In re A.P. CA4/2 ( 2023 )

Filed 6/8/23 In re A.P. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re A.P., a Person Coming Under the
Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E079358
Plaintiff and Respondent, (Super. Ct. No. RIJ2000059)
v. OPINION
A.P.,
Defendant and Appellant;
C.P. et al.,
Defendants and Respondents.
APPEAL from the Superior Court of Riverside County. Cheryl C. Murphy, Judge.
Affirmed.
Marisa L. D. Conroy, under appointment by the Court of Appeal, for Defendant
and Appellant.
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Minh C. Tran, County Counsel, Teresa K.B. Beecham and Melinda H. Frey,
Deputy County Counsel, for Plaintiff and Respondent.
Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and
Respondent, C.P.
John P. McCurley, funder appointment by the Court of Appeal, for Defendant and
Respondent, M.P.
I.
INTRODUCTION
Respondent Riverside County Department of Social Services (DPSS) detained
minor A.P. and initiated juvenile dependency proceedings after receiving a referral that
Mother and Father (Parents) sat outside their home in a car abusing a controlled
substance while A.P., their four-year-old daughter, was inside their home being sexually
abused by a housemate.
A.P. appeals the juvenile court’s July 7, 2022 order granting her Mother’s petition
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brought under Welfare and Institutions Code section 388, requesting an additional six
months of reunification services. A.P. contends granting the section 388 petition was an
abuse of discretion because Mother failed to demonstrate a material change in
circumstances or that granting the petition was in A.P.’s best interests. A.P. argues
Mother failed to resolve her longstanding substance abuse problem and did not overcome
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Unless otherwise noted, all statutory references are to the Welfare and
Institutions Code.
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the presumption that continued foster care was in A.P.’s best interests. DPSS, Mother,
and Father are respondents in this appeal.
We conclude that, while there was evidence that Mother tested positive for
marijuana and was intoxicated within a few months of the section 388 petition hearing,
there was no abuse of discretion in the juvenile court granting Mother’s section 388
petition and authorizing an additional six months of reunification services for Mother.
We therefore affirm the July 7, 2022 order granting Mother’s section 388 petition for an
additional six months of reunification services.
II.
FACTUAL AND PROCEDURAL BACKGROUND
On January 23, 2020, DPSS received a referral that Parents’ housemate, K.M., had
sexually abused A.P. At that time, A.P. was living with Mother, Father, two housemates,
and the owners of the home. Law enforcement officers arrested K.M., and Mother and
A.P. were transported to the hospital, where A.P. was given a Sexual Assault Response
Team exam. The following day, A.P. was placed in a foster home.
A. Juvenile Dependency Petition
On January 28, 2020, DPSS filed on behalf of A.P. a juvenile dependency petition
under section 300, subdivisions (b) (failure to protect) and (d) (sexual abuse). The
petition alleged that, while Parents left A.P. unsupervised, she was sexually abused by a
housemate. Parents knew the household member had molested his niece, yet they left
A.P. unsupervised in the home with him while Parents were under the influence of
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controlled substances. In addition, Parents had a history of engaging in domestic
violence.
When DPSS interviewed Parents on January 23, 2020, Father reported having
been arrested for domestic violence because he made a hole in the wall. He denied
hitting Mother. While the investigating officer interviewed Mother regarding the
domestic violence, Father attempted to answer for Mother and stated Mother could only
be contacted through him. When he was asked not to interrupt during the interview,
Father asked Mother several times not to provide the requested information. He
acknowledged that while Mother was separately interviewed, he had been listening
through the door. Several times Father attempted to terminate Mother’s interview.
Mother told the police she knew K.M. had previously been accused of molesting a
child, but K.M. had denied it when asked about it. Mother admitted using marijuana and
said she had used methamphetamine with Father and K.M. three days before her
interview. Mother reported that she recently started using methamphetamine on January
1, 2020. Mother agreed to participate in parenting classes but declined substance abuse
treatment.
Parents had a welfare history, which included an inconclusive referral in June
2016, in which Parents allegedly slapped A.P. when she cried or would not sleep, and
Parents used methamphetamine. There was also an inconclusive referral in October
2017, that Father left A.P. at the pool unsupervised while he used drugs, and she almost
drowned. There was a referral alleging domestic violence between Parents in 2018,
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resulting in property damage, and several days later a referral alleging Parents were using
marijuana and methamphetamine. DPPS reported that Father admitted to having a
history of drug use and it was believed Mother may have also been using drugs because
of her changed demeanor. The referrals were reportedly closed as inconclusive.
Parents admitted to chronically using marijuana. Mother minimized Parents’ drug
usage, claiming they did not have a drug problem. They refused to participate in drug
treatment programs. On January 27, 2020, they tested positive for methamphetamine and
marijuana. The paternal grandparents (PGPs) acknowledged Parents engaged in
continual domestic violence. DPSS obtained a protective custody warrant and removed
A.P. from Parents on January 24, 2020. At the detention hearing, the court ordered A.P.
detained and authorized reunification services and visitation for Parents.
B. Jurisdiction/Disposition Hearing
DPSS reported in its jurisdiction/disposition hearing report that there were
allegations Parents had a welfare history since 2016, beginning with the 2016 referral.
Mother denied substance abuse and tested negative for all substances. The 2016 referral
allegation was deemed unfounded. DPSS reported that a second referral in 2017 was also
deemed inconclusive because Parents could not be located to complete the investigation.
It was alleged Father left A.P. at the pool unsupervised while he used drugs and A.P.
almost drowned. There were also allegations of domestic violence between Parents and
paternal grandfather (PGF). There was an additional domestic violence referral in 2019,
between Parents, in which they argued and pushed each other, and Father vandalized
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their home. He left and then tried to re-enter by kicking in the front door to hit Mother.
