L. A. Cnty. Dep't of Children & Family Servs. v. Theresa P. (In re G. T.)

In re G. T., a Person Coming Under the Juvenile Court Law.

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. THERESA P., Defendant and Appellant.

B316544, B318898

California Court of Appeals, Second District, First Division

December 30, 2022

NOT TO BE PUBLISHED

APPEAL from orders of the Superior Court of Los Angeles County No 20LJJP00490, Stephanie M. Davis, Temporary Judge.

Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant.

Dawyn R. Harrison, Interim County Counsel, Kim Nemoy, Assistant County Counsel, and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.

BENDIX, J.

The Los Angeles County Department of Children and Family Services (DCFS or the agency) initiated juvenile dependency proceedings concerning G.T., who at that time was seven years old, based on his mother's substance abuse.^[1] The juvenile court sustained the dependency petition, removed G.T. from his mother, denied her family reunification services on account of mother's failure to reunify with G.T.'s two older siblings who had been removed from her custody because of her substance abuse, and scheduled a hearing to determine G.T.'s permanent placement.

Mother filed a petition pursuant to Welfare and Institutions Code^[2] section 388 to set aside the juvenile court's ruling denying her reunification services, arguing, inter alia, that after the court issued that order, mother had become sober and participated in substance abuse programs. The court held a hearing on the petition at which mother testified, and thereafter denied the petition, appointed G.T.'s maternal aunt as his legal guardian, permitted mother to have monitored visits with G.T., and terminated jurisdiction.

On appeal, mother contends the juvenile court erroneously inferred from her use of medication to manage withdrawal symptoms that she had failed to establish she was no longer abusing substances. We decline to resolve this issue. The order denying the petition indicates the court found that even if mother had established her recent sobriety, the circumstances had not changed sufficiently to show that delaying implementation of G.T.'s permanent plan (i.e legal guardianship by G.T.'s maternal aunt) by awarding mother reunification services was in G.T.'s best interest.

We conclude the juvenile court did not abuse its discretion in denying mother's section 388 petition given mother's 25-year history of substance abuse; her recent arrest in another state for possessing methamphetamine and marijuana while she was in a drug treatment program; the fact that G.T.'s request to be reunified with his mother stemmed from his apparent desire to act as her caretaker; and G.T.'s interest in permanence and stability in his new home with his maternal aunt and his older brother.

Finding no error, we affirm the order denying mother's section 388 petition. Additionally, we dismiss as abandoned mother's appeal of the orders denying her subsequent section 388 petitions.

PROCEDURAL BACKGROUND^[3]

We summarize only those aspects of the procedural history that are relevant to our disposition of the instant appeals.

On August 4, 2020, DCFS filed a juvenile dependency petition concerning G.T., who was seven years old at that time. In the petition, the agency asserted jurisdiction under section 300 subdivisions (b)(1) and (j).

In support of jurisdiction, the petition alleged the following: "[G.T.'s] mother . . . has a history of substance abuse and is a current abuser of cocaine, marijuana, opiates, benzodiazepines, oxycodone, hydrocodone, and Dilaudid, which renders the mother incapable of providing regular care of the child. On prior occasions, the mother was under the influence of cocaine, marijuana, opiates, benzodiazepines, oxycodone, hydrocodone, and Dilaudid, while the child was in the mother's care and supervision. On 06/27/2020, the mother had a positive toxicology screen for cocaine, marijuana, opiates, benzodiazepines, and oxycodone. On 07/02/2020, the mother had a positive toxicology screen for marijuana metabolites and hydrocodone. The child's [two older] siblings . . . are prior Dependents of the Juvenile Court and received Permanent Placement Services due to the mother's substance abuse. Such substance abuse by the mother endangers the child's physical health and safety and places the child at risk of serious physical harm[ and] damage ...."^[4] The juvenile court later detained G.T. from mother, and G.T. was placed with his maternal aunt. Maternal aunt is the legal guardian of one of the two older siblings identified in the dependency petition, to wit, an older brother of G.T. with whom mother failed to reunify in a prior dependency proceeding.

