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In Re K.S., A Person Coming Under the Juvenile Court Law. v. A.S

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)


September 15, 2011

IN RE K.S., A PERSON COMING UNDER THE JUVENILE COURT LAW. SHASTA COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
A.S., DEFENDANT AND APPELLANT.

(Super. Ct. No. 09JVSQ2663302)

The opinion of the court was delivered by: Murray , J.

In re K.S.

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appellant, the mother of the minor, appeals from the juvenile court's orders denying her request for modification and terminating parental rights. (Welf. & Inst. Code, §§ 366.26, 388, 395.)*fn1

On appeal, appellant contends she was not afforded due process because the juvenile court denied her modification request without a "full evidentiary hearing." She also contends the juvenile court abused its discretion by finding she had not made a prima facie showing entitling her to a hearing on her modification request. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Shasta County Health and Human Services Agency (the Agency) first filed a dependency petition concerning the minor in October 2006, not long after the minor was born. The petition was based on appellant's failure to reunify with her other five children, who had been removed as a result of her substance abuse. The petition alleged that, as recently as November 2004, two of appellant's other children had been removed from her care because of her arrest and incarceration for drug-related offenses. Appellant was denied services with those children the following year due, in part, to her continued drug use.

In January 2007, the allegations in the petition were sustained. However, as appellant and the father had maintained sobriety for almost two years, the minor remained in their care, and the juvenile court ordered family maintenance services.

The detention report stated that in March 2007, law enforcement received an anonymous report that there was a dispute at the home. Both parents had been drinking alcohol. Officers arrested father for domestic abuse. A social worker called by law enforcement determined the mother was able to care for the minor and the minor remained placed with the parents with continuing services. By the review hearing in December 2007, all of appellant's drug tests had been negative and she had regularly been attending 12-step meetings as well as counseling and adhering to a mental health plan to address her mental health issues. Consequently, the juvenile court terminated dependency jurisdiction.

In March 2009, a new petition was filed concerning the minor, now two and one-half years old, alleging the parents had been arrested for offenses involving domestic violence, being under the influence of drugs, and child endangerment. According to the petition, methamphetamine and a pipe were within reach of the minor and appellant admitted recently abusing methamphetamine.

The minor was detained and the allegations in the petition were sustained. Despite the Agency's recommendation against providing reunification services to appellant, the juvenile court ordered services for both parents.

The parents complied with their case plans, including the completion of domestic violence programs and drug and alcohol treatment. For appellant, this included the Intensive Drug and Alcohol Day Treatment Program, which she had completed in a previous case.

At a review hearing in March 2010, the court gave the Department discretion to place the minor with the parents for a 90-day trial visit. The minor, who had been placed with the paternal grandparents, was returned to her parents' care shortly after the hearing.

Unbeknown to the social worker or the juvenile court, appellant had been arrested the previous month for public intoxication. According to a police report from the incident, appellant was causing a disturbance at a gas station and, when contacted by a police officer, she exhibited symptoms of intoxication that included an odor of alcohol, slurred speech and an unsteady gait. Appellant told the officer "she had been drinking alcohol since the previous night." She also exhibited signs of having used a "central nervous system stimulant." She had hydrocodone/APAP in her purse.

Furthermore, in May 2010, the parents had a dispute in the presence of the minor during which the father threatened to physically harm appellant. The father had been drinking at the time, and the father claimed that appellant also had been drinking. The parents did not disclose this incident.

The juvenile court ordered the minor placed back with the grandparents and set the matter for a contested review hearing. Meanwhile, a substance abuse assessment of appellant in June 2010 recommended that she "seek structured, supportive transitional living or long[-]term residential treatment" as well as daily recovery activities.

A review hearing was held in July 2010. The minute order indicates appellant made an offer of proof "in regards to her attendance in AA meetings and classes," and her attorney argued that she was continuing to make progress. The juvenile court terminated reunification services and set the matter for a section 366.26 hearing in early November 2010 to select and implement a permanent plan for the minor.

Less than two weeks before the section 366.26 hearing, appellant filed a request to modify the juvenile court's previous order terminating reunification services. The request alleged that, since the previous hearing, appellant had continued to participate in a first offender driving under the influence (DUI) group and 12-step meetings, and had been working with a "sponsor," who could confirm that she was making progress in several programs or meetings she was attending. Appellant also had signed up to begin another DUI program. Verification of this information was attached to the modification request. Appellant requested return of the minor to her with family maintenance services, asserting that modification would be in the minor's best interest because they shared a close bond and reunification would "allow the [minor] to avoid the trauma that comes from being separated from one's parent."

