In re M.M. CA2/8 ( 2023 )

Filed 6/14/23 In re M.M. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 EIGHT
In re M.M., a Person Coming B318980
Under the Juvenile Court Law.
________________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 18CCJP06955-B)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
Valeria M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Debra R. Archuleta, Judge. Affirmed.
Janette Freeman Cochran, under appointment by the Court
of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Kelly G. Emling, Deputy County
Counsel, for Plaintiff and Respondent.
_________________________
Mother appeals the juvenile court’s summary denial of her
March 2022 Welfare and Institutions Code section 3881 petition
concerning her daughter, M.M. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
I. Assumption of Jurisdiction
M.M. came to the attention of the Department of Children
and Family Services (DCFS) at birth in September 2020 because
Mother had failed to reunify with her older child in a pending
dependency matter. When DCFS met with Mother in the
hospital, Mother said she had skipped drug tests and avoided the
social worker in her older child’s case because she had been using
methamphetamine and marijuana. She said she had been sober
for several months, and the last time she used drugs was April
16, 2020, the day she found out she was pregnant with M.M. She
had attended Narcotics Anonymous meetings before she was
incarcerated over the summer, and she had enrolled in outpatient
drug treatment after her release. She was motivated to keep
M.M. in her care and willing to participate in services.
On September 24, 2020, Mother entered a residential
substance abuse treatment program at the Los Angeles Centers
for Alcohol and Drug Abuse (LACADA). She also participated in
a Child and Family Team Meeting. During the meeting, Mother
expressed a desire to keep M.M. in her care and reunify with her
older child. DCFS had substantial concerns about Mother
because she had not cooperated with DCFS, complied with court
orders, appeared for drug testing, or completed required
1 Undesignated statutory references are to the Welfare and
Institutions Code.
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programs in the case involving her older child, but based on
Mother’s representation that she had been drug-free since April
2020 and her enrollment in a residential program, DCFS allowed
M.M. to remain in Mother’s care.
DCFS soon learned Mother had lied: she had tested
positive for methamphetamines the day before she met with
DCFS and enrolled in the treatment program. M.M. was
removed from Mother’s custody on October 14, 2020, and placed
with her aunt. DCFS filed a petition alleging M.M. was subject
to the jurisdiction of the juvenile court under section 300,
subdivisions (a) (physical abuse), (b)(1) (failure to protect), and (j)
(abuse of sibling).
Mother remained in her treatment program with LACADA
until late December 2020. She had been due to leave the in-
patient program and to commence outpatient treatment, but she
was administratively discharged from the program after she
engaged in aggressive behavior and inappropriate comments
toward staff. Mother’s drug tests while in the program had been
negative. Her progress in treatment was described as “average
except her ability to manage aggressive behavior towards staff
and peers,” where she had made no progress.
Mother’s DCFS drug test on December 8, 2020, was
negative. She failed to appear for testing on December 22, 2020.
On January 5, 2021, Mother pleaded no contest to the
allegation under section 300, subdivision (b)(1), that her
substance abuse rendered her unable to provide regular care to
M.M. and subjected M.M. to a risk of serious physical harm or
damage. The court found the count true, dismissed the
remaining allegations, and declared M.M. a dependent child of
the juvenile court.
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Mother was ordered to undergo a minimum six-month full
drug program with aftercare, random or on-demand weekly drug
testing, and a 12-step program. She was ordered to take a
developmentally appropriate parenting class and to participate in
individual counseling to address her self-esteem, past trauma,
coping skills, and anger management. Mother was granted three
hours of monitored visitation, three times per week.
II. Reunification Services Period
Mother failed to appear for court-ordered drug testing on
January 7 and January 20, 2021. On January 20, Mother
reported to DCFS that she was not calling in to find out if she
was scheduled to test; she was afraid of being exposed to COVID-
19 at the testing location. The social worker urged Mother to call
in and not to miss further tests.
