Filed 8/14/15 In re Ashley F. CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re ASHLEY F. et al., Persons Coming                           D067301
Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND                                      (San Diego County
HUMAN SERVICES AGENCY,                                           Super. Ct. No. SJ12842A-C)

         Plaintiff and Respondent,

         v.

BRANDON F.,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, Kenneth J.

Medel, Judge. Affirmed.

         Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and

Respondent.
       Brandon F. (father) appeals a juvenile court order summarily denying his petition

for modification under Welfare and Institutions Code section 388.1 Father contends that

he made a prima facie showing of changed circumstances, the proposed modification—

reinstatement of reunification services—was in the minors' best interests and, therefore,

the court abused its discretion by denying him a hearing on his section 388 petition. We

affirm the order.

                    FACTUAL AND PROCEDURAL BACKGROUND

       On November 26, 2012, the San Diego Health and Human Services Agency (the

Agency) filed juvenile dependency petitions pursuant to former section 300, subdivision

(b) (now section 300, subdivision (b)(1))2 on behalf of Ashley, Mia, and Miley

(collectively the minors), who are sisters and were 11, seven, and five years old,

respectively. The petitions alleged that the minors had suffered, or were at substantial

risk of suffering, serious physical harm or illness. Specifically, the petitions alleged that

the father had left the minors unattended and unsupervised and that he had left them in



1      All further statutory references are to the Welfare and Institutions Code.

2       In 2014 the Legislature redesignated section 300, subdivision (b) as section 300,
subdivision (b)(1). (See Historical and Statutory Notes, 73 West's Ann. Welf. & Inst.
Code (2015 supp.) foll. § 300, p. 66.) This subdivision states in part: "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 failure or inability of his or her parent or guardian to adequately
supervise or protect the child, or the willful or negligent failure of the child's parent or
guardian to adequately supervise or protect the child from the conduct of the custodian
with whom the child has been left, or by the willful or negligent failure of the parent or
guardian to provide the child with adequate food, clothing, shelter, or medical treatment,
or by the inability of the parent or guardian to provide regular care for the child due to the
parent's or guardian's mental illness, developmental disability, or substance abuse."
                                              2
the care of their grandfather, a known alcoholic, who wrecked his vehicle while under the

influence of alcohol in 2012. The petitions also alleged that both the father and mother3

left the minors unsupervised on multiple occasions when they exchanged custody, and

there was a substantial risk of suffering serious physical harm or illness within the

meaning of section 300, subdivision (b). Furthermore, the petitions alleged that the father

abused methamphetamine and prescription drugs, he kept a filthy home, he drove without

a valid driver's license, and that the children often showed up to school in soiled clothing

with dirty and unkempt hair and in need of bathing.

       The Agency's detention report detailed the events leading up to the filing of the

petitions. Beginning in September 2012 the Agency received multiple referrals for child

abuse and/or neglect involving allegations of lack of supervision, the minors going to

school hungry and with poor hygiene, and a filthy home environment. The father

admitted using methamphetamine as recently as late October or early November 2012.

       At the detention hearing, the court ordered (among other things) that the minors be

detained at the Polinsky Child Center for placement in an approved foster home and that

visitation with the father be supervised.

       In December 2012 the Agency filed its jurisdiction and disposition report. In the

report, the Agency recommended that the minors be declared dependents of the San

Diego Juvenile Court, that the minors remain in foster care, that the father participate in

reunification services, and that visits between the minors and father be supervised.



3      The mother is not a party to this appeal.
                                              3
       At the jurisdictional and dispositional hearing held in January 2013, the father

submitted to the petitions, the court sustained the petitions, declared the minors

dependents, removed them from parental custody, and placed them in foster care. The

court advised the father he had "12 months to participate regularly and make substantive

progress in court-ordered treatment programs to cooperate with or use department

services, or parental rights could be terminated." The court ordered the Agency to

"provide services to [the father] consistent with their case plan," and ordered the father to

"comply with those services."

       The Agency filed a six-month status review report, noting that the minors had

been residing in a foster home since November 2012 and were doing well, but they

missed their father. The father had been seeing the minors in regular supervised visits,

but he had not made significant progress in the reunification services. The report also

indicated that the father was attending parenting classes, but he had not yet begun his

substance abuse treatment or individual therapy. The father also failed to show up for a

drug test in May 2013. The Agency recommended that the father continue to have

supervised visitation, that he be offered an additional six months of reunification services,

and that the minors continue to be placed in foster care.