Appellant's attorney applied to the court for an order for funds to obtain a bonding assessment, which was authorized by a judge who had had minimal involvement in the matter.

Shortly before the section 366.26 hearing, the juvenile court signed an order setting appellant's modification request for a hearing on the same date as the section 366.26 hearing. The order contained a preprinted finding that "the best interest of the [minor] may be promoted by the request."

On the date scheduled for the hearing, appellant's attorney requested a continuance because the bonding assessment had not been completed. The attorney for the Agency argued there was insufficient basis to warrant granting a hearing on appellant's modification request because she had attended the same kind of treatment in the past and had relapsed, and there was no information to indicate the parents had further addressed their domestic violence issues. The Agency's attorney also pointed out that the minor had spent half her life in foster care and needed stability and security. Appellant's attorney responded that appellant was "continuing to better herself to be a good parent for the [minor] and be able to provide a safe and stable home," which constituted changed circumstances. The attorney argued that the bonding assessment was necessary to assess the minor's best interests.

Without objection, the social worker made an unsworn statement to the court, pointing out that the minor had been present when the recent domestic violence had occurred, that a child cannot attach when there is not safety in the home, and, as there was no evidence that the parents' domestic violence issues had been resolved, the modification request was not in the minor's best interest.

Appellant's attorney did not seek to cross-examine the social worker or present any other witnesses. He argued only that appellant was doing what was available to her and what she could afford financially.

The juvenile court stated it would not have signed the order for a bonding assessment and that it did not want to prolong the case any longer. It explained that the reason it had granted a hearing on the request for modification was because the section 366.26 hearing date was coming up. The court concluded it would be detrimental to continue the matter or to return the minor to the parents, finding that, even if there was a bond between the parents and the minor, the minor needed permanence and the parents had demonstrated repeatedly "that they're going to relapse and not move forward." Accordingly, the court denied appellant's request for modification, finding there was not a sufficient change of circumstances and it would not be in the minor's best interest to order further services.

The court entered its written order on Judicial Council Forms, form JV-184, entitled "Order After Hearing on Form JV-180, Request to Change Court Order." On this form, the court wrote: "Matter was formally heard on 11-05-10 - the Court signed the JV-183 on 11-01-10 to avoid further delays in the case. After full argument, the Court does not find there is a sufficient change in circumstances & also finds that providing 6 months of additional services would not be in the best interests of the child and would be detrimental to her. The child needs permanence and the parents have not demonstrated that it is likely they can provide that permanence for the child." The section 366.26 hearing was continued so the bonding assessment could be completed for that hearing.

The assessment found that appellant's bond with the minor was "fair (yet not remarkable)." According to the evaluator, the minor's "behavior before and after visits suggest[ed] that she perceives her parents as important, yet not essential parts of her life." The evaluator felt that termination of parental rights would not be detrimental to the minor.

At the continued section 366.26 hearing, the juvenile court ordered a permanent plan of adoption and terminated parental rights.

DISCUSSION

Appellant's primary contention is that she was denied due process when the juvenile court did not hold a "full evidentiary hearing" on her request for modification. We find no merit in this claim.

Section 388, subdivision (a), provides in pertinent part: "Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made . . . ."

Appellant claims the juvenile court violated her "due process right to testify and to cross-examine opposing witnesses" by "refusing to hold a full evidentiary hearing" on her modification request. A juvenile court is not always required to proceed by way of witness testimony at a hearing on a modification request. To the contrary, "proof may be by declaration and other documentary evidence, or by testimony, or both, at the discretion of the court" (Cal. Rules of Court, rule 5.570(h), last par.), unless a modification request seeks removal from a parent or termination of services, or "[t]here is a due process right to confront and cross-examine witnesses." (Id., rule 5.570(h)(2)(C).) "[J]uvenile proceedings need not be 'conducted with all the strict formality of a criminal proceeding.'" (In re Lesly G. (2008) 162 Cal.App.4th 904, 914 (Lesly G.).)

