In re Antonio C. CA2/2 ( 2021 )

Filed 4/13/21 In re Antonio C. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re ANTONIO C., a Person B307682
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No.
18CCJP06275A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
Y.C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Stephen C. Marpet, Judge Pro Tempore.
Affirmed.
Emery El Habiby, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, Acting County Counsel, Kim
Nemoy, Assistant County Counsel, and Veronica Randazzo,
Deputy County Counsel, for Plaintiff and Respondent.
______________________________
Appellant Y.C. (mother) appeals from the juvenile court’s
denial of her Welfare and Institutions Code section 3881 petition
requesting the reinstatement of reunification services with her
son, Antonio C. (minor, born 2018), weekly drug testing, and
unmonitored visitation. Finding no abuse of the court’s
discretion, we affirm.
BACKGROUND
Referral
On the day minor was born, the Los Angeles County
Department of Children and Family Services (DCFS) received a
referral alleging general neglect of minor by mother. In response,
a DCFS social worker met with mother at the hospital. At that
time, mother was a juvenile dependent. Mother admitted to
having an extensive history of drug use since she was 12 years
old. She had last used methamphetamine right before she found
out she was pregnant.
DCFS concluded that minor’s safety could not be ensured if
he were released to mother. In addition to her drug abuse,
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2
mother had an extensive history of running away as a minor and
there was a high risk that she would flee to Mexico with minor.
Therefore, minor was detained the day after his birth and placed
in foster care in the home of Mr. and Mrs. G. (foster parents).2
Dependency Petition
On September 28, 2018, DCFS filed a single-count
dependency petition seeking the juvenile court’s exercise of
jurisdiction over minor. Brought under section 300,
subdivision (b)(1) (failure to protect), the petition alleged that
mother had a six-year history of drug abuse and was a current
user of methamphetamine, heroin, and marijuana, which
rendered her unable to provide regular care of minor. The
petition also alleged that mother had abused methamphetamine
while pregnant with minor.
Detention Hearing
By the time of the detention hearing on October 2, 2018,
mother had turned 18 years old. The juvenile court found that a
prima facie case existed to detain minor from mother. The court
ordered reunification services, including an inpatient drug
treatment program, a parenting program, and individual
counseling. Mother was granted monitored visitation.
Adjudication Hearing
On December 5, 2018, the juvenile court sustained the
dependency petition as pled, declared minor a dependent of the
court, and removed minor from mother.
Mother was ordered to participate in a full drug program
with aftercare, weekly random or on demand drug testing, and a
2 Throughout the life of this dependency case, efforts to
locate minor’s alleged father were unsuccessful. He is not a party
to this appeal.
3
12-step program. She was required to undergo a psychiatric
evaluation and to take all prescribed psychotropic medications.
She was also ordered to participate in parenting classes and
individual counseling. The court granted mother monitored
visitation.
Reunification Period
Throughout the reunification period, minor remained in the
home of his foster parents. They provided minor with a safe and
stable home, met his medical and developmental needs, and
made him available for visitation with mother and contact with
the DCFS social worker. Minor appeared to have a strong bond
with his foster parents.
Mother participated in monitored visitation with minor.
She would often arrive late, however, or cancel last-minute.
When offered make-up visits, mother would not follow through.
During the visits, mother would at times have minor interact
with people who had not been preapproved by DCFS.
On her own initiative, mother enrolled in an inpatient
substance abuse program in early October 2018. She left the
program in January 2019, stating that another patient was
making it difficult for her. She returned for treatment the next
month, attending weekly individual counseling sessions and 12-
step meetings. In July 2019, mother transitioned from the
inpatient treatment program to a sober living home. In August
2019, she enrolled in a six-month outpatient program, through
which she attended Mommy and Me classes with minor. Mother
left the sober living home in October 2019, claiming that the
other “residents would ‘talk a mess’ and were not providing a
good example [for] her.” By the middle of October 2019, mother
was residing with her grandmother and minor sibling. In
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December 2019, she was engaged to be married and planned to
move in with her fiancé,3 who had a recent criminal history.
Mother consistently submitted to drug and alcohol testing.
The tests all returned negative except for when she tested
positive for alcohol on May 17, 2019, and for THC on June 20,
2019. It was possible that the positive alcohol result was caused
by her prescribed asthma inhaler. Mother denied using THC.
Mother failed to drug test on December 24, 2019.
According to mother’s therapist, mother was doing well in
therapy but progress had been slow. Mother frequently cancelled
sessions, only attending about once per month. Mother did not
provide DCFS with her psychiatrist’s contact information, so it
was unable to determine her compliance with taking psychiatric
medication.
In its February 4, 2020, last minute information for the
court, DCFS recommended that the juvenile court terminate
reunification services. Although mother was participating in a
drug program, parenting classes, and individual counseling, she
had not yet completed any court-ordered programs. Nor had she
“addressed case issues including family history and dysfunction,
child protection, mental health, substance abuse, CSEC
(Commercial Sexual Exploitation of Children) behavior, and self-
esteem.”