Mother was injured and Father was arrested. He admitted to a history of drug use.
Mother reportedly may have also been using drugs. She indicated she would not leave
Father and bailed him out of jail.
Mother’s case plan recommended she participate in individual counseling, a
domestic violence program, parenting, and substance abuse treatment and testing.
Parents twice failed to meet with the DPSS social worker before the contested
jurisdiction hearing. Mother tested positive for marijuana on February 11, 2020, and
failed to show for tests on February 21, 2020, February 25, 2020, and March 6, 2020.
She tested negative on February 28, 2020
The jurisdiction/disposition hearing report stated that DPSS offered Mother a
housing referral but it was contingent upon Father not living there due to his criminal
history. After Mother said she would discuss the matter with Father, the social worker
received a text message from Mother’s phone stating, “‘This is [Father]. Who do you
think u are telling my girl to move out. Ur stupid for that. Lol she loves me n I never hit
a woman in my life keep reading what u see in paper dumb woman u offend me ur no one
and will always be no one my family is my family no one can break us apart.’” Mother
did not respond to the DPSS’s offer to provide housing and did not attend an interview
appointment.
At the contested jurisdiction/disposition hearing on March 17, 2020, the court
found the dependency petition true, adjudged A.P. a dependent of the court, ordered
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reunification services for Parents, and ordered parents to participate in their case plan
services. A.P. remained in a foster home.
C. Six-Month Review Hearing
DPSS reported that on August 3, 2020, Mother checked into an inpatient MFI
Recovery Center substance abuse program. She said she checked herself into the
program because she was pregnant with her second child and was using marijuana. She
did not want the child removed from her care. Her baby was due in November 2020.
Mother said she was still romantically involved with Father. Mother did not complete the
substance abuse program. She reported she left it on August 27, 2020, due to a family
emergency.
Mother failed to show for drug testing on August 24, 2020, September 4, 2020,
and January 7 and 13, 2021. She drug tested negative in 2020, on September 3, 17, 24,
October 8, 22, November 13, December 3, and 17. Parents regularly visited A.P. The
caregiver reported that A.P. enjoyed the visits.
At the six-month review hearing on September 17, 2020, the court found Mother
had made moderate progress and continued Parents’ reunification services.
D. Twelve-Month Review Hearing
DPSS reported in its 12-month status report that on December 29, 2020, Mother
enrolled in the Riverside County Substance Abuse Program. Her counselor reported that
Mother was not consistently testing but was attending classes and was scheduled to
complete the program in April 2021. On February 10, 2021, Mother’s substance abuse
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counselor reported that Mother had been attending her sessions, and her estimated
completion date was April 20, 2021. On December 3, 2020, the MOMS program
reported that Mother had enrolled in their domestic violence program but she had not
attended any sessions. Mother reported she was not attending the program or parenting
program because she had recently given birth and was adjusting to her new schedule. In
February 2021, she said she planned to enroll in a domestic violence program and was
enrolled in individual counseling. Her counselor reported that parenting classes were
being arranged.
As of March 2021, Parents were living together in a hotel with their second child,
who was born in October 2020. Mother was unemployed and Father was supporting
them. A.P. was doing well in her current foster home, where she had been since January
2020. Parents requested A.P. be placed with maternal grandmother (PGM), who
indicated she was willing to provide legal guardianship for her, if Parents did not reunify
with A.P. Assessment of placement of A.P. with PGPs was pending.
DPSS reported that Mother had made minimal progress in completing her case
plan. She had not completed any of her services or drug tested. Mother explained she
had been focused on obtaining housing and adjusting to her new schedule after giving
birth. DPSS reported that Mother understood she must complete her services and
demonstrate she would be protective of A.P. DPSS also stated that Mother had taken
responsibility for her substance abuse and admitted using marijuana for pain. She asked
for more time to complete her services. Parents were consistently visiting A.P. and the
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visits went well. DPSS recommended giving Parents an additional six months of
services.
At the 12-month hearing on March 18, 2021, the court ordered continued
reunification services for Parents. The court authorized liberalized visitation, contingent
upon case plan compliance.
E. 18-Month Hearing
DPSS filed an 18-month status review hearing report recommending terminating
Parents’ reunification services. On March 9, 2021, A.P. was placed with PGPs and was
happy there. Parents were still in a romantic relationship. Mother reportedly stopped
attending her treatment program and on April 29, 2021, re-enrolled in another substance
abuse program and individual counseling, which she had been attending weekly. Mother
also enrolled in a parenting program. Mother was not drug testing and had not re-
enrolled in domestic violence counseling. Mother began unsupervised visitation in May
2021. PGM had no concerns regarding the visits. DPSS concluded Mother had made
progress but A.P. could not be returned to her because she had not demonstrated she
could provide a safe, drug-free and violence-free home. She also had not completed any
of her case plan services.
On July 16, 2021, DPSS filed an addendum report recommending termination of
services. Mother had not completed a domestic violence program, parenting program,
substance abuse program, substance abuse testing, or counselling services. Mother failed
to show up for testing on April 22, 2021, May 3, 2021, May 13, 2021, and July 2, 2021.
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DPSS had not received any updates on Mother’s substance abuse treatment. During the
18-month status review hearing on July 22, 2021, the court terminated Parents’
reunification services and set a section 366.26 hearing.
F. Section 388 Petition and Section 366.26 Hearing
DPSS reported in its November 2022, section 366.26 hearing report that Mother
was living in an apartment with Father and their infant daughter, born in October 2020.
Mother was pregnant with their third child, due in February 2022. Mother was
unemployed. Father was supporting her. DPSS recommended a permanent plan for A.P.
of legal guardianship with PGM.
