Filed 9/2/20 In re H.W. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re H.W., a Person Coming Under
the Juvenile Court Law.
D076973
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. 519651)
Plaintiff and Respondent,
v.
B.W.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Marion F. Gaston, Judge. Affirmed.
Emily Uhre, under appointment by the Court of Appeal, for Defendant
and Appellant, B.W.
Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy
County Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for
Plaintiff and Respondent.
B.W. (Mother) appeals the juvenile court’s order denying her petition
for modification under Welfare and Institutions Code section 3881 seeking to
return her minor daughter, H.W., to her care. Mother contends her
circumstances had changed and returning H.W. to her care was in the child’s
best interests. We reject Mother’s challenge and affirm the juvenile court’s
order.
FACTUAL AND PROCEDURAL BACKGROUND
This case began in January 2018, when H.W. was just under three
months old. Early in the month, Mother and H.W.’s father, Robert G.
(Father),2 were at the pediatrician’s office when Mother began screaming,
banging on the walls and doors, yelling that Father hit her, and asking
strangers to help her get away. Before staff at the clinic could intervene,
Father was able to get Mother out of the office and bring the infant back for
her appointment. The incident resulted in a referral to the child abuse
hotline.
The following day, child protective services workers met with Father
and the paternal grandmother. Father denied any domestic violence in his
relationship with Mother, but reported that Mother had significant mental
health issues, including a diagnosis of schizophrenia. The paternal
grandmother reported that she had been the child’s primary caregiver and
that she was concerned about Mother’s ability to care for H.W. because of her
mental illness. The grandmother told the social worker that she did not
know if Mother was using drugs and that Mother was not receiving any
1 Subsequent undesignated statutory references are to the Welfare and
Institutions Code.
2 Father is not a party to the appeal and is discussed only where relevant
to the issues raised by Mother.
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psychiatric treatment. She also reported that Mother and Father did not
have a stable living situation, and primarily stayed with her and in hotels.
Father and paternal grandmother reported that they had not seen Mother
since she left the pediatrician’s office.
The following week, law enforcement contacted the San Diego County
Health and Human Services Agency (Agency) after a violent altercation
between Mother and Father in their car with H.W. in the back seat. The
police report for the incident indicated the couple were fighting while Father
was driving onto the freeway. Father punched Mother in the head multiple
times and threatened her life before Mother jumped from the moving vehicle
while it was on the on-ramp. After the police arrived, Father was arrested,
Mother was taken to the hospital to treat her injuries, and H.W. was taken to
the paternal grandmother’s home.
During its investigation, the Agency discovered that both parents had
extensive criminal records and that Mother had a history of drug abuse.
Mother told the Agency’s social workers that she had a diagnosis of
schizophrenia but was not able to take medication because she was pregnant.
Mother also reported she had used methamphetamine after H.W. was born.
As a result of its investigation, on January 17, 2018, the Agency filed a
petition on behalf of H.W. under section 300, subdivision (b)(1) alleging that
H.W. was at risk of serious physical harm or illness as a result of the violent
altercation that occurred between her parents in their car.
The detention hearing was held the day after the petition was filed.
Mother and Father were both present and the court ordered counsel
appointed for each, ordered H.W. detained in the home of an approved foster
family or relative, and set the jurisdiction and disposition hearing for
February 8, 2018.
3
Before the next hearing, H.W. was placed with a foster family and
Mother agreed to participate in a domestic violence perpetrators group,
medication management counseling, drug testing, and therapy. The Agency
recommended that the court declare H.W. a dependent of the juvenile court
and that custody be removed from her parents. At the jurisdiction and
disposition hearing, both parents set the matter for trial, which was later
scheduled for April 24, 2018. In its report for the trial, the Agency indicated
the paternal grandmother was being evaluated for placement of H.W. and
continued its recommendation for the court to take jurisdiction over H.W. and
remove custody from her parents.
At the April 24, 2018 contested hearing, the court sustained the
petition, finding the allegation true by clear and convincing evidence,
removed H.W. from the parents’ custody, and ordered the parents to comply
with the Agency’s case plan for reunification. The court also set the six-
month review hearing. In June 2018, one of H.W.’s foster parents passed
away and she was moved to a new foster placement. That placement lasted
just a few days, and then H.W. was placed with her current foster family.
