Filed 7/24/14 In re A.T. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     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.T., a Person Coming Under the
Juvenile Court Law.

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,                                            E060523

         Plaintiff and Respondent,                                       (Super.Ct.No. J242715)

v.                                                                       OPINION

M.T.,

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Lily L. Sinfield,

Judge. Affirmed.

         Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Jean-Rene Basle, County Counsel, and Jamila Bayati, Deputy County Counsel, for

Plaintiff and Respondent.




                                                             1
       Appellant M.T. (mother) appeals the denial of her Welfare and Institutions Code1

section 388 petition, which requested reinstatement of reunification services with respect

to her minor son A.T., the subject of this dependency proceeding. (§ 388, subd. (a)(1).)

After denying the section 388 petition, the juvenile court proceeded to adjudicate section

366.26 issues, finding A.T. adoptable and there to be no applicable exception to adoption,

and terminating parental rights. On appeal, mother’s sole contention is that the juvenile

court abused its discretion by denying her section 388 petition because she demonstrated

changed circumstances and the requested modification was in the best interests of the

minor. We find no abuse of discretion, and affirm.

                   I. FACTS AND PROCEDURAL BACKGROUND

       On January 17, 2012, mother was arrested on suspicion of carjacking, felon in

possession of a gun, and child endangerment. She was accused of interfering with the

repossession of her vehicle by standing in front of the tow truck, which had already

hooked up her vehicle and was in the process of driving away, and brandishing a

handgun. According to a witness, during the incident, mother placed A.T.—then two

years old—on the hood of the truck. When police arrived, mother was still standing in

front of the truck, with the firearm tucked in her waistband at her back, under her shirt,

and A.T. in her arms.




       1 All further statutory references will be to the Welfare and Institutions Code
unless otherwise noted.


                                             2
       This incident was hardly mother’s first contact with law enforcement; she has a

lengthy criminal history dating back to 1999 charges of willful cruelty to a child. Later

convictions include vehicle theft, forgery, false representation, drug offenses, burglary,

receiving stolen property, and domestic battery. On January 11, 2012, less than a week

before the carjacking incident described above, mother had been arrested on felony

burglary and forgery charges.

       Mother has a long history of substance abuse and mental illness. Although she has

had periods of sobriety, she admitted to relapsing in September 2011, and having used

methamphetamine as recently as a week prior to her arrest in January 2012. She is

trained as an electrician, but since September 2011 she has been on disability, because

her employer required her to obtain “mental clearance” in order to continue to work, and

her psychiatrist would not clear her. She reported that she has been diagnosed with

attention deficit hyperactivity disorder, posttraumatic stress disorder, intermittent

explosive disorder, and bipolar disorder.

       Although A.T. was initially placed with alternative caregivers by law enforcement,

those arrangements were unstable, and San Bernardino County Children And Family

Services (CFS) became involved. On January 31, 2012, A.T. was placed in foster care,

pending assessment of potential placements with relatives or nonrelatives familiar with

him. The dependency petition alleged failure to protect, based on the incident on

January 17, 2012, as well as the history of substance abuse and domestic violence of both




                                              3
mother and A.T.’s alleged father, R.H (father). 2 The petition further alleged no

provision for support, based on mother’s incarceration, and the circumstance that father’s

whereabouts were unknown at the time. Father was later located living out of state.

       A.T. had previously been taken into CFS protective custody on November 16,

2009, a few weeks after his birth, when both mother and father were incarcerated for

domestic violence. Mother successfully reunified with A.T. in that case, though father

did not do so, and the child was returned to her custody and the matter dismissed on

March 1, 2011. Additionally, in 1999, CFS initiated a dependency with respect to A.T.’s

older half siblings, based on substantiated allegations of general neglect, including failing

to seek medical attention for her children in a timely manner, leaving the children with no

information regarding her whereabouts, and problems with substance abuse interfering

with her parenting. In that case, the children were returned to the care of their father, but

mother did not successfully complete reunification services.

       An amended dependency petition, dated February 23, 2012, modified the

allegations of the initial petition to reflect that father’s whereabouts were no longer

unknown, and to include the information he had previously failed to reunify with A.T. in

an earlier dependency case, he had not seen A.T. since October 2010, and he had only

limited telephone contact with him since. On March 15, 2012, the court found the

allegations in the amended petition true as written, removed A.T. from parental custody,



       2 Mother and father married in March 2009, but separated in October 2009,
several weeks before A.T.’s birth.

                                              4
ordered that he remain in foster care, and ordered family reunification services for the

parents, including supervised visits for mother upon her release from custody.