On March 28, 2022, Mother filed a section 388 petition, requesting an additional
six months of reunification services and transitioning A.P. to placement with Mother.
Mother argued changed circumstances, consisting of Mother completing substance abuse
treatment and a parenting course, participating in individual counseling, and maintaining
sobriety. She gave birth to her third child, who remained in her care and custody, without
any DPSS intervention. Mother argued that granting her section 388 petition was in
A.P.’s best interests because of her bond with Mother and because reunification would
provide an opportunity for Mother to raise A.P. with her two younger siblings. The court
granted Mother a hearing on her section 388 petition. At the section 388 petition hearing
on March 29, 2022, the court ordered DPSS to investigate the allegations in Mother’s
section 388 petition and continued the two matters.
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DPSS’s supplemental section 366.26 report filed in May 2022, and DPSS’s
section 388 petition response recommended vacating the section 366.26 hearing and
granting Mother’s section 388 petition. Mother was no longer living with Father.
Although DPSS reported Mother had made significant progress on her case plan on her
own, DPSS did not believe A.P. could currently be transitioned to Mother’s care. DPSS
wanted additional time to observe Mother’s progress made towards overcoming
substance abuse and domestic violence. A.P. reported she wanted to return to Mother’s
care. DPSS stated in its report that “The Department is hopeful that with additional six
months, the mother can demonstrate to the Department she can maintain sobriety and
refrain from domestic violence and reunify with her child. The chances of the child
returning to the mother’s care [are] high.”
Father, on the other hand, had not participated in his case plan services and had
not shown he was capable of providing A.P. with a safe, stable home. There was no
indication Father had completed or benefitted from domestic violence and substance
abuse services on his own.
Mother reported consuming marijuana to manage her back pain and intended to
renew her medical marijuana card. She also stated she was willing to avoid marijuana
and was going to schedule an appointment with a chiropractor. DPSS further reported
that Mother completed a substance abuse program in October 2021. She completed after
care services for relapse prevention in November 2021. Mother participated in individual
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therapy and completed a domestic violence program in December 2021, and she
completed a parenting program in June 2021.
At the continued section 388 petition hearing on May 23, 2022, DPSS reported
that Mother tested negative for drugs in March 2022, but missed a test on April 7, 2022,
and tested positive for marijuana and alcohol on April 15, 2022. The parties and court
agreed that the matter should be continued to allow for additional drug testing of Mother.
The court therefore continued the matter to July 7, 2022. The court authorized
unsupervised visitation for Mother if she tested negative.
During the contested section 388 petition hearing on July 7, 2022, DPSS requested
the court to grant Mother’s petition and her request for six months of additional services,
and vacate the section 366.26 hearing. Minor’s counsel opposed Mother’s section 388
petition, arguing that Mother failed to demonstrate changed circumstances. Mother
continued to test positive for drugs and alcohol, and her visits remained supervised. On
May 31, 2022, the police were called to Mother’s home after Mother came home
intoxicated. Also, Mother tested positive for alcohol and marijuana on April 15, 2022,
and was still testing positive for marijuana on June 29, 2022, and July 7, 2022.
Mother’s attorney argued Mother had “turned things around,” which was apparent
from the fact she was permitted to care for her infant without DPSS intervention. Mother
denied marijuana use and was willing to abide by the court directives not to use it.
Mother’s attorney asserted that if the court granted the section 388 petition, A.P. would
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not be immediately placed with Mother, and the court would have an opportunity to
observe and evaluate her conduct while using the additional reunification services.
The court found that Mother had demonstrated changed circumstances based on
Mother participating, on her own, in reunification programs to get “back on track and
reunify.” The court acknowledged Mother tested positive for marijuana right before the
section 388 petition hearing, but noted the test results showed a very low level of
marijuana, which indicated it may have been in her system for a while. The court further
noted that Mother had been caring for her infant, providing for all its needs and doing
well, without any DPSS involvement with the infant. The court therefore concluded it
would be in A.P.’s best interests for Mother to be provided with additional services,
which would hopefully lead to Mother reunifying with A.P.
The court granted Mother’s section 388 petition, vacated the section 366.26
hearing, and ordered an additional six months of reunification services, with continued
drug testing. Her visits remained supervised but the court authorized liberalized
visitation, including unsupervised, weekend, and overnight visits if DPSS deemed them
appropriate. The court ordered Father not to be present during Mother’s visits with A.P.
A.P. appealed the July 7, 2022 order.
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III.
APPLICABLE LAW
A.P. argues that the court abused its discretion by granting Mother’s section 388
petition. We disagree.
Section 388 permits the parent of a dependent child to petition the juvenile court
for a hearing to modify a previous order based on changed circumstances or new
evidence. (§ 388, subd. (a)(1).) The petitioning party bears the burden of showing new
evidence or changed circumstances and that the proposed modification is in the best
interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295.)
In determining whether the petitioning party has met its burden, “the court may
consider the entire factual and procedural history of the case.” (In re Justice P. (2004)
123 Cal.App.4th 181, 189.) “Whether the juvenile court should modify a previously
made order rests within its discretion, and its determination may not be disturbed unless
there has been a clear abuse of discretion.” (In re J.C. (2014) 226 Cal.App.4th 503, 525.)
The change in circumstances supporting a section 388 petition must be material. (In re
Ernesto R. (2014) 230 Cal.App.4th 219, 223 (Ernesto R.) [requiring a “substantial change
of circumstances”]; In re Mickel O. (2011) 197 Cal.App.4th 586, 615 [requiring the
change in circumstances to be “‘significant’” in nature].) “In the context of a substance
abuse problem that has repeatedly resisted treatment in the past, a showing of materially
changed circumstances requires more than a relatively brief period of sobriety or
participation in yet another program.” (In re N.F. (2021) 68 Cal.App.5th 112, 121 (N.F.);
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see also, In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081; In re Cliffton B. (2000) 81
Cal.App.4th 415, 423; In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9.)