       In the January 2014 12-month status review report, the Agency noted that the

father had had regular visitation with the minors, but had minimally participated in his

reunification services. In October 2013 the father was arrested and charged with

possession of stolen property and vehicle theft. As part of a plea deal, the father enrolled

in a substance abuse treatment program. He had become homeless and he was briefly

                                              4
housed at the CRASH inpatient facility, but was released about two weeks later for

misconduct. He was at that time participating in inpatient substance abuse treatment at

the House of Metamorphosis. The agency also reported that the minors continued to

progress well while remaining in foster care. The Agency recommended that the minors

continue in foster care and the father be given an additional six months of reunification

services.

       On March 12, 2014, the date of the contested 12-month review hearing, the

Agency filed an addendum report which noted that the father had been attending the

House of Metamorphosis drug recovery program since December 2013, and he had been

drug tested twice a month and did not test positive during this period. However, the

father's case manager at House of Metamorphosis reported that, although the father

continued to attend the treatment center, he was not really there because of purported

medical appointments elsewhere, which affected his participation. The Agency also

reported that the father "ha[d] taken slow steps to complete his services" and "ha[d]

exhibited poor decision making during this reporting period such as getting arrested and

getting discharged from his prior substance abuse center." The Agency further reported

that "[i]t was the Agency's hope that with the help of therapy, the father would be able to

gain insight about how his decisions have impacted the [lives] of his children. However,

it appears that the father has not been able to gain . . . insight and continues to make

excuses about the past incidents." Reversing its earlier recommendation that

reunification services be extended, the Agency recommended that the services to the

father be terminated and that the court set a section 366.26 hearing.

                                              5
       At the hearing, the court ordered that the minors remain in foster care. The court

did not terminate the father's reunification services and set a date in May 2014 for the 18-

month review hearing.

       The Agency's 18-month status report indicated that the minors were still in the

care of the foster mother and doing well. The father continued to participate in substance

abuse treatment at House of Metamorphosis and was completing his required services

and meetings. The father continued to pass all drug tests during this period. However,

the father's therapist reported that the father had stopped attending his weekly therapy

sessions in April 2014 due to his being busy. The father progressed to unsupervised

visits with the minors, but then ceased contact with the minors for a period of over two

weeks. The Agency reported that the father had been unable to continue attending the

required services outlined in his case plan and recommended that the minors remain in

foster care, but that the father continue to receive reunification services.

       The court-appointed special advocate (CASA) prepared a report for the court in

May 2014 in which she noted that the minors were doing well with the foster mother, but

that they had expressed the desire to live with their father. The CASA noted that, after

one unsupervised visit with their father, the minors returned hungry because the father

took them to a movie, but then did not have enough money to buy them lunch. The

CASA's report mentioned that the father enrolled in individual therapy but had been

discharged after four weeks for lack of substantive progress. The CASA commended the

father's efforts to comply with his case plan, but pointed out his shortcomings and

recommended an additional six months of reunification services.

                                              6
       The court continued the 18-month review hearing to August 5, 2014.

       In June 2014 the Agency filed an addendum to the 18-month review report in

which it again recommended that reunification services for the father be terminated, that

visits be supervised, and that the foster mother be granted educational rights for the

minors. The Agency reported that in late May the father was discharged from individual

therapy without meeting any of his goals and in June the father had tested positive for

methamphetamine. The report revealed that the father had not complied with the House

of Metamorphosis's request that he provide pay stubs as proof of employment. As a

result, the father was discharged from House of Metamorphosis in May 2014.

       The Agency recognized that, although the father and minors love each other, the

father has been unable to put the welfare of the minors ahead of his own, as evidenced by

his failure to successfully participate in drug treatment and maintain sobriety on his own.

The Agency found the risk of the father's relapsing into drug abuse was "very high." The

Agency stated that the minors, while under the care of the foster mother, had shown

"tremendous improvement in school, self-esteem and stability." The Agency found that

the father's inability to maintain sobriety and fully participate in a drug treatment program

severely reduced the likelihood that the minors could return to their father's care without

suffering abuse or neglect and recommended termination of reunification services.

       At the contested 18-month review hearing in August 2014, the court found by

clear and convincing evidence that returning the minors to the father's care would create a

substantial risk of detriment to their emotional and physical well-being. Noting that the



                                             7
father "ha[d] not made substantive progress with the provisions of the case plan," the

court ordered that reunification services to the father be terminated.