       On May 10, 2012, CFS placed A.T. with a nonrelated extended family member,

Mr. O., a placement that mother had endorsed.3 As part of a plea bargain to resolve the

criminal charges arising from the January 17, 2012, carjacking incident, as well as the

separate charges of burglary and forgery from her January 11, 2012, arrest, mother was

sentenced to probation and time served, and released from custody in May 2012.

       The six-month status review report, filed with the court on September 10, 2012,

but dated by the social worker on August 27, 2012, recommended A.T. remain in the care

of Mr. O., as well as continued reunification services for mother only, but not father. The

report noted certain concerns regarding mother’s participation in services, including and

especially mother’s anger and ability to manage it appropriately. Mother admitted she

had anger issues, including “blackouts,” and she was disruptive with service providers,

often cursing and yelling, and causing safety concerns. She was prescribed psychotropic

medication, and acknowledged that she needed medication, but resisted medication

monitoring. She did demonstrate some progress with respect to development of her

parenting skills, and had some positive visits with A.T. Nevertheless, she also displayed

her anger issues in several interactions relating to visitations with both Mr. O. and CFS

staff, raising concerns about her mental stability.



       3Mr. O. was familiar with A.T., because Mr. O.’s daughter and A.T.’s mother
had been friends for many years.

                                              5
       The report also noted that A.T. appeared to be a happy and active toddler. He

showed significant progress with respect to his delayed speech development, as well as

behavioral issues related to limits and boundaries. In addition to his visits with his

mother, he also had positive visits with one of his half brothers, and the half brother’s

father, with whom he appeared to have a strong bond.

       In a September 17, 2012 supplement to the six-month status review report, the

social worker informed the court that on September 4, 2012, mother violated her

probation by testing positive for amphetamines, and she had been arrested and detained.

The social worker also received a report from Mr. O. that mother had admitted to him

that she was selling marijuana from her home during August 2012. Additionally, the

social worker had learned mother was terminated from her outpatient substance abuse

treatment as of August 10, 2012, due to “‘no participation in services,’” and that she had

displayed “hostile behavior,” in addition to failing to accept accountability for past

behavior and to “embrace treatment.”

       At the review hearing on September 17, 2012, the court ordered continued family

reunification services for mother, terminated services for father, and added a

psychological evaluation to the requirements in mother’s case plan, over her objection.

       In the 12-month status review report, CFS recommended termination of mother’s

services, and setting a section 366.26 hearing to establish a permanent plan of adoption

for A.T. After violating her probation, mother had been sentenced on October 26, 2012,

to a prison term of four years eight months, which with credit for time served gave her an

anticipated release date of early December 2015. Mother had been incarcerated since her

                                              6
arrest in September 2012, and had not visited with A.T. as a result. At the 12-month

review hearing on April 11, 2013, the court agreed with CFS that mother had made

“minimal” progress in family reunification services, and terminated those services. The

court found no probability that A.T. would be returned to parental custody within the

statutory time frames, and set a section 366.26 hearing to consider termination of parental

rights.

          On June 11, 2013, this court dismissed mother’s writ petition, objecting to the

setting of a section 366.26 hearing, pursuant to a “non-issue” letter filed by her appointed

counsel.

          The CFS section 366.26 report dated August 8, 2013, recommended termination of

parental rights to permit A.T. to be adopted by Mr. O. The social worker found that

Mr. O. and A.T. had bonded and demonstrated mutual affection and love for one another.

A.T. seemed to view Mr. O. as a safe, parental figure, and he had been generally thriving

in Mr. O.’s care. Mr. O. recognized that A.T. had behavioral issues that require “frequent

redirection and attention,” and was working appropriately with A.T. on impulse and

temper control. Mr. O. was able to provide A.T. with a stable household, consisting of

Mr. O., his long-time partner, Mrs. F. (with whom he had raised four children who are

now adults), and Mrs. F.’s two granddaughters, aged four and less than one. The family

lived in a three-bedroom home with a “landscaped front yard and a large backyard for the

children to play,” in a “well-kept residential community.” Mr. O.’s amicable relationship

with A.T.’s half brother’s father is also noted, because it allows A.T. to see his half

brother and the half brother’s father, with whom A.T. had developed a parental

                                               7
relationship, on a consistent basis; Mr. O. appeared committed to maintaining these

relationships for A.T. The social worker observed that A.T. and the other two children in

the home “are the focal point of family decisions and Mr. O. is committed to do whatever

he needs to ensure the safety, permanency, and well-being of [A.T.] on a permanent

basis.”