With regard to evaluating the second factor, the child’s best interests, the focus of
the case after termination of reunification services and setting the matter for a section
366.26 hearing, shifts from the parents’ interest in the care, custody, and companionship
of the child to the child’s needs for permanency and stability. (In re Stephanie M., supra,7 Cal.4th at p. 317; In re J.C., supra, 226 Cal.App.4th at p. 527.) “A court entertaining a
section 388 petition at this stage in the proceedings ‘must recognize this shift of focus in
determining the ultimate question before it, that is, the best interest of the child.’” (N.F.,
supra, 68 Cal.App.5th at p. 121, quoting In re Stephanie M., supra, at p. 317.)
IV.
DISCUSSION
We conclude the juvenile court did not abuse its discretion by granting Mother’s
section 388 petition and ordering six months of additional reunification services to
Mother, even though Mother had a couple of recent positive marijuana tests. The
dependency petition is based on allegations of substance abuse, domestic violence, and
sexual abuse of A.P. by Parents’ housemate. As acknowledged by DPSS, Mother was
responsive to the sexual abuse allegations from the inception of the case. Mother
immediately reported the sexual abuse to the police, cooperated with investigation of the
charges against the housemate, and no longer lived with the housemate.
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As to the domestic violence allegation, Mother completed a domestic violence
program in December 2021, participated in individual therapy and, as of May 2022, was
no longer living with Father. Mother reportedly separated from him and was
appropriately caring for A.P.’s two younger siblings in the absence of any DPSS
intervention. There was no evidence of any subsequent domestic violence between
Mother and Father.
Mother cites In re I.B. (2020) 53 Cal.App.5th 133 (I.B.) for the proposition that
her separation from Father, who physically and emotionally abused her, was a material
changed circumstance which should not be underestimated. In In re I.B., the mother was
in an abusive relationship with the father of her children, I.B. and A.P. The I.B. court
concluded that the juvenile court did not abuse its discretion when granting the mother’s
section 388 petition on the ground the mother demonstrated changed circumstances as to
the domestic violence allegation by separating from the abusive father. (Id. at pp. 155,
163.)
The I.B. court acknowledged that, while the mother’s completion of her case plan
did not alone establish changed circumstances, doing so “was relevant evidence regarding
Mother’s forward progress over the past two years in separating herself from Father. The
enormous difficulty in separating from a controlling and dominating abuser . . . cannot be
overstated. (See Stoever, Transforming Domestic Violence Representation (2013) 101
Ky. L.J. 483 (Transforming Domestic Violence).)” (I.B., supra, 53 Cal.App.5th at p.
154.) The I.B. court also noted that, “After the court terminated services, Mother
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voluntarily continued with therapy, where she strove to learn how to be a better parent
and achieve lasting independence from Father.” (Id. at p. 155.)
The I.B. court rejected the minor’s and the social services agency’s argument that
the mother’s separation from the father for eight months was insufficient evidence of
changed circumstances, because the mother had repeatedly failed to separate permanently
from the father in the past. (I.B., supra, 53 Cal.App.5th at p. 155.) The court in I.B.
explained: “We reject these arguments because they fail to consider our standard of
review and improperly rely only on evidence unfavorable to Mother. To the extent the
juvenile court credited Mother’s testimony and other witnesses, we do not upset those
credibility determinations on appeal.” (Id. at p. 156.) Likewise, here, we give deference
to the juvenile court’s findings and will not reweigh the evidence.
In I.B., the court concluded the mother had rebutted the presumption that
continued out-of-home placement was in I.B.’s best interests by showing that I.B., who
was only three years old, was still bonded to the mother who had been I.B.’s primary
caregiver during the first seven months of his life. Thereafter, the mother visited him
every week and was ready and able to provide I.B. with a permanent, safe and loving
home. (I.B., supra, 53 Cal.App.5th at pp. 159-160.)
In the instant case, A.P. had lived with Mother for four years when removed from
Parents, A.P. stated she wanted to live with Mother, and Mother was living independently
from Father in her own home and appropriately raising A.P.’s two younger siblings.
Here, as in I.B., there was evidence Mother was the victim of domestic violence by
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Father, and this likely contributed to her substance abuse while living with him and her
failure to adequately supervise A.P. The evidence indicates that, as in I.B., Mother’s
separation from Father was a significant change which supported a finding of changed
circumstances.
As to overcoming the dependency petition allegation of failure to protect founded
on Mother’s substance abuse, after termination of services, Mother completed a
substance abuse program in October 2021, completed after care services for relapse
prevention in November 2021, participated in individual therapy, and completed a
parenting program in June 2021. Mother voluntarily completed her case plan on her own.
However, A.P. maintains that, at the time of the section 388 petition hearing, there
was evidence Mother still had a substance abuse problem, which may have been
diminishing or changing, but was not changed or resolved. A.P. asserts that, because
Mother failed to ameliorate the principal, remaining issue of substance abuse underlying
the juvenile dependency petition, the juvenile court abused its discretion in granting her
section 388 petition and ordering additional reunification services for Mother.
The juvenile court terminated Mother’s reunification services because she had not
completed her case plan, she was living with Father who also had not made any progress
on his case plan, she was not drug testing, she had not enrolled in domestic violence
classes, and she had not provided confirmation that she had completed a substance abuse
program. The court found that Parents “failed to participate regularly and make
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substantive progress in a court-ordered treatment plan and there is no substantial
probability that [A.P.] may be returned if given another six months or services.”