Termination of Reunification Services
The contested 12-month review hearing was held on
February 6, 2020. Finding that mother’s progress had not been
substantial and that she had not complied with the case plan, the
juvenile court terminated reunification services.
3 In the record, mother’s fiancé is sometimes referred to as
her boyfriend. For simplicity, we refer to him here as her fiancé.
5
Post-Reunification Period
According to reports filed by DCFS in May 2020, minor
remained in the home of his foster parents, where his basic,
medical, and developmental needs were met. The foster parents
“appear[ed] to have a healthy and strong marriage.” They
expressed their love and attachment for minor, and wanted to
adopt him. Minor was cheerful and comfortable engaging with
his foster parents and displayed a secure and loving bond with
them. He “refer[red] to them as ‘mama’ and ‘dada.’”
Mother participated in routine monitored visitation with
minor, which took place by video chat due to the COVID-19
pandemic. Mother struggled to adhere to the visitation
guidelines. She was sometimes late or missed visits. Her fiancé
had been asked not to participate in the visits, but he was still
sometimes observed or overheard nearby.
DCFS recommended that the juvenile court terminate
mother’s parental rights.
Mother’s Section 388 Petition
On June 2, 2020, mother filed a section 388 petition
seeking the resumption of reunification services for six months,
weekly drug testing, and unmonitored visitation. Mother
contended that she had continued to participate in outpatient
programs and had completed 23 hours of parenting classes, 12
Mommy and Me sessions, and more than 72 12-step meetings.
She had attended her required group sessions regarding relapse
prevention, anger management, and domestic violence. She had
submitted to nine random drug tests, which all returned
negative.4
4 Mother submitted documentation of negative tests from
August 16, 2019; October 11, 2019; November 4, 2019;
6
As to why the requested modification would be better for
minor, mother stated: “Mother has been sober for a year, and she
has maintained regular visitation with [minor] . . . . Mother has
previously participated in Mommy and [Me] classes. [Minor]
responds well to . . . mother.”
Interim Review Report
In August 2020, DCFS filed a supplemental report
addressing mother’s section 388 petition.
A dependency investigator had interviewed mother on
August 3, 2020. When asked why she had not been able to
reunify with minor, mother responded, “‘Not being stable and not
being on time.’” As to never having unmonitored visitation with
minor, mother explained, “‘When I left the sober living home and
told her (CSW) I was leaving to my grandmother’s home, because
she had an open case with my sister, so I guess it was not an
appropriate living home, so I didn’t get my [unmonitored] visits.’”
Mother had been renting a room for about four months.
She did not live with her fiancé, as they had broken up. He had
“relapsed and that is a big no-no[.]” Mother was pregnant and
due that month. She was attending NA/AA meetings by Zoom.
She denied using drugs since September 25, 2018.
Mother was not employed. She had been fired from her job
at Pizza Hut at the end of February 2020. Mother had completed
school through the eighth grade, but she planned to obtain her
GED.
Regarding a recent arrest in June 2020, mother stated: “‘I
was at the projects that night. I guess there were shots [fired]
and a bunch of people ran. I ended up going to KFC and the cops
December 20, 2019; January 8, 2020; January 28, 2020;
February 19, 2020; March 9, 2020; and March 17, 2020.
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showed up and got us. But they let us go because they thought
we had something to do with it; they had the wrong people.’”
When asked what had changed since the termination of
reunification services and why she could now be successful in
reunifying with minor, mother stated: “‘I have really matured
from where I began. I was very childish before; I was not getting
my act straight. Now, I am showing up on time. I am taking
responsibility for my actions. I am really trying to be stable. I
have a lot of things going on now. Those childish moments are
over now.’”
Although mother had completed some court-ordered case
plan services, DCFS remained concerned by “mother’s housing
instability and co-dependent behavior with her intimate
partners.” A DCFS social worker involved in the case believed
that mother was still living with her fiancé, as she had seen or
heard the fiancé during previous meetings and phone calls less
than a month prior. Mother was not forthcoming about the
relationship.
DCFS recommended that the juvenile court deny mother’s
section 388 petition. It opined that mother “still needs to
developmentally grow, gain true insight and exhibit maturity and
establish a healthy foundation and environment. While . . .
mother has completed most of her court mandates, she has yet to
demonstrate a significant change in her circumstances that
would be greater than disrupting her son’s current safety and
stability. At this time, the child . . . remains in a stable, loving
and safe home in which his caregivers are committed to providing
him with permanency through adoption while maintaining ties
and a relationship with [h]is mother.”
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Order Denying Mother’s Section 388 Petition
The juvenile court heard and denied mother’s section 388
petition on August 17, 2020. While the court agreed that “mother
certainly ha[d] made some modifications to her lifestyle[,]” it
concluded that she was “in a changing position” but had not
“changed.” The court also found that it was not in minor’s best
interests to grant the petition. It noted that “the only parent[s]
this child knows [are] the caretakers that currently have him.”