On October 20, 2020, the juvenile court sustained the dependency petition and scheduled a separate disposition hearing. At the November 23, 2020 disposition hearing, the court declared G.T. a dependent; removed him from mother's custody; denied mother family reunification services pursuant to section 361.5, subdivision (b)(10);^[5] and scheduled a section 366.26 hearing to devise a permanent plan for G.T.^[6]

On August 16, 2021, mother filed a section 388 petition requesting "[t]he child be returned to mother's care; or Family Reunification Services be reinstated; or mother's visits . . . be unmonitored and/or liberalized." In the petition, mother alleged the following changes had occurred since the November 23, 2020 disposition hearing: "Mother has been focusing on her sobriety. Mother has completed Parenting Classes, a Substance Use Disorder (SUD) at Penny Lane, as well as at Tarzana Treatment Center. Mother is consistently testing weekly, and participating in Group and individual counseling. Mother has regularly visited with her son, and she has stable housing." The court thereafter scheduled a hearing on the section 388 petition for October 22, 2021, and continued the section 366.26 hearing to that date as well.

On October 22, 2021, the juvenile court held a hearing on mother's section 388 petition at which mother testified. On October 29, 2021, the court denied the section 388 petition, appointed maternal aunt as G.T.'s legal guardian, authorized mother to have weekly monitored visitation, and terminated jurisdiction. Later that day, mother appealed the orders denying her section 388 petition, establishing a legal guardianship for G.T., and terminating jurisdiction.

On November 9, 2021, mother filed her second section 388 petition, wherein she requested that the juvenile court remove G.T. from maternal aunt's home or return him to mother's custody. On December 3, 2021, mother amended her section 388 petition to ask the court to reopen the case and provide her with additional time to reunify with G.T. On February 23, 2022, mother filed yet another section 388 petition, which sought an order returning G.T. to her custody, granting her family reunification services, or authorizing her to have unmonitored and overnight visits.

On February 23, 2022, the juvenile court denied the section 388 petition that mother had filed earlier that day. On February 28, 2022, the court denied mother's other pending section 388 petition. On March 1, 2022, mother filed a notice of appeal of the February 28, 2022 ruling. On March 7, 2022, mother amended the March 1, 2022 notice of appeal to indicate that she sought review of the rulings issued on February 23 and 28, 2022.

STANDARD OF REVIEW

"Section 388 provides for modification of juvenile court orders when the moving party presents new evidence or a change of circumstances and demonstrates modification of the previous order is in the child's best interests." (In re Samuel A. (2020) 55 Cal.App.5th 1, 6-7.) "Generally, the petitioner must show by a preponderance of the evidence that the child's welfare requires the modification sought." (In re A.A. (2012) 203 Cal.App.4th 597, 612 (A.A.).)" 'In determining whether the petition makes the necessary showing the court may consider the entire factual and procedural history of the case.' [Citation.]" (In re Mia M. (2022) 75 Cal.App.5th 792, 812.)

"Not every change in circumstance can justify modification of a prior order. [Citation.] The change in circumstances must relate to the purpose of the order and be such that the modification of the prior order is appropriate." (A.A., supra, 203 Cal.App.4th at p. 612.) "[A] section 388 petition seeking reinstatement of reunification services or return of the child will necessarily involve a parent who has made mistakes sufficient to support termination of services at some point in the past. The question must be whether the changes the parent made since then are substantial enough to overshadow that prior determination, such that reunification is now in the child's best interests." (In re J.M. (2020) 50 Cal.App.5th 833, 848 (J.M.).)" 'A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent . . . might be able to reunify at some future point[ ] does not promote stability for the child or the child's best interests. [Citation.]" '[C]hildhood does not wait for the parent to become adequate.'"' [Citation.]" (In re Mary G. (2007) 151 Cal.App.4th 184, 206 (Mary G.).)

"The [section 388] petition is addressed to the sound discretion of the juvenile court, and its decision will not be overturned on appeal in the absence of a clear abuse of discretion." (A.A., supra, 203 Cal.App.4th at p. 612.) Under that standard, "[t]he appellate court' "will not disturb [a] decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]."' [Citation...