A.P. notes that, although Mother completed a substance abuse program in October
2021, afterwards, on April 15, June 29, and July 7, 2022, she tested positive for
marijuana. There is no evidence regarding the circumstances of these instances in which
Mother tested positive for marijuana, other than the lab test results were positive. There
is no evidence as to when Mother used the marijuana nor is there evidence that A.P.’s
younger siblings were in any danger as a result of Mother’s marijuana use.
A.P. also argues that on May 31, 2022, Mother returned home intoxicated after
going out in the evening. Mother explained to the investigating police officer that she
had asked Father, who was living with friends, to take care of the children at her home
while she went out with her sister. There is no evidence that the reported incident of
Mother returning home intoxicated endangered Mother’s children. The police reported to
Mother’s home in response to Father’s call after Mother arrived home intoxicated and
investigated the matter, without taking any further action.
We conclude evidence of Mother testing positive for marijuana in April, June, and
July 2022, and her intoxication in May 2022, is insufficient to support reversing the
juvenile court’s order granting Mother’s section 388 petition because there was
substantial evidence supporting the ruling. Mother had independently, on her own,
completed her case plan, she was appropriately caring for her other two younger children
without any DPSS intervention, she had separated from Father, and there was no
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evidence Mother’s single episode of intoxication in May 2022, and instances of testing
positive for marijuana in April, June, and July 2022, posed any risk of harm to A.P.’s
younger siblings or A.P.
Recently enacted section 328.2 and its legislative history demonstrate that
evidence of the use of legal substances, such as alcohol and marijuana, is not enough for
removal of a child from a parent. Effective January 1, 2023, the Legislature enacted
section 328.2 (A.B. 2595), which provides: “The State Department of Social Services
shall update all regulations, all-county letters, and other instructions relating to the
investigation of a minor who may be described by [s]ection 300 to ensure that, when a
social worker is investigating an alleged case of child abuse or neglect, a parent’s or
guardian’s use or possession of cannabis is treated in the same manner as a parent’s or
guardian’s use or possession of alcohol and legally prescribed medication.” (Italics
added.)
The author of A.B. 2595 (Cal. Assem. Bill No. 2595, 2021-2022 Reg. Sess.)
explained regarding the bill enacting section 328.2 that “‘California has found that
cannabis use, whether medical or recreational, is acceptable for adults. Thus, cannabis
use alone should not be a basis for state intervention into family life. As is the case with
alcohol and prescription medication, parents and guardians should be allowed to safely
and legally use cannabis without fear of having their children permanently removed from
their care, provided there are no other concerns regarding the child’s safety. As such,
AB 2595 directs the Department of Social Services to update its regulations to ensure that
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cannabis is treated as any other legal substance for the purposes of child custody and
dependency courts.’” (Sen. Rules Com., Off. Sen. Floor Analyses 3d reading on Jun. 13,
2022, background, p. 4, italics added.)
The Senate Rules Committee’s background analyses of A.B. 2595 (section 328.2)
notes that “Existing law specifies that substance use can be a cause of a neglect, causing a
child to fall under the jurisdiction of the juvenile dependency court. (See Penal Code
[s]ection 11165.13) However, the existing law is clear that substance use alone should
not result in the removal of a child, and California courts have repeatedly held that drug
use by a parent, absent other factors ‘is typically inadequate to establish dependency
jurisdiction.’ (See In re A.G. (2020) 2020 Cal. App. Unpub LEXIS 5276)” (Sen. Rules
Com., Off. Sen. Floor Analyses 3d reading on Jun. 13, 2022, background, p. 4, italics
added.)
The Senate Rules Committee also noted that the Legislature passed AB 788
(Calderon, Chapter 201, Statutes of 2021) amending section 361.5, to allow for
“reunification services to be provided to a parent with substance use issues who had
experienced a relapse. This codified a California Court decision, in which the court noted
‘a relapsed parent is far from hopeless. It is decidedly not fruitless to offer services to a
parent who genuinely made an effort to achieve sobriety but slipped up on the road to
recovery.’ (In re B.E. (2020) 46 Cal.App.5th 932, 941.) In that case, and other instances
impacted by the passage of AB 788, the CWS system was involved with the child
because there was substantiated allegations of abuse or neglect and the parent was
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seeking reunification services to help them address their substance use or other
challenges. Prior to the passage of AB 788, parents or guardians could be denied
reunification services if they had a history of extensive, abusive, and chronic use of drugs
or alcohol and had relapsed (i.e. passively resisted treatment) during a three-year period
prior to the filing of the petition that brought the child to the court’s attention.” (Sen.
Rules Com., Off. Sen. Floor Analyses 3d reading on Jun. 13, 2022, background, p. 5.)
The Senate Judiciary Committee agreed with the Senate Rules Committee
regarding AB 2595 (section 328.2) that “This bill seeks to address and prevent juvenile
court petitions from being filed solely on the basis of a parent or guardian’s use or
possession of legal cannabis by further clarifying that a parent or guardian’s cannabis
use or possession, without more, does not constitute abuse or neglect for purposes of the
juvenile court.” (Sen. Judiciary Com. Jun. 21, 2022, hearing report, executive summary,
p. 2, italics added.)
The Senate Judiciary Committee elaborated: “For purposes of this bill, the
relevant jurisdictional basis for dependency jurisdiction provides that a child is a
dependent of the juvenile court when the child has suffered, or there is a substantial risk
that the child will suffer, serious physical harm or illness as a result of the parent’s
inability ‘to provide regular care for the child due to the parent’s . . . substance abuse.’
[(§ 300, subd. (b)(1).)] There is no statutory provision for placing a child under the
jurisdiction of a court solely on the basis of a parent’s use or possession of controlled
substances. Even before California legalized adult recreational use and possession of
22
cannabis, the Courts of Appeal consistently held that cannabis use, without more, is
insufficient to establish a substantial risk of detriment to the physical or well- being of the
child.” (Sen. Judiciary Com. Jun. 21, 2022, hearing report, executive summary, p. 4,
italics added.)