Mother told DCFS in January 2021 that she had completed
14 sessions of parenting classes while in the LACADA in-patient
program, and she provided the certificate of completion. Mother
said she participated in 12-step meetings while in the LACADA
inpatient program, but she provided no documentation of her
attendance. She was attending individual counseling, had an
appointment to enroll in LACADA’s outpatient program, and was
working on obtaining a sponsor.
Mother missed her next court-ordered drug test on
February 4, 2021. On February 5, 2021, Mother told DCFS she
was attending substance abuse counseling, with drug testing, at
LACADA. She claimed not to realize she had to test with DCFS
since she was testing for LACADA, and the social worker told her
she had to do the court-ordered tests as well. Mother reported
meeting with her counselor every week and seeing a therapist at
Jovenes, Inc.
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Through LACADA, Mother tested positive for
amphetamines and marijuana on February 11, 2021, and her
specimen given on February 26, 2021 was diluted. She failed to
appear for a court-ordered drug test on March 5, 2021, but tested
negative through LACADA that day. Mother’s specimen was
again diluted at her LACADA drug test on March 12, 2021.
On March 19, 2021, Mother met with the social worker and
said her focus was to gain custody of her two children. She
denied any urge to use drugs. Mother said she was not
submitting to court-ordered drug testing because it was “too
much” given her weekly LACADA tests. Once again, the social
worker instructed Mother to call in to find out if she was called to
test. That same day, Mother failed to appear for her court-
ordered drug test and tested positive for marijuana on her
LACADA drug test.
Mother tested positive for amphetamines and/or marijuana
on LACADA drug tests on March 26 and April 9, 2021. At her
April 20, 2021 LACADA counseling session, Mother said she
believed a higher level of care would benefit her because she was
relapsing, but after the counselor gave her referrals and
information she never heard from Mother again. Mother did not
participate further in the LACADA program.
On April 22, 2021, Mother did not appear for her drug test,
and she failed to respond to messages and calls from the social
worker on April 27, 2021.
Mother had consistently visited M.M. and was reported to
be attentive and largely appropriate during visits. However, on
May 3, 2021, Mother appeared at the maternal aunt’s house
when no visit was scheduled and demanded to see the children.
Mother pulled out a window screen trying to gain access to the
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home, leading the maternal aunt to call the police. The maternal
aunt suspected Mother might be using drugs again, as she only
behaved in that manner when she was using drugs.
Mother did not appear for her court-ordered drug test on
May 5, 2021. On May 10, she texted the social worker asking for
an in-person meeting. They agreed to meet on May 18, 2021.
Mother did not answer calls from the social worker, she did not
respond to a text confirming the meeting, she did not appear for
the meeting, and she did not respond to the social worker’s text
after she failed to appear. The social worker attempted to meet
with Mother at her home, but she was unable to enter the gated
building and her telephone call to Mother went to voice mail.
Mother was also a no-show for her court-ordered drug testing on
May 21 and June 8, 2021.
Mother met with DCFS on June 15, 2021. The social
worker asked where Mother had been and why she could not be
reached for three months. Mother said personal issues she did
not wish to discuss had caused her to discontinue contact with
DCFS, leave her treatment program, and stop drug testing.
Mother said she was still living in the same place, but she gave
the social worker a different address than she had previously
provided.
Mother reported she had been clean for 14 days and that
she needed to enroll in an in-patient drug and alcohol treatment
program to maintain her sobriety. She planned to enroll in the
LACADA program again. Mother said her goal was to reunify
with her children and she was willing to maintain her sobriety.
Mother missed her court-ordered drug test on June 23,
June 30, July 7, July 12, and July 20, 2021. In July 2021, Mother
told DCFS she had not drug tested because she had been “a little
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sick.” Mother said she had enrolled in an outpatient treatment
program at Liberty Community Plaza Counseling. She said she
was “still working on” getting a counselor there, and she had
been in communication with “Maria.” Liberty Community Plaza
Counseling was unable to confirm or deny whether Mother was a
client unless Mother signed a consent form; however, they did not
have a counselor named Maria.