          On October 23, 2013, mother filed a section 388 petition, requesting reinstatement

of family reunification services. The petition notes that mother, though still incarcerated,

had taken classes in prison that allowed her to become a fire fighter, and thereby earn

credits for an earlier release date. Instead of serving the anticipated sentence, she was

scheduled for release on December 15, 2013. In addition, the petition indicates that while

in prison, mother obtained a G.E.D. certificate, completed a parenting course and a stress

and time management workshop, and was taking an anger management course. With

respect to the best interests of the child, mother asserted that a minor is better off being

raised by the mother, rather than a nonrelative extended family member, but

acknowledged the argument that a nonrelative extended family member “is more of a

sure thing.” Nevertheless, she felt she had demonstrated her commitment to the return of

her son, and reinstatement of services would give A.T. “an opportunity to be returned to

his mother.”

          CFS opposed mother’s section 388 petition, arguing it was not in A.T.’s best

interest to reinstate family reunification services. The social worker noted that mother

had previously received services, and shown no benefit from them. She had a history of

poor decision making, leading to A.T. already being removed from her custody twice in

                                               8
his four years of life. In the social worker’s view, mother’s repeated failure “to create

and maintain stability for herself and the child” indicated that it would not be in A.T.’s

best interests to remove him from the permanent, stable home that Mr. O. had been

providing and would continue to provide. The social worker noted that Mr. O. was open

to maintaining contact between A.T. and mother, if she “is stable and doing well.”

       Mother was released from prison on December 15, 2013. After her release, she

visited with A.T. on several occasions. However, after the first visit, A.T. stated “‘I want

to stay with pipa’” (“pipa” refers to Mr. O.), and needed to be reassured that Mr. O.

would be picking him up from daycare. CFS staff reported that mother was unable to

control A.T.’s behavior or set boundaries for him, and did not demonstrate adequate

supervision of A.T., instead engaging with friends and family while A.T. would run off

without permission. Mr. O. reported that during a visit with mother on Christmas day,

mother was “mainly on her phone” and “did not engage with the child much.” In

contrast, a daycare provider reported that A.T., who had initially come to her “not

communicating well, with emotional problems as well as behavior problems,” had

thrived in the care of Mr. O. A.T. would “brighten right up” when he saw Mr. O., and he

had developed into a “well adjusted” child, with “no behavior problems (outside of a

normal 4 year old).” She expressed her view that “the love that is clearly shared between

[Mr. O. and A.T.] is remarkable,” and hoped that “they may continue together forever.”

       The court set a consolidated section 388 and section 366.26 hearing for

January 27, 2014. At the hearing, the father of A.T.’s half brother testified regarding his

observations of eight to 10 visits between A.T. and mother since her most recent release

                                              9
from prison. He testified that A.T. is sometimes “hard to deal with,” but felt that mother

was “pretty good” about dealing with him. He acknowledged, however, that during the

visits he would sometimes need to help out, for example, when she had her back turned

or was paying attention to something else, and stated that “what she doesn’t see, I catch.”

         Mother also testified at the January 27, 2014, hearing. She testified that A.T. calls

her “mom,” and jumps into her arms when he sees her, but also recognized that she

needed to “build [her] bond back” with A.T. She described the services she had utilized

in prison, including a “mail correspondence” anger management program, and a

substance abuse course, which was also “book study” only, because attending meetings

was incompatible with the fire fighting activities that reduced her sentence. She

acknowledged that she has “trouble controlling [her] emotions” and planned to meet with

a psychiatrist as part of her parole, though she had not yet done so. She insisted that she

now understood that she previously had “a bad attitude,” but she now was “willing to

address the issues that I know are hindering me from being . . . the best possible mom I

could be.” She was living with a friend, and working in home health care for $800 per

month, but planned to go “back to the union” to work as an electrician again once she had

a car.

         The final witness to testify at the January 27, 2014, hearing was the social worker

for the case. She testified that she had been in contact with mother on several occasions

since her release, and had not seen any marked change in mother’s behavior. It was

difficult for her to have discussions with mother, because mother “becomes very upset”

and “starts yelling, screaming, hanging up the phone, similar to the past experiences I had

                                              10
with her.” With respect to A.T.’s safety, the social worker felt that mother’s anger

management issues were “the biggest concern,” in addition to the substance abuse

treatment and any necessary mental health treatment.

       The court denied mother’s section 388 petition, finding that mother had not

demonstrated that the requested modification would be in A.T.’s best interests under the

second prong of the section 388 analysis. The court then found A.T. adoptable and there

to be no applicable exception to adoption, and terminated parental rights.