Initially during the review period, the parents were visiting with H.W.
under the supervision of the paternal grandmother. However, on July 4,
2018, while H.W. was at the paternal grandmother’s home visiting the
paternal grandmother and other family members, both parents showed up
unexpectedly. The parents and paternal grandmother engaged in a physical
altercation in which Mother slapped Father, Father pushed Mother, and the
paternal grandmother choked Mother, all in H.W.’s presence. As a result of
the altercation, the paternal grandmother was prohibited from supervising
further visits and her efforts to gain placement of H.W. were set back.
4
Throughout the six-month review period, Mother was inconsistent both
in her visitation with H.W. and her participation in reunification services.
After the paternal grandmother’s visitation supervision ended and visits were
scheduled at the Family Visitation Center, Mother’s visitation was
terminated because she missed three consecutive visits. The visitation was
reinstated, but Mother continued to miss visits. Visit supervisors reported
the visits that did occur were positive and H.W. was bonded to Mother.
H.W.’s foster mother reported that when H.W. first came to her home “she
would scream every 20-30 minutes after [they] put her to bed [and] wake up
in a cold sweat shaking[, and] would stiffen her body when rocked or
cuddled.” The episodes decreased over time.
In addition to her inconsistent visitation, the family’s social worker
reported that Mother was not regularly attending therapy or taking
medication prescribed for her mental health diagnosis. Mother told the social
worker that she wanted to participate in a more intensive drug treatment
program and in October she tested positive for methamphetamine, cocaine,
and marijuana. Despite her lack of progress, for the six-month review
hearing, the Agency recommended that Mother receive another six months of
reunification services.
At the initial review hearing on October 22, 2018, H.W.’s counsel
disagreed with the Agency’s recommendation to continue reunification
services and requested a trial on the issue of termination of services as a
result of the parents’ lack of progress in their reunification efforts. After
several continuances, the court set a trial that coincided with the next review
period. In its report in January 2019 for the trial settlement conference, the
Agency reported that Mother continued to struggle in her reunification
efforts. She did not visit H.W. or participate in services regularly. Mother’s
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parenting class facilitator reported concern that Mother had come to class
under the influence of drugs. Mother also lashed out at the facilitator when
she informed Mother that she had not yet completed the program. Mother
visited H.W. only once and for only a few minutes because she was almost an
hour late to the scheduled visit. Despite Mother’s lack of progress, the
Agency continued to recommend additional reunifications services.
Before the contested review hearing, then set for April 2019, the
Agency filed an addendum report indicating that Mother had been arrested
in January for car theft, and had been released from jail in late March to an
in-patient treatment facility. Mother had not seen H.W. since January 2,
2019. When she was interviewed by the Agency’s social worker on April 9,
2019 about her arrest, Mother said that “everyone was treating me like shit,
so I started using drugs and was living on the streets. I stole a car so that
the police could pick me up.” Mother reported that since her incarceration,
she had been on medication for her schizophrenia consistently and felt good.
As a result of Mother’s incarceration and failure to participate in
reunification services, the Agency changed its position and recommended
that reunification services be terminated and that the court set a permanency
planning hearing for H.W. under section 366.26.
In its April 23, 2019 report in advance of the continued six-month
review hearing and for the 12-month review hearing, the Agency stated that
Mother was continuing her in-patient treatment and had two positive visits
with H.W. H.W. was doing well in her foster placement and was bonded to
her caregivers. The Agency stated it would be detrimental to return H.W. to
Mother’s care because of Mother’s lack of effort to participate in reunification
services and inconsistent visitation with H.W. in the year leading up to her
incarceration. The Agency noted that H.W., then a year and a half old,
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needed stability and should not be placed in an environment where she could
be exposed to more domestic violence and turmoil.