       Section 388 petition

       In December 2014 the father filed his section 388 petition seeking modification of

the order terminating his reunification services because he could show changed

circumstance. In support of the petition, the father asserted that he entered the

Fellowship Center Alcohol and Drug Program (Fellowship Center Program) in August

and completed the program in October. He then entered the Veterans Village of San

Diego Program where he participated in various programs including individual therapy.

He also asserted that he was attending another 12-step program and had been "testing

clean." The father requested reinstatement of reunification services and return of the

minors to his care.

       The Agency filed an addendum report in January 2015 recommending that the

father's reunification services not be reinstated because the father's counselor at the

Fellowship Center Program reported that the father was not drug tested during his stay,

and he did not attend drug education classes. The Agency noted that the father "has

consistently shown that he is willing to start services but not to follow through with

[them]."

       At the January 2015 hearing on the father's section 388 petition, the court

summarily denied the petition and stated the factual basis for its ruling (discussed, post).

The father appeals the summary denial of his petition.



                                              8
                                      DISCUSSION

       The father contends the court abused its discretion by summarily denying his

section 388 modification petition. He asserts he made a prima facie showing of changed

circumstances, and the proposed modification—reinstating reunification services—was in

the minors' best interests.

       A. Applicable Legal Principles

       A party may petition the court under section 388 to change, modify or set aside a

previous court order. (In re Justice P. (2004) 123 Cal.App.4th 181, 188.) The

petitioning party has the burden of showing, by a preponderance of the evidence, that (1)

there is a change of circumstances or new evidence, and (2) the proposed change is in the

child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Casey D.

(1999) 70 Cal.App.4th 38, 47.) The petition must be liberally construed in favor of its

sufficiency. (Cal. Rules of Court, rule 5.570(a); In re Marilyn H. (1993) 5 Cal.4th 295,

309.) "The parent need only make a prima facie showing to trigger the right to proceed

by way of a full hearing." (In re Marilyn H., at p. 310.) "[I]f the liberally construed

allegations of the petition do not make a prima facie showing of changed circumstances

and that the proposed change would promote the best interests of the child, the court need

not order a hearing on the petition. [Citations.] 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." (In re Zachary G. (1999) 77 Cal.App.4th

799, 806.) "In determining whether the petition makes the necessary showing, the court



                                             9
may consider the entire factual and procedural history of the case." (In re Justice P.,

supra, 123 Cal.App.4th at p. 189.)

       "We review the juvenile court's summary denial of a section 388 petition for abuse

of discretion." (In re Anthony W. (2001) 87 Cal.App.4th 246, 250, citing In re Jeremy W.

(1992) 3 Cal.App.4th 1407, 1413.)

       B. Background

       At the hearing on the father's petition for modification, the court explained its

reasoning for summarily denying the petition:

          "The court is often frustrated in these cases because we give a
          speech early on, usually at the detention hearing, about how
          important time is. We really want parents to get better in terms of
          the issues that brought you here, but we're not willing to wait forever
          because kids have a right to get things done right away.

          "In this case the kids . . . are . . . three or older and so there would be
          a 12-month period of time to get things done. And now, we're at a
          21-month period for the father and he's in the midst of programs to
          help him change some prior behaviors.

          "[A]nd I do acknowledge that the burden of proof on a prima facie is
          a low burden of proof, and this court takes normally a very liberal
          approach on granting prima facies in this case, but the court also is
          reluctant to engage in proceedings that are futile under the time
          frames that we have.

          "[M]y view of the scheme as we know it is that parents have 12
          months on kids like this and now we're beyond the 18-month point.
           . . . I want the father to continue on his course, but I just think it's
          too late at this point.

          "I agree with the comment made . . . about the extraordinary
          circumstances required to expand our one-year time limit down to
          two years, which is 24 months. It's only in a rare and extraordinary
          case that we would do that, and this is not the case.


                                              10
          "I am not going to consider the information provided by the social
          worker today, I'm only going to consider it from an evidentiary
          hearing standpoint. Two things: No. 1, I'm going to take judicial
          notice of the proceedings that we have in our file and the timeline
          that we have, and, No. 2, only the four corners of the petition itself is
          what I'll consider from an evidentiary standard.