In the present matter, we disagree with appellant's assertion that the juvenile court "refused to go forward with the hearing" after the social worker and the Agency's attorney addressed the court. Although the Agency's attorney argued that appellant had not set forth a sufficient basis to warrant a hearing, the court stated only that it did not want to prolong the matter by continuing the hearing for appellant to obtain a bonding assessment. The court had before it evidence in the form of documents attached to appellant's modification request verifying the efforts she was making to address her substance abuse. Appellant's attorney, whose opportunity to address the court was not restricted, did not indicate any desire to present witness testimony at the hearing. Nor did he object to the social worker's unsworn statement to the court or in any way indicate he wanted to cross-examine her. The only additional evidence he sought to admit was the bonding assessment, which had not been completed and, thus, was unavailable.*fn2 He did not seek to introduce any evidence on the changed circumstances alleged; nor did he seek to rebut any information provided to the court on appellant's progress. Instead, the court heard arguments on whether appellant had demonstrated changed circumstances, and appellant's attorney argued the merits of appellant's request. Moreover, the court ruled on it, finding there was not a sufficient change of circumstances to warrant modification and it would not be in the minor's best interest to order further services. The court entered its written order on Judicial Council Forms, form JV-184, entitled "Order after Hearing," further indicating that the court entertained appellant's modification request after considering the evidence presented.

Lesly G., on which appellant relies, is distinguishable. In that case, the parent's attorney sought to introduce evidence on a modification request and objected when the court denied the modification without accepting evidence from the parent. (Lesly G., supra, 162 Cal.App.4th. at p. 911.) The appellate court held the parent was denied due process because "[t]he court neither took testimony nor received documentary evidence, and it denied the petition without affording counsel an opportunity to argue the merits of the petition. In short, it provided no hearing whatsoever." (Id. at p. 915.)

Here, in contrast, appellant submitted documentary evidence with her modification request and was afforded the opportunity to argue the merits of her request. Moreover, other than the bonding assessment, appellant's attorney did not seek to present any further evidence and did not object to the procedure utilized by the juvenile court. Thus, Lesly G. is inapposite.

In re C.J.W. (2007) 157 Cal.App.4th 1075 is more on point, and appellant's attempt to distinguish that case is unavailing. In C.J.W., the juvenile court issued an ambiguous order that appeared to both grant and deny an evidentiary hearing on the parents' modification request. (Id. at p. 1080.) The appellate court acknowledged this inconsistency but concluded that the hearing held by the juvenile court comported with due process because the court received written evidence and heard argument on the parents' request for modification, and the parents did not object to this procedure. (Id. at pp. 1080-1081.) Such was the case here, as well.

Furthermore, even if it had been the juvenile court's intent to reverse its prior order granting appellant a hearing, appellant's attorney did not object to this procedure on due process grounds or otherwise. "In dependency litigation, non-jurisdictional issues must be the subject of objection or appropriate motions in the juvenile court; otherwise those arguments have been waived and may not be raised for the first time on appeal." (In re Christopher B. (1996) 43 Cal.App.4th 551, 558.) "[A]ny other rule would permit a party to trifle with the courts by standing silently by, thus permitting the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable." (In re Urayna L. (1999) 75 Cal.App.4th 883, 886.) We also note that it was within the juvenile court's authority to set aside its prior order setting a hearing on appellant's modification request if, upon further consideration, the court deemed it appropriate to do so. (§ 385.)

Appellant argues, in the alternative, that the juvenile court abused its discretion by denying her modification request without a hearing. As already discussed, we reject appellant's assertion that she was denied a hearing. We note, further, that the appellate record does not include the reporter's transcript from the hearing at which the order that was the subject of appellant's modification request was made. We cannot evaluate whether appellant's request contained sufficient allegations to establish a prima facie showing without a complete record concerning the basis of the juvenile court's original order.

In any event, we discern no abuse of discretion by the juvenile court on the record before us. A juvenile court is required to order a hearing on a request for modification if "it appears that the best interest of the child may be promoted by the proposed change of order." (Cal. Rules of Court, rule 5.570(e)(1).) "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. (1993) 5 Cal.4th 295, 310.) However, the court may deny the petition ex parte if the petition "fails to state a change of circumstance or new evidence that may require a change of order or termination of jurisdiction or, that the requested modification would promote the best interest of the child." (Cal. Rules of Court, rule 5.570(d)(1).)

Appellant's modification request alleged that, since the previous hearing, she had continued to participate in various outpatient programs. Appellant had participated in numerous such programs in the past and had been able to maintain sobriety for periods of time, always followed by relapses. Thus, appellant's recent short-term success in outpatient treatment did not constitute a change of circumstances. Not surprisingly, her latest substance abuse assessment recommended that she participate in a structured, supportive transitional living or long-term residential treatment, a recommendation that she did not follow. As found by the juvenile court, appellant's assertion that the minor and she shared a close bond was not a sufficient basis to jeopardize stability and permanence for the minor when appellant's history indicated that the prospects for successful reunification with her remained poor. Consequently, we reject this claim as well.

DISPOSITION

The juvenile court's orders are affirmed.

We concur: ROBIE , Acting P. J. BUTZ , J.


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