The review hearing was again continued, to June 7, 2019. Because of
the delay, the contested 6-month and 12-month review hearings were
combined to that date. In its final report before the hearing, the Agency
stated that Mother continued to do well with her recovery program and had
not had a positive drug test since she was released from jail. Mother had also
resumed regular visitation with H.W. The visits were going well, although
H.W. was somewhat resistant to engage with Mother. The Agency’s report
applauded Mother’s recent efforts to improve her life, but the Agency
continued to recommend the termination of reunification services because
Mother’s progress was so recent. The Agency noted that Mother had not
“demonstrate[d] the ability to stabilize her mental health long enough to be
certain that [she] has the ability to safely care for” H.W.
At the combined review hearing on June 7, 2019, Mother sought
placement of H.W. or in the alternative additional reunification services and
increased visitation. At the hearing, the court received the Agency’s reports
into evidence. Mother introduced a certificate of completion for a parenting
program and other documentation concerning her progress. She also read a
letter she wrote to the court expressing remorse for her prior behavior, the
steps she had taken to get her life on track, and explaining that she was
dedicated to her recovery and to being a stable parent for H.W. Counsel for
the Agency and H.W. praised Mother’s new-found success, but asserted that
termination of reunification services remained appropriate in light of the
length of time that had passed since the proceeding was initiated. Agency
counsel noted that the end of the 18-month review period was approaching on
July 18, 2019, and that in order to continue services to that date, Mother
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would need to show a probability that H.W. could be safely returned to her
care, a burden Mother could not meet.
At the conclusion of argument, the juvenile court commended Mother
for her sobriety and new commitment to H.W. The court found, however,
that Mother had not made sufficient progress towards mitigating the causes
of H.W.’s removal from her care to warrant continued services and that it was
unlikely she could regain custody of H.W. by the end of 18-month review
period. The court noted that had Mother’s recent progress occurred earlier in
the proceeding, its findings would be different. The juvenile court stated its
additional finding that Mother had not been consistent in her visitation with
H.W. and that the Agency had offered reasonable services to the parents.
The court then terminated reunification services and scheduled a
permanency planning hearing under section 366.26.3
In the subsequent months, Mother continued to progress with her
treatment and remained committed to her sobriety. She obtained placement
in another highly structured residential treatment program and visited H.W.
several times. However, a missed scheduled visitation resulted in the
termination of her referral for the visitation center, and Mother’s subsequent
visits took place during the paternal grandmother’s scheduled visitation. The
visits Mother did have with H.W. were positive.
In the report for the permanency planning hearing, the Agency’s social
worker opined that H.W. was both generally and specifically adoptable, as
her foster parents were committed to adoption. H.W. was almost two years
old at the time of the report and was thriving in her placement. H.W.’s foster
3 Mother and Father each filed a notice of intent to appeal seeking to
challenge the juvenile court’s findings and orders. This court dismissed the
case after counsel for the parents indicated there were no viable issues for
review.
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parents also expressed their intention to facilitate a relationship with Mother
and other biological relatives if the interactions were positive.
For the permanency planning hearing, the Agency recommended the
termination of parental rights in order to free H.W. for adoption. The
Agency’s social worker opined that adoption was the most appropriate
permanent plan for H.W. and that the benefits of adoption outweighed the
benefits of H.W.’s relationship with either parent. The reporting social
worker also opined that neither parent had a parental relationship with H.W.
After the Agency’s report was submitted and before the hearing, on
September 27, 2019, Mother filed a petition for modification under section
388 seeking to set aside the court’s prior order terminating reunification
services and setting the permanency planning hearing. As changed
circumstances, Mother pointed to her completion of the treatment program at
her first residential placement after being released from jail, her recent
transition to sober living housing (where H.W. could also live) with continued
supported services, and her eight months of sobriety and stability in the
treatment of her mental health diagnosis. Mother asked the court to place
H.W. with her with family maintenance services. Attached to the mother’s
petition was verification of her participation in the various programs.4
The matter came before the court for a section 366.26 hearing on
October 2, 2019. In addition to pursuing her modification petition, Mother
also objected to the Agency’s recommendation to terminate her parental
rights and requested a trial on that issue. The juvenile court found Mother
had made a prima facie showing under section 388 and was entitled to a
4 Around the same time, the paternal grandmother, who had not yet
been approved as a relative caregiver for H.W., also filed a section 388
seeking placement of H.W. under section 361.3. Her petition was considered
at the same time as Mother’s section 388 petition.