          "I guess what one might say is[,] I'm just saying in a generic fashion
          the result on prima facie might be different at a different time in this
          case. I can't say that one way or the other, but it's . . . definitely the
          court's primary ruling here [that] it's just too late in the timeline, so
          respectfully, . . . I'm going to decline the prima facie." (Italics
          added)

       C. Analysis

       1. Father's claim of changed circumstances

       The father claims that the trial court erred in denying his request for an evidentiary

hearing on his section 388 petition because he made a prima facie showing of changed

circumstances. We disagree.

       The father contends that because he enrolled in and completed the Fellowship

Center Program in October 2014 and is participating in individual therapy, he has

demonstrated changed circumstances. This contention is unavailing. The father did not

complete the court-ordered treatment programs despite the warning from the court that a

failure to complete the programs could result in termination of his parental rights.

Instead, the Fellowship Center Program the father completed did not require the father to

be drug tested as a condition of completion, nor did it require the father to take drug

education classes.

       The record indicates that the father has used methamphetamine since 1998, has

abused prescription drugs, and has repeatedly demonstrated a tendency to relapse as

                                              11
evidenced by a positive test for methamphetamine as recently as June 2014 and another,

self-reported, relapse a month later. This latest relapse in July 2014 occurred 18 months

after the court, in January 2013, ordered the father to comply with reunification services.

The fact that he has completed the Fellowship Center Program, which did not require

drug testing for completion, does not constitute prima facie evidence of a changed

circumstance within the meaning of section 388. At most, it supports an inference of a

changing circumstance.

       Furthermore, the father's inability to complete a court-ordered drug treatment

program supports the inference that the father is unable or unwilling to fully come to

terms with his drug addiction, making another relapse not just likely, but possibly

inevitable. The record supports the social worker's assertion in the Agency's January

2015 addendum report that the father "has consistently shown that he is willing to start

services but not follow through with [them]." For these reasons, we conclude that the

father has not made a prima facie showing of changed circumstances.

       2. The minors' best interests

       Even if we were to conclude that the father has met his burden of making a prima

facie showing of changed circumstances, we reject his assertion that he has made a prima

facie showing that the requested modification, reinstating reunification services, is in the

minors' best interests.

       "The concept of a child's best interest 'is an elusive guideline that belies rigid

definition.'" (In re Ethan N. (2004) 122 Cal.App.4th 55, 66, quoting Adoption of

Michelle T. (1975) 44 Cal.App.3d 699, 704.) The purpose of this concept is to promote a

                                              12
child's ability to mature into a stable, well-adjusted adult. (In re Ethan N., at p. 66.) The

California Supreme Court has explained, "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 interests of the child." (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)

       Here, when the minors were first taken into protective custody, they had poor

hygiene, lice eggs in their hair, and two of the minors had bacterial infections. Once the

minors were placed in foster care, the social workers reported that the minors were

progressing well. One social worker stated that the minors had shown "tremendous

improvement in school, self-esteem and stability," while under the foster mother's care.

       The father and minors have a strong bond, and the minors have expressed their

desire to be reunited with their father. However, given the father's 17-year history of

drug abuse, his inability to complete court-ordered programs and to abstain from using

methamphetamine even during the period he was receiving reunification services,

establishes that he still puts his own desires and needs above those of the minors.

Furthermore, the father displayed a pattern of poor judgment when interacting with the

minors during the reunification services period. On one occasion, the father took the

minors to the movies, but did not have enough money to buy them lunch afterward, and

returned them to the foster mother hungry. On another occasion, he entrusted one of his

young daughters with a large amount of cash for an unknown purpose. The father also

engaged in criminal activity during the proceedings in this case, resulting in his arrest.

                                              13
          As the court emphasized in denying the section 388 petition, the father was given

reunification services well beyond the usual 12-month period to resolve the issues that

resulted in the minors' being taken into protective custody. The court decided, and we

agree, that he failed to resolve those issues, making any further reunification services

futile.

          The record indicates that the minors are currently placed with a very organized

and loving foster mother, in whose care the minors have demonstrated significant

progress in their mental and physical well-being, and also in their educations. One social

worker even noted that "the [minors] have shown comfort in the presence of the foster

mother." The foster mother has indicated a willingness to keep the minors long-term or

adopt them if reunification services proved unsuccessful.

          For all of the foregoing reasons, we conclude the court did not abuse its discretion

by summarily denying the father's section 388 petition for modification.

                                         DISPOSITION

          The order is affirmed.


                                                                                   NARES, J.
WE CONCUR:


                BENKE, Acting P. J.


                           Prager, J.*


*       Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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