The Senate Judiciary Committee further explained that, “Given that case law
prohibited a parent’s cannabis use, on its own, from being a basis for dependency
jurisdiction before the passage of Proposition 64 legalizing specified forms of adult use
and possession of cannabis,[fn. omitted] the passage of Proposition 64 should have made
it abundantly clear to child welfare agencies that a parent’s possession or use of a legal
substance cannot be the basis for a petition to make a child a dependent of the juvenile
court. At this point, threatening to remove a child from their parent’s care only because
of their cannabis use is akin to threatening to remove a child from their parent’s care
because the parent has an occasional cocktail or uses prescription medications with no
deleterious effects on the parenting itself. There is simply no legal basis for doing so.”
(Sen. Judiciary Com. Jun. 21, 2022, hearing report, comments, pp. 4-5, italics added.)
Therefore, “when a social worker is investigating an alleged case of child abuse or
neglect, the parent’s use or possession of cannabis is treated in the same manner as the
parent’s use or possession of alcohol or legally prescribed medication would be. . . .
[A]buse of any of these or other substances, by themselves, does not warrant assertion of
dependency jurisdiction over a child. That requires a showing of harm, or substantial risk
of harm, to the child.” (Sen. Judiciary Com. Jun. 21, 2022, hearing report, comments, p.
23
5.) The Senate Judiciary Committee, however, emphasized: “To be clear, nothing in
current law or this bill alters the existing law permitting a juvenile court petition when the
parent’s cannabis use causes such substantial harm or risk of substantial harm. . . . This
bill simply emphasizes—again—that it is long past time to stop treating cannabis use as
inherently suspect.” (Sen. Judiciary Com. Jun. 21, 2022, hearing report, comments, p. 5.)
A.B. 2595 and its legislative history support the proposition that the juvenile
court’s ruling granting Mother’s section 388 petition and ordering additional reunification
services was not an abuse of discretion. Mother had completed her case plan, and there
was a lack of evidence that Mother’s positive drug tests for marijuana in April, June, and
July 2022, and her intoxication in May 2022 supported a finding that she was unable to
provide appropriate, regular care for A.P. such that A.P. would be at substantial risk of
suffering serious physical harm or illness.
Although we do not condone parents using cannabis or alcohol while caring for
their children, because it can lead to inattentiveness and failure to protect their children,
as occurred initially in this case, section 328.2 clarifies that using cannabis and or alcohol
is not, alone, a valid basis for removing a child from a parent. We thus conclude it is not
a valid ground for denial of Mother’s section 388 petition, when there was no showing
linking Mother’s recent positive test results for marijuana and her intoxication on one
occasion to a failure or risk of failure to supervise appropriately her young children. We
therefore conclude the juvenile court could reasonably find that, as to Mother, there was
24
no longer a substantial risk of harm to A.P. based on domestic violence, sexual abuse, or
substance abuse.
A.P. argues there was evidence Mother had a long-standing substance abuse
problem based on evidence of three referrals, in 2016, 2017, and 2019. But the evidence
shows that in 2016, DPSS received a closed, inconclusive referral that Mother was
abusing methamphetamine and marijuana. The 2017 referral was also inconclusive and
closed, and concerned Father, not Mother, abusing drugs. The record cited by A.P. as to
a 2019 referral does not show that Mother was abusing substances in 2019. While there
was speculation that Mother might have had a long-term substance abuse problem
beginning in 2016, such allegations are not confirmed by the evidence in the record and
are merely inconclusive, speculative allegations, which the juvenile court could have
reasonably rejected as not sufficiently substantiated. Nor is there evidence Mother was
abusing controlled, illegal substances, such as methamphetamine, at the time of the
section 388 petition hearing. The court therefore could have reasonably found that
Mother was not abusing illegal drugs and did not have an unresolved long-term substance
abuse problem.
It was also reasonable for the juvenile court to find that Mother’s substance abuse
problem when DPSS filed the dependency petition was directly related to being engaged
in an abusive, controlling relationship with Father. The evidence shows that once Mother
separated from Father, she made significant progress in completing her case plan,
including addressing her substance abuse, and was appropriately caring for her newborn
25
and other young child, without DPSS intervention. After Mother separated from Father
and completed her case plan, DPSS therefore recommended that the court grant Mother’s
section 388 petition and order an additional six months of services because it was likely
Mother would reunify with A.P.
These circumstances provided a reasonable basis for the juvenile court to find that
granting Mother additional services was in A.P.’s best interests. The additional services
would provide additional time for Mother to establish her ability to appropriately care for
A.P. so that A.P. could be safely returned to Mother’s care and grow up with A.P.’s
younger siblings. We therefore conclude, based on a review of the totality of the
evidence, without reweighing it, that the court did not abuse its discretion by granting
Mother’s section 388 petition and ordering additional reunification services for Mother.
A.P. cites Ernesto R., supra, 230 Cal.App.4th 219, and N.F., supra, 68
Cal.App.5th 112, in support of her contention that Mother’s circumstances had not
materially changed and therefore the juvenile court abused its discretion in granting
Mother’s section 388 petition. Both cases are distinguishable. In Ernesto R., supra, 230
Cal.App.4th at page 223, after the juvenile court terminated parental rights to Ernesto, the
mother appealed, arguing her attorney provided ineffective assistance of counsel (IAC)
because he did not file a section 388 petition to modify an order bypassing reunification
services. Ernesto was removed from his mother because he tested positive for marijuana
at birth, the mother had a history of chronic substance abuse, and she had a child welfare
history in which she had previously failed to reunify with her two older children. After
26
Ernesto was detained, the mother participated in a drug treatment program, attended
group meetings, and tested negative for drugs. The juvenile court denied the mother
reunification services, concluding the mother’s efforts were “too little and too late.”