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hearing on her petition, which should precede the section 366.26
determination. The court scheduled the case for a hearing on Mother’s
petition for December 3-4, 2019.
In its report for the contested hearing, the Agency noted that Mother
had continued working with her service providers and on her sobriety. She
also continued her visitation with H.W., which was positive. H.W. recognized
Mother and was playful and called her “mama.” The reporting social worker
noted that Mother and H.W.’s extended family members loved her, and that
although they were well-meaning, they suffered from “significant
generational trauma including loss, domestic violence, mental illness, and
substance use, which has impeded the adults in [H.W.’s] family to be able to
care for her.” The social worker stated that although Mother had made
significant progress over the recent months, given the severity of her mental
health and substance abuse history, there had not been an adequate time of
stability in her life to support a finding of changed circumstances. The social
worker recommended denial of the petition so that H.W. could have the
security that adoption would afford her.
At the hearing on Mother’s modification petition, the court accepted the
Agency’s reports into evidence, as well as documentation introduced by
Mother concerning the services and treatment she received after her release
from jail. Mother’s therapist testified about her background and efforts at
recovery throughout the proceeding. Mother also testified about her long
history of substance abuse beginning when she was 16, and about her recent
recovery. Finally, the Agency’s social worker who prepared the reports for
the final review hearing and in response to Mother’s petition testified. The
social worker opined that it would not be in H.W.’s best interest to remove
her from her current caregivers and place her with Mother.
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After the conclusion of evidence and argument by counsel, the juvenile
court denied Mother’s petition for modification. The court emphasized the
fact that a full year had passed after the proceeding was initiated before
Mother made any progress in her reunification efforts. The court stated that
Mother’s success was to be celebrated, but that her recent progress could not
overcome the fact that H.W. was over two years old and had been out of the
care of Mother since her second month of life. The court found that Mother’s
nine months of stability was praiseworthy, but not sufficient evidence of
changed circumstances. Finally, the court found that even if there were
changed circumstances, Mother had not shown that reversing its prior order
terminating Mother’s services was in H.W.’s best interests.5
Mother timely appealed from the denial of her petition for modification.
DISCUSSION
Mother’s appeal is, in essence, a request for this court to reassess the
evidence before the juvenile court. Mother argues the record shows that in
the three months between the termination of her reunification services and
the hearing on her petition for modification her circumstances had changed.
She also asserts the factors the juvenile court must examine to determine if a
proposed modification is in the minor’s best interests weighed heavily in her
favor. While we are sympathetic to Mother’s desire for another chance at
reunification, the limits of our review require affirmance in this case.
5 After denying Mother’s petition, at the request of the paternal
grandmother’s counsel, the court continued the hearing on the paternal
grandmother’s petition for modification. The court also continued the
permanency planning hearing and set both for January 3, 2020.
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I
Under section 388, a party may petition the court to change, modify or
set aside a previous court order. The petitioning party has the burden of
showing, by a preponderance of the evidence, there is a change of
circumstances or new evidence, and the proposed change is in the child’s best
interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) Whether a
previous court order should be modified and a change would be in the child’s
best interests are questions within the sound discretion of the juvenile court.
(In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Casey D. (1999) 70
Cal.App.4th 38, 47.) The order will not be disturbed on appeal unless the
court has exceeded the limits of legal discretion by making an arbitrary,
capricious, or patently absurd determination. When two or more inferences
reasonably can be deduced from the facts, we have no authority to reweigh
the evidence or substitute our decision for that of the juvenile court. (In re
Stephanie M., at pp. 318-319.) In ruling on a modification petition, the court
may consider the entire factual and procedural history of the case. (In re
Justice P. (2004) 123 Cal.App.4th 181, 189.)
II
With respect to the changed circumstance prong, the juvenile court’s
finding that Mother’s “recent sobriety reflects ‘changing,’ not changed,
circumstances” was supported by the evidence. (In re Ernesto R. (2014) 230
Cal.App.4th 219, 223.) Mother’s recent dedication to her sobriety and mental
health stability are to be applauded, but at the time of the hearing on her
petition for modification, she was in a relatively early stage of her recovery.