The court held a review hearing pursuant to section 366.21,
subdivision (e) on August 10, 2021. Mother produced a July 8,
2021 letter from United Friends of the Children stating that she
had been “meeting her program requirements at Pathways,”
attended virtual life skills sessions, and met with her counselor
weekly. The letter did not describe the program or give dates for
Mother’s enrollment and participation.
The court found Mother had not made substantial progress
toward alleviating the causes necessitating M.M.’s out-of-home
placement. The court terminated reunification services and set a
permanency planning hearing for December 7, 2021.
III. First Section 388 Petition
In December 2021, Mother filed a section 388 petition
asking that M.M. be released to her, or, in the alternative, that
the court order additional reunification services. As the changed
circumstances, Mother asserted that she had been enrolled in the
Jovenes program since November 16, 2021. She had taken
courses addressing “individual therapy, substance use, treatment
goals and age appropriate parenting strategies.” Mother claimed
she had been consistent in her classes, continued to be sober, and
continued to “amend her past transgressions.” According to
Mother, a change in order would be in M.M.’s best interest
because she had “complied with the court[’]s ruling and is
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enrolled in a program that supports her to have housing support”;
she visited every week; Mother had “maintained her love for her
child and they share a bond pre-existing any court intervention”;
and it would support M.M.’s interest in permanency, stability,
and family ties.
Mother supported her application with two letters. One
was the letter from United Friends of the Children she had
previously submitted to the court for the section 366.21,
subdivision (e) review hearing. The other was a November 16,
2021 letter on Jovenes letterhead from her therapist. Contrary to
Mother’s assertion in her petition that she had enrolled in the
Jovenes program on November 16, 2021, this letter (dated
November 16, 2021) stated she had participated in the Youth
Family Reconnection program from February 2020 to September
2021. Through this program, which sought to reduce
homelessness among transition-age youth, Mother received
weekly individual therapy and case management supportive
services.
The court denied the section 388 petition without a hearing
because the petition did not state new evidence or a change of
circumstances, and the proposed change did not promote M.M.’s
best interest.
IV. Second Section 388 Petition
Mother filed a second section 388 petition on March 2,
2022. She again sought a home of parent order, or, in the
alternative, the reinstatement of reunification services. The
alleged changed circumstances were identical to the changed
circumstances cited in the first section 388 petition, except that
now Mother specified a different program––the Angel Step Too
residential program. As before, Mother contended the change of
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order would be in M.M.’s best interest because she had complied
with the court’s ruling, she loved her children, their visits
demonstrated their deep bond that formed before court
intervention, and granting the petition would support M.M.’s
interest in permanency, stability, and family ties.
Mother attached DCFS’s February 7, 2022 Last Minute
Information report as support for her petition. This report stated
Mother enrolled in the Angel Step Too residential program on
November 4, 2021, but left the program for unknown reasons on
January 21, 2022. Mother had not advised DCFS when she left
the program, nor had she informed DCFS where she was now
living. Mother’s location was unknown.
The court summarily denied the petition on March 4, 2022,
on the grounds that it did not state new evidence or a change in
circumstances, and the proposed change of order would not
promote M.M.’s best interest.
The court placed M.M. in a legal guardianship with the
maternal aunt. Mother appeals.
DISCUSSION
I. Applicable Law and Standard of Review
Section 388 is a general provision permitting the court,
“upon grounds of change of circumstance or new evidence . . . to
change, modify, or set aside any order of court previously made or
to terminate the jurisdiction of the court.” (§ 388, subd. (a)(1).)
The statute is an “escape mechanism” that allows the dependency
court to consider new information even after parental
reunification efforts have been terminated. (In re Jessica K.
