bathroom of the motor.
    Furthermore, there was no information on Trisch’s criminal or child welfare history.
    Mother’s procurement of basic housing was not a sufficiently changed circumstance,
    when the safety and stability of that housing remained uncertain.
    In the over 10 years since mother was diagnosed with a mental illness, she has
    undergone counseling sporadically. As a part of the treatment for her mental illness she
    has been prescribed various psychiatric medications. But she has never maintained a
    significant period of compliance with that medication. Each psychiatric evaluator
    concluded mother would need psychotropic medication and ongoing mental health
    treatment, in addition to completing a substance abuse program, in order to benefit from
    reunification services. Mother provided no evidence to rebut these conclusions. Mother
    had not started taking psychiatric medication and, in fact, maintained her refusal to do so.
    Mother also failed to meet her burden to establish that ordering reunification
    services would be in the minor’s best interests. “To understand the element of best
    17
    interests in the context of a 388 petition filed, as in this case, on the eve of the.26 hearing,
    we turn to the Supreme Court’s language in [In re] Stephanie M. [(1994)] 
    7 Cal.4th 295
    :
    ‘[A]t this point “the focus shifts to the needs of the child for permanency and stability”
    [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.’ (Stephanie M., 
    supra,
     7 Cal.4th at p. 317; see In
    re Edward H. (1996) 
    43 Cal.App.4th 584
    , 594 [on eve of the .26 hearing, children’s
    interest in stability was court’s foremost concern and outweighed any interest in
    reunification].)” (In re J.C. (2014) 
    226 Cal.App.4th 503
    , 526.)
    The minor had lived with her relatives in a stable home for almost a year. She was
    happy and bonded to them. She referred to them as mom and dad and liked living with
    them. Her demeanor had improved during the proceedings, and she was friendlier and
    happier. The minor exhibited some serious emotional and behavioral problems, but had
    made progress through therapy. During that time, visits with mother remained
    supervised. During some of these visits the minor appeared to lose interests in mother’s
    conversation and would try to get away from her. Mother’s disagreement with how the
    minor referred to her caregivers, and herself, was visibly upsetting to the minor.
    Frequently after visits and phone calls with mother, the minor regressed behaviorally and
    had increased episodes of violence. Mother’s failure to recognize or acknowledge that
    she was causing the minor to be upset or confused was consistent with Dr. Wilkenfield’s
    conclusion that mother’s mental illness could pose a serious risk to any child in her care.
    Dr. Wilkenfield had specifically warned that because mental illness affects mother’s
    mood and causes deficits in her judgment, it could affect her ability to accurately
    perceive or focus on her child’s needs. Mother’s failure to recognize that her visits were
    negatively impacting minor was also consistent with Dr. Franklin’s concerns about
    mother’s distorted perceptions about love and connection, her ability to understand her
    parental role with the minor, and to differentiate between her needs and those of the
    18
    minor. In this case, “[g]ranting a section 388 petition would delay selection of a
    permanent home and not serve the child’s best interests.” (In re Ernesto R., 
    supra,
    230 Cal.App.4th at p. 224.)
    DISPOSITION
    The order of the juvenile court denying mother’s petition for modification is
    affirmed.
    RENNER                , J.
    We concur:
    BLEASE                     , Acting P. J.
    HULL                       , J.
    19
    

Document Info

Docket Number: C077277

Filed Date: 4/8/2015

Precedential Status: Non-Precedential

Modified Date: 4/18/2021