(See, e.g., In re Kimberly F. (1997) 56 Cal.App.4th 519, 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 Cliffton B. (2000) 81 Cal.App.4th 415,
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423-424 [200 days of sobriety not enough].) At that time, Mother was less
than nine months from her release from jail, and the evidence showed she
was still addressing significant mental illness and a long-standing substance
abuse problem. Of particular note, and as the Agency points out in its brief,
Mother had no track record of living on her own without significant
intervention and support by her service providers. Mother’s “completion of a
drug treatment program, at this late a date, though commendable, is not a
substantial change of circumstances.” (In re Ernesto R., supra, 230
Cal.App.4th at p. 223.)
Even if there were a change in circumstances, however, Mother has not
established the juvenile court erred by finding that reinstating reunification
services was not in H.W.’s best interests. “The factors to be considered in
evaluating the child’s best interests under section 388 are: (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.” (In re 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 evidence before the juvenile court supported its findings under
these factors. First, the problems that led to this dependency were severe,
including dangerous domestic violence in the presence of H.W. when she was
an infant, and Mother’s significant substance abuse and untreated mental
illness. Second, H.W. was bonded to her caregivers and thriving in their
home. While she shared a positive relationship with Mother, there was no
evidence that H.W. would experience any detriment if not placed in Mother’s
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care. Rather, the social worker opined that Mother had not formed a
parental relationship with H.W. and that H.W. was forming such a
relationship with her foster parents, who were committed to adoption.
Finally, while Mother had made significant progress in ameliorating
her mental health and substance abuse issues, and had engaged in domestic
violence services, these efforts did not begin until over a year after H.W. was
removed from her care. The juvenile court’s conclusion that Mother’s
progress was too late, and that continued delay of stabilizing H.W.’s life was
not in her best interest, was well within the bounds of its discretion.
Critically, after the termination of reunification services, “the parents’
interest in the care, custody and companionship of the child are no longer
paramount. Rather, at this point ‘the focus shifts to the needs of the child for
permanency and stability’ [citation], and in fact, there is a rebuttable
presumption that continued foster care is in the best interest of the child.”
(In re Stephanie M., supra, 7 Cal.4th at p. 317.) Where, as here, “ ‘custody
continues over a significant period, the child’s need for continuity and
stability assumes an increasingly important role. That need will often dictate
the conclusion that maintenance of the current arrangement would be in the
best interests of that child.’ ” (Ibid.) Sadly, “[c]hildhood does not wait for the
parent to become adequate.” (In re Marilyn H. (1993) 5 Cal.4th 295, 310.)
The record shows that here, “the juvenile court properly evaluated the
evidence, and placing special weight on the child’s need for stability, as was
appropriate at that stage of the proceedings, determined that [Mother] had
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not carried [her] burden of proof.”6 (In re Stephanie M., supra, 7 Cal.4th at
p. 319.) This determination was not an abuse of discretion.
DISPOSITION
The order is affirmed.
BENKE, Acting P. J.
WE CONCUR:
HALLER, J.
O’ROURKE, J.
6 This case is distinguishable from the recently published case of In re
J.M. (2020) 50 Cal.App.5th 833, which reversed the denial of the parent’s
petition for modification seeking reinstatement of reunification services. In
J.M., the single basis for the dependency was domestic violence between the
minor’s parents. The evidence before the juvenile court showed the mother
had entirely ameliorated that issue because she had “not been in contact with
Father for over a year, had completed all required domestic violence training,
and nothing suggested Mother was or had been in another potentially violent
or abusive relationship.” (Id. at p. 846) Among other issues identified by the
juvenile court that were not substantiated by the record evidence, the
juvenile court’s best interest analysis improperly focused on an area of
concern that was not related to the original grounds for removal—the
mother’s lack of special training in dealing with her son’s special needs. (Id.
at p. 849.) In reversing the juvenile court order, the Court of Appeal also
noted that the mother had addressed “the myriad of other concerns—
completely unrelated to any risk of domestic violence—that the [juvenile]
court raised in terminating her reunification services.” (Id. at p. 846.)
Unlike the parent in J.M., Mother’s challenge to the earlier termination of
her parental rights was dismissed, and there are no flaws in the juvenile
court’s best interest analysis akin to those found in J.M.
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