(2000) 79 Cal.App.4th 1313, 1316.) It permits the modification of
a prior order only when the petitioner establishes by a
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preponderance of the evidence that (1) changed circumstances or
new evidence exists; and (2) the proposed change would promote
the best interests of the child. (In re Zachary G. (1999)
77 Cal.App.4th 799, 806 (Zachary G.).)
A petitioner must make a prima facie showing of changed
circumstances and best interests in order to obtain a hearing on a
section 388 petition. (In re Anthony W. (2001) 87 Cal.App.4th
246, 250 (Anthony W.); Cal. Rules of Court, rule 5.570(d).) While
the petition must be liberally construed in favor of its sufficiency,
the allegations must “describe specifically” how the petition will
advance the child’s best interests. (In re G.B. (2014)
227 Cal.App.4th 1147, 1157; Anthony W., at p. 250.) “The prima
facie requirement is not met unless the facts alleged, if supported
by evidence given credit at the hearing, would sustain a favorable
decision on the petition.” (Zachary G., supra, 77 Cal.App.4th at
p. 806.) In determining whether the petition makes the
necessary showing, the court may consider the entire factual and
procedural history of the case. (In re R.A. (2021) 61 Cal.App.5th
826, 837.) We review the summary denial of a section 388
petition for an abuse of discretion. (Anthony W., at p. 250.)
II. Analysis
In extremely conclusory briefing, Mother recites the
information in the petition and its supporting document, and
contends the court erred in denying her second section 388
petition because it “made a prima facie case of changed
circumstances and a showing that a hearing would promote the
best interests of the child.”
Mother alleged the following circumstances had changed
since her reunification services were terminated: (1) she had
enrolled in the Angel Step Too residential program; (2) she had
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taken courses addressing “individual therapy, substance use,
treatment goals and age appropriate parenting strategies”; (3)
she had been consistent in her classes; (4) she continued to stay
sober; (5) she continued to amend her past transgressions; (6) she
was determined to do what was needed to reunite with her
children and to raise them in a safe and stable home. Mother
added to her description of the alleged changed circumstances the
phrase, “(Last Minute Report 2/7/2022).” Mother did not
mention, although the Last Minute Report did, that she had
already left the Angel Step Too residential program at the time
she filed her section 388 petition, and her whereabouts were
unknown to DCFS.
“A parent establishes a substantial change of
circumstances for purposes of section 388 by showing that, during
the period between termination of reunification services and the
permanency planning hearing, he or she has resolved the
previously unresolved issues supporting juvenile court
jurisdiction.” (In re J.M. (2020) 50 Cal.App.5th 833, 846.)
Mother’s statements did not constitute a prima facie showing of a
material change in circumstances—it was, sadly, more of the
same. Over the course of the dependency matter, Mother had
started and then abandoned a number of programs, never
making demonstrable progress on the issues that had led to the
dependency proceedings. Her two and one-half months in yet
another treatment program, followed by another abrupt
departure, did not demonstrate that she had resolved the issues
underlying the juvenile court’s jurisdiction or that any change in
her circumstances was of such a significant nature that it would
require setting aside the order terminating reunification services.
(In re Mickel O. (2011) 197 Cal.App.4th 586, 615 [change of
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circumstances or new evidence must be of such significant nature
that it requires a setting aside or modification of the challenged
prior order].)
Nor did Mother’s remaining allegations establish a
material change in circumstances or the resolution of the issues
that led to the dependency. Mother had previously completed a
parenting class and she had repeatedly undergone stints of
individual therapy and substance abuse treatment. Her petition
belied her claim of consistency in her classes, as she had already
abandoned the Angel Step Too program at the time she filed her
section 388 petition; moreover, regular attendance in a class for a
few months falls far short of a resolution of case issues. Mother’s
claimed sobriety at the time of the petition was laudable, but she
previously had gone through periods of sobriety in treatment
before relapsing and quitting the programs; at best, this was a
changing, not a changed circumstance. Her vague allegation that
she had continued to “amend her past transgressions” lacks
sufficient detail to state a material change in circumstances. And
her determination to reunify with her children was not a changed
circumstance at all: Mother had expressed this desire from the
start of the dependency proceedings. None of these allegations
demonstrated a significant change of circumstances that would
require setting aside the court’s order or returning M.M. to her.
Because Mother did not make a prima facie showing of changed
circumstances, the court properly denied the petition without an
evidentiary hearing.
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DISPOSITION
The order summarily denying Mother’s section 388 petition
is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
GRIMES, J.
VIRAMONTES, J.
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