(Ernesto R., supra, at p. 222.)
At the contested section 366.26 hearing in Ernesto R., the child welfare services
agency (agency) reported the mother was living in a shelter and receiving an array of
services. The agency was concerned about the mother’s ability to maintain long-term
sobriety because she had participated previously in four treatment programs and had
relapsed. Also, she had failed to reunify with two of her older children due to her chronic
substance abuse and had used illegal substances while pregnant with Ernesto.
The Ernesto R. court rejected the mother’s IAC contention, explaining that “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.]
Appellant’s recent sobriety reflects ‘changing,’ not changed, circumstances. [Citation.]
Appellant has a history of drug relapses, is in the early stages of recovery, and is still
addressing a chronic substance abuse problem. (See In re Kimberly F.[, supra,] 56
Cal.App.4th [at p.] 531, fn. 9 [‘It is the nature of addiction that one must be “clean” for a
much longer period than 120 days to show real reform.’]; In re Clifton B. (2000) 81
Cal.App.4th 415, 423-424 [200 days of sobriety not enough].) Appellant’s completion of
27
a drug treatment program, at this late a date, though commendable, is not a substantial
change of circumstances.” (Ernesto R., supra, 230 Cal.App.4th at p. 223.)
The court in Ernesto R. also concluded that, even if there were a change in
circumstances, the mother failed to demonstrate that reunification services and liberalized
visitation would be in Ernesto’s best interests. (Ernesto R., supra, 230 Cal.App.4th at p.
223.) Ernesto had been in the care of his foster parents for the majority of his life and
was bonded to them. Granting a section 388 petition would delay selection of a
permanent home, which the Ernesto R. court concluded would not serve Ernesto’s best
interests. (Ernesto R., supra, at pp. 223-224.)
The factors the Ernesto R. court considered when evaluating Ernesto’s best
interests under section 388 were: “(1) the seriousness of the problem that led to the
dependency and the reason for any continuation of that problem; (2) the strength of the
child’s bond with his or her new caretakers compared with the strength of the child ’s
bond with the parent, and (3) the degree to which the problem leading to the dependency
may be easily removed or ameliorated, and the degree to which it actually has been.”
(Ernesto R., supra, 230 Cal.App.4th at p. 224; citing In re Kimberly F., supra, 56
Cal.App.4th at pp. 531-532.) The Ernesto R. court concluded that none of these factors
favored granting a 388 petition, and therefore not filing a section 388 petition did not
constitute IAC, because doing so would have been futile. (Ernesto R., supra, at p. 225.)
28
The instant case is distinguishable from Ernesto R. for many reasons. First,
Ernesto pre-dated legislation, such as A.B. 2595 (§ 328.5) and A.B. 788 (§ 361.5), which
clarified that parents shall not be deprived of reunification services based solely on the
use of marijuana or long-term substance abuse unless there is evidence it causes
substantial harm or there is a risk of substantial harm. (Sen. Judiciary Com. Jun. 21,
2022, hearing report, comments, p. 5.) Second, here, Mother’s attorney filed a section
388 petition, which was granted. Third, there was evidence that Mother’s drug abuse
may not have been long-term, chronic abuse. There was evidence she started abusing
drugs while with Father, who was abusive. Although during the dependency
proceedings, Mother completed substance abuse treatment and relapsed, there was
evidence that when she separated from Father, she made significant progress in
overcoming substance abuse and completing her case plan. Fourth, Mother provided
evidence she had succeeded in separating from Father and was living independently in
her own home, appropriately caring for her two other young children in the absence of
any DPSS intervention. While there remained the possibility that Mother might relapse
on marijuana and alcohol, those substances are not illegal in California, and there was no
evidence presented at the section 388 petition hearing that her relatively recent positive
tests for marijuana and the recent incident of intoxication presented any risk of harm to
her two younger children living with her or a future risk of harm to A.P. Fifth, Mother
had secured suitable housing. Sixth, Mother, on her own, enrolled and participated in
rehabilitative programs. On June 29, 2022, Mother’s therapist and the DPSS reported
29
that she had made great progress in overcoming her substance abuse and domestic
violence. Seventh, A.P. would benefit from the court granting the section 388 petition
because reunification, which DPSS concluded was likely if Mother were given additional
services, would allow Mother to raise A.P. with A.P.’s two younger siblings. Eighth,
unlike in Ernesto R., Mother not only filed a section 388 petition but, in addition, DPSS
recommended the court grant it, and the juvenile court did so based on finding changed
circumstances and that it was in A.P.’s best interests to grant Mother six months of
additional reunification services. Ninth, in Ernesto R., Ernesto was removed from his
mother because he tested positive at birth and therefore had been in the care of his foster
parents for the majority of his life, whereas in the instant case, A.P. was removed from
Mother when A.P. she was four years old and A.P. said she wanted to return to her care.
DPSS stated in its July 1, 2022, addendum to the section 366.26 report, that
Mother “has made significant progress on her case plan services on her own without the
Department’s assistance. The mother has completed her substance abuse outpatient
program, domestic violence services, and a parenting education program, with good
reviews. Additionally, the mother continues to be engaged in individual therapy sessions.
The Department is hopeful that with additional six month[s] of family reunification
services, the mother can demonstrated[sic] to the Department that she is able to care for
her child needs and address the concerns of domestic violence and substance abuse
concerns that led to the involvement of the Department.”