                                     II. DISCUSSION

       Mother contends that the court abused its discretion by denying her section 388

petition. We find no abuse of discretion, and therefore affirm.

       Section 388 “is an ‘escape mechanism’ when parents complete a reformation in

the short, final period after the termination of reunification services but before the actual

termination of parental rights. [Citation.]” (In re Kimberly F. (1997) 56 Cal.App.4th

519, 528 (Kimberly F.).) “In order to grant a petition pursuant to section 388, there must

be a substantial change in circumstances regarding the child’s welfare and the requested

modification of the prior order must be in the child’s best interests. [Citation.]” (In re

Heraclio A. (1996) 42 Cal.App.4th 569, 577.) Determining a child’s best interests under

section 388 involves a number of factors, including “(1) the seriousness of the problem

which led to the dependency, and the reason for any continuation of that problem; (2) the

strength of the relative bonds between the dependent children to both parent and

caretakers; and (3) the degree to which the problem may be easily removed or

ameliorated, and the degree to which it actually has been.” (Kimberly F., supra, at p.

                                             11
532.) We review the denial of a section 388 petition for abuse of discretion. (In re Y.M.

(2012) 207 Cal.App.4th 892, 918.)

       It is doubtful that mother established even the first prong of the section 388

analysis, by proving changed circumstances. Among other things, as of the January 27,

2014, hearing, mother had been out of jail for only a month and a half—less than half of

the interval between her plea bargain in May 2012 and her violation of the conditions of

her probation in September 2012 that led to her most recent period of incarceration.

During the month and a half since her release, mother had already displayed to CFS some

of the same anger management issues that had plagued her before. There is no evidence

in the record that mother participated in random drug testing after her release from

prison, and her attendance at 12 Step meetings was sporadic. She had not yet completed

even an initial meeting with a psychiatrist to address her mental health issues, though she

had previously acknowledged that she needed medication to control them. Her visits

with A.T. after her release demonstrated a continuing lack of engagement with the child,

and a lack of parenting skills. In short, it is questionable that mother demonstrated she

could now benefit from further reunification services, even though she had not benefitted

from them previously, let alone that she was likely to benefit to the extent of being able to

reunify with A.T. within the statutory time frames.

       In any case, however, the court did not abuse its discretion in determining, even if

mother had demonstrated changed circumstances, further reunification services would not

be in A.T.’s best interests. To the contrary, all of the factors articulated in Kimberly F.

weigh in support of the trial court’s decision. The problems leading to the dependency

                                             12
include mother’s cornucopia of substance abuse, mental health, and emotional problems.

Her lengthy criminal history includes domestic violence, child endangerment, and willful

cruelty to a child, among other things. These problems led not only to general neglect of

A.T., and possibly his behavioral issues and developmental delays, but also placed him in

immediate potential of serious bodily harm on at least one occasion, during the January

2012 carjacking incident. To say that the problems leading to the dependency are serious

is an understatement. Those problems have proven intractable over an extended period of

time, and to the extent they have begun to be addressed, they are in the early stages of

amelioration. Mother has expressed aspirations for being able to provide a safe and

stable home for A.T., but has shown only minimal progress in that direction. She may

have begun a “reformation,” but it is hardly “completed.” (See Kimberly F., supra, 56

Cal.App.4th at p. 528.)

       Additionally, the bond between mother and child has been strained, perhaps to the

breaking point, by her absence due to incarceration for a substantial percentage of his life.

In contrast, the record shows that A.T. and Mr. O. have developed a deep parental bond,

dating back to even before the dependency. Mr. O. is ready, willing and able to continue

to provide a safe, loving, stable, family home for A.T., as he has since A.T. was placed

with him. To the extent there is a bond between mother and A.T., Mr. O. is open to

maintaining it, so long as mother is stable and doing well.

       Mother further argues that, in general, children benefit more from growing up with

“natural parents,” as opposed to foster care. This argument is without merit, for several

reasons. Even assuming the truth of the basic principle asserted by mother, that generally

                                             13
children do better with natural parents than they do in foster care, that does not

demonstrate that placement with this natural parent, with her extensive problems, would

be more beneficial to A.T. than foster care placement. Moreover, A.T. is not on track for

long-term foster care: he is well on his way to being adopted by Mr. O., who shows every

indication of being an outstanding permanent parent for the child.

       In short, mother has demonstrated no abuse of discretion with respect to the denial

of her section 388 petition.

                                       III. DISPOSITION

       The order appealed from is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                HOLLENHORST
                                                                                       J.
We concur:


       RAMIREZ
                               P.J.

       RICHLI
                                  J.




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