Appeal
Mother timely appealed from the order denying her
section 388 petition.
DISCUSSION
On appeal, mother argues that the juvenile court abused its
discretion by denying her section 388 petition because she
showed both changed circumstances and that the request
promoted minor’s best interests.
I. Applicable Law
A parent or other interested party may petition the juvenile
court to change, modify, or set aside a previous order in
dependency proceedings. (§ 388, subd. (a)(1).) “The petitioner
has the burden of showing by a preponderance of the evidence
(1) that there is new evidence or a change of circumstances and
(2) that the proposed modification would be in the best interests
of the child.” (In re Mickel O. (2011) 197 Cal.App.4th 586, 615
(Mickel O.).)
To satisfy the first prong, “the change in circumstances
must be substantial.” (In re Ernesto R. (2014) 230 Cal.App.4th
219, 223.) Merely changing—as opposed to changed—
circumstances will not suffice. (Mickel O., supra, 197 Cal.App.4th
at p. 615.)
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For the second prong, specifically when determining
whether reinstatement of reunification services is in the best
interests of the child, the juvenile court must consider whether
“the specific factors that required placement outside the parent’s
home” have been remediated and prioritize “the goal of assuring
stability and continuity” for the child. (In re Angel B. (2002)
97 Cal.App.4th 454, 463–464.) “[A]fter reunification services
have terminated, a parent’s petition for . . . reopening
reunification efforts must establish how such a change will
advance the child’s need for permanency and stability.” (In re
J.C. (2014) 226 Cal.App.4th 503, 527 (J.C.).)
II. Standard of Review
We review the denial of a section 388 petition for abuse of
discretion. (In re Marcelo B. (2012) 209 Cal.App.4th 635, 642
(Marcelo B.).) “An abuse of discretion occurs when the juvenile
court has exceeded the bounds of reason by making an arbitrary,
capricious or patently absurd determination.” (Ibid.)
III. Analysis
Because mother did not demonstrate a substantial change
of circumstances or that reunification would serve minor’s best
interests, the juvenile court did not abuse its discretion by
denying her section 388 petition.
A. Change of circumstances
Following the termination of reunification services in
February 2020, mother continued to participate in outpatient
programs, drug test negative, and participate in routine
monitored visitation with minor. She had also found a room to
rent. These were positive, commendable steps. But given the
totality of the evidence, they could reasonably be viewed as
indicative of changing—as opposed to substantially changed—
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circumstances in mother’s life, which are insufficient for a
section 388 petition. (See Mickel O., supra, 197 Cal.App.4th at
p. 615 [a section 388 “petitioner must show changed, not
changing, circumstances”].)
Mother’s visitation remained inconsistent, as she was
sometimes late or would miss the visit entirely. She also
continued to struggle with adhering to the visitation guidelines
by allowing her fiancé to be in the vicinity even though he had
been asked not to participate. Although mother claimed that she
had broken up with her fiancé and did not live with him, a DCFS
social worker had seen or heard the fiancé during previous
meetings and phone calls and believed that mother was still
living with him. Mother had been fired from her job and, months
later, was still not employed.
A few weeks before the juvenile court denied the section
388 petition, mother told the dependency investigator, “I am
really trying to be stable.” But “trying to be stable” is not the
same as being stable. Mother’s failure to comply with visitation
rules, consistently attend visitation, be forthcoming about her
relationship with fiancé and living situation, and maintain
employment demonstrate continued instability in her life. It was
not “arbitrary, capricious or patently absurd” (Marcelo B., supra,
209 Cal.App.4th at p. 642) for the court to determine that mother
had not made a sufficient showing of substantially changed
circumstances.
B. Minor’s best interests
The juvenile court also acted well within its discretion in
concluding that minor’s best interests would not be promoted by
reinstating reunification services, ordering weekly drug testing,
and granting unmonitored visitation.
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Minor had lived in the home of his foster parents since he
was two days old. As the juvenile court noted, they were the only
parents he had ever known. He “refer[red] to them as ‘mama’
and ‘dada.’” They had provided minor with a stable, loving home
for nearly two years and wanted to adopt him. In contrast,
mother had never progressed to unmonitored visitation with
minor.
Even if we credit mother’s assertion that minor had some
bond with her, mother’s petition failed to even address—let alone
establish—how reinstating reunification services, or the other
requested modifications, would “advance [minor’s] need for
permanency and stability.” (J.C., supra, 226 Cal.App.4th at
p. 527.) To the contrary, granting mother’s petition would
necessarily delay minor becoming a permanent member of his
foster family in exchange for the mere possibility that minor
might eventually reunify with mother. This would “not promote
stability for the child or the child’s best interests.” (In re
Casey D. (1999) 70 Cal.App.4th 38, 47.)
DISPOSITION
The order denying mother’s section 388 petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
_______________________, J. _____________________, J.
CHAVEZ HOFFSTADT
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