30
We recognize that DPSS further reported that it remained “concerned that the
parents will engage in acts of domestic violence and have issues of substance abuse, as
they have done so in the past.” Nevertheless, when balancing Mother’s significant
progress and the potential benefits to A.P. of granting Mother an additional six months of
reunification services with the likelihood of reunification, we conclude the juvenile court
did not abuse its discretion in granting Mother’s section 388 petition and additional
services.
In N.F., supra, 68 Cal.App.5th 112, which is also distinguishable, we affirmed the
juvenile court’s order denying the mother’s section 388 petition requesting six months of
reunification services. We rejected the mother’s argument that her circumstances had
changed. The mother argued that she had completed a 90-day residential substance abuse
treatment program about four months before the section 388 hearing and had remained
sober. She also had stable housing and was working. (N.F., supra, at p. 119.) There was
evidence, however, that about two months after she completed the substance abuse
program, the mother was charged with possession of a controlled substance. We noted in
N.F. that, “On this record, Mother’s brief period of sobriety and completion of a
treatment program was only the most recent attempt in a series of unsuccessful attempts
to overcome her substance abuse. Given Mother’s history, her recent completion of yet
another program did not constitute a material change in circumstances.” (N.F., supra, at
p. 122.)
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We further concluded that the mother’s assertions that she was working and had
housing did not establish material changes within the meaning of section 388. We
explained that “[t]he court denied her reunification services because of her unresolved
history of substance abuse. (§ 361.5, subd. (b)(13).) Without a showing that her
substance abuse had materially changed, the changes concerning her housing and
employment could not support her petition.” (N.F., supra, 68 Cal.App.5th at p. 122.)
In N.F., we also concluded the mother had not sufficiently established that
granting the mother reunification services was in the child’s best interests. (N.F., supra,
68 Cal.App.5th at p. 122.) The parents had received over three years of services, with the
mother relapsing numerous times after receiving substance abuse treatment. The young
child, N.F., had tested positive for methamphetamine and amphetamine at birth and was
removed from her mother. She was returned to her mother after about six months and the
family remained on family maintenance for about 32 months. Following the mother’s
relapse on methamphetamine, the child was once again detained in foster care and the
mother continued to struggle with relapsing on methamphetamine. Although N.F. had
been placed in the mother’s care for approximately two and one-half years, she also had
been in numerous foster care placements throughout the dependency proceedings.
At the time of the section 388 hearing, the child was thriving in a stable home and
was bonded to her caregivers, who wanted to adopt her. In contrast, the mother’s
circumstances remained unstable. We thus concluded “[t]here was no telling whether her
latest efforts at sobriety would be lasting. Mother thus failed to establish that N.F.’s ‘best
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interests in permanency and stability would be furthered by’ derailing the child’s
adoption.” (N.F., supra, 68 Cal.App.5th at p. 122, quoting In re J.C., supra, 226
Cal.App.4th at p. 526.)
Here, unlike in N.F., supra, 68 Cal.App.5th 112, the juvenile court reasonably
found that Mother had made significant progress resolving the problems that led to the
juvenile dependency proceedings, including substance abuse. There was evidence that
when the dependency petition was filed, Father had adverse influence and control over
Mother. They were in an abusive relationship, leading to Mother’s substance abuse and
the removal of A.P. While living with Father, Mother failed to cooperate with DPSS in
reunifying with A.P. Unlike in N.F., Mother succeeded in separating from Father,
finding suitable housing, and completing her case plan, including a substance abuse plan.
Although there was evidence Mother had tested positive for marijuana three times
within a few months of the section 388 hearing, unlike in N.F., there was no evidence she
was abusing any illegal controlled substances, and there was no evidence her use of
marijuana adversely affected her ability to care for her two younger children who were
living with her. Her therapist and DPSS both reported that Mother had made great
progress toward rehabilitating and DPSS recommended granting her section 388 petition
requesting additional reunification services, with reunification with A.P. likely.
Also, unlike in N.F., supra, 68 Cal.App.5th 112, in this case, there had not been
any previous instances in which A.P. was returned to Mother’s care after removal, and
then removed a second time because of substance abuse. In addition, in the instant case,
33
when the section 388 petition was granted, the juvenile dependency proceedings had been
pending for about two and a half years (from January 28, 2020, until July 7, 2022). In
N.F., the court denied the mother’s section 388 petition about four years after the initial
dependency petition was filed.
Also, in this case, unlike in N.F., supra, 68 Cal.App.5th 112, the juvenile court
granted, rather than denied the section 388 petition, and did so consistent with DPSS’s
recommendation. Based on “the entire factual and procedural history of the case,” we
conclude there was sufficient evidence showing changed circumstances and that granting
additional reunification services was in A.P.’s best interests. (In re Justice P., supra, 123
Cal.App.4th at p. 189.) The juvenile court’s decision to grant Mother’s section 388
petition and order additional reunification services rested within the court’s discretion,
and this court may not disturb that ruling because there has not been a clear abuse of
discretion. (In re J.C., supra, 226 Cal.App.4th at p. 525.)
We conclude the evidence supported reasonable findings that Mother had turned
her life around by separating from Father and completing her case plan. There was
evidence that Mother had overcome her substance abuse to the extent it might interfere
with her ability to supervise and protect A.P. The juvenile court reasonably concluded
that, based on the totality of the evidence, Mother had met her burden of demonstrating
materially changed circumstances and that the requested additional six months of
reunification services would promote A.P.’s best interests. It would allow Mother to
reunify with A.P., which was likely, and would enable A.P. grow up with her two
34
younger siblings. Because we do not find any abuse of discretion, we affirm the July 7,
2022, ruling granting Mother’s section 388 petition and ordering an additional six months
of reunification services for Mother.
V.
DISPOSITION
The July 7, 2022 order granting Mother’s section 388 petition for an additional six
months of reunification services is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.
35