Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. CK66663 D. Zeke Zeidler, Judge.
Donna Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
WILLHITE, Acting P. J.
This is the second time this matter is before us. In the first proceeding, we considered Mother A.C.’s petition for writ relief under California Rules of Court, rule 8.452 (rule 8.452), seeking to set aside the juvenile court’s order terminating reunification services as to son J.A. (born 12/06) and setting a Welfare and Institutions Code section 366.26 hearing. In an unpublished opinion, B213283, we denied relief.
All undesignated section references are to the Welfare and Institutions Code.
Before that opinion was filed, Mother filed in the juvenile court a section 388 petition, the denial of which is the subject of this appeal. The petition requested that J.A. be returned to her and that the court terminate jurisdiction, or, in the alternative, order reinstatement of reunification services, vacate the section 366.26 hearing, and set a review hearing. The juvenile court denied the petition. Mother filed both an appeal and a petition for writ relief under rule 8.452 in this court. We ordered that the writ petition be deemed the opening brief in the appeal, set a briefing schedule, and dismissed the writ proceeding. On appeal, Mother contends that the trial court abused its discretion in denying her section 388 petition. We disagree, and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In our prior opinion, we summarized the factual and procedural background leading to the termination of reunification services and the setting of a section 366.26 hearing. We rely again on that summary, supplemented by a summary of subsequent proceedings relevant to this appeal.
Proceedings Leading to Termination of Reunification Services and Setting a Section 366.36 Hearing
J.A. and his three half-siblings came to the attention of DCFS on January 16, 2007, due to allegations of general neglect by mother and domestic violence and drug sales against J.A.’s father (father). During an interview with mother, she initially denied the allegations of domestic violence. She later admitted that on January 12, 2007, father became upset when mother refused to let him take J.A. and he bit her. Mother denied father struck her. DCFS learned that father had been arrested for the January 12 incident. Later, mother conceded that father had punched her and caused her to sustain a black eye. He also threatened to throw her out of the window of the apartment. She said there had been prior incidents of violence. Mother admitted the children witnessed the incidents. She denied using physical discipline on the children. DCFS filed a section 300 petition against father on behalf of J.A. With respect to the half-siblings, J.C. (born 8/97), M.C. (born 3/99), and K.C. (born 7/05), a voluntary family maintenance case was opened. The children were returned to mother.
On January 19, 2007, J.A. was detained from father and released to mother’s custody. The court ordered DCFS to provide mother with referrals for domestic violence counseling, parenting classes, and individual counseling.
On January 22, 2007, DCFS received a referral from the Huntington Park Police Department, alleging that mother had left the children unattended and without any provision of support. A social worker went to the family home and learned from the children that mother had gone to work at 10:00 a.m. and was expected to return at 6:00 p.m. The social worker learned from neighbors that mother had left her children alone on other occasions. The children were removed from the home and mother was arrested for child cruelty. An amended section 300 petition was filed, alleging that mother had left J.A. (one month old) in the care of a nine-year-old sibling J.C. and K.C. in filthy and unhygienic conditions.
On April 20, 2007, after mother pled guilty to child cruelty (or child endangerment, the record is not entirely clear), she was deported to Guatemala. After several attempts, on June 22, 2007, the social worker had telephonic contact with mother. Mother reported that she was interested in taking the required courses and receiving counseling in Guatemala. She was hoping to obtain a visa to return to California by July 2007 and requested a continuance of the hearing until the end of July.
On April 16, 2007, father was deported to El Salvador.
On May 10, 2007, DCFS inspected the home of a maternal aunt to determine whether the children could be placed with her. DCFS found that the home was unsafe and there was no room for the children. In addition, the aunt’s son had a felony conviction.
Mother did not appear at the June 27 disposition hearing; however, she was represented by counsel.
Three of the children, J.A., J.C., and M.C. were declared dependents of the court and placed in a foster home. Mother was provided reunification services. She was ordered to complete parenting classes and participate in domestic abuse and individual counseling. DCFS was ordered to provide the parents with correspondence and online courses to address case issues and the children with phone cards to facilitate monitored telephonic visits. The six-month review hearing was set for January 4, 2008.
K.C. was placed in her father’s home while the court considered terminating jurisdiction. Jurisdiction over K.C. was terminated on August 2, 2007.
In the report for the six-month review hearing, the children’s social worker (CSW) informed the court that she had telephonic contact with mother on December 18, 2007. Mother told the CSW that she wanted to have custody of the children. Mother reported she had attended parenting and domestic violence classes in Guatemala and said she would mail confirming letters. Mother informed the CSW that she had been unable to attend individual counseling, as it was not available in Guatemala. Mother stated she had contact with father, who inquired about the status of her case. The CSW received a letter from Elsa Arevalo, a social worker in Guatemala, who wrote that mother attended classes from July 2007 to October 2007. Mother had monitored telephonic contact with her two older children, J.C. and M.C., who told the CSW they no longer wished to speak to her. J.C. said he did not want “to go back with [mother] for the things she’s done, she hit me[.] [E]verything is fine here.” M.C., when asked about reunifying with mother stated, “She’s mean and she left my brother J. [with] mark[s] on his hands.” DCFS recommended that mother’s reunification services be terminated.
At the January 4, 2008 six-month review hearing, mother was not present and was represented by counsel. The court found DCFS had made reasonable efforts to enable the parents to comply with the case plan, determined mother was in compliance with the case plan, and continued the 12-month review hearing to July 1, 2008. The court asked DCFS to contact the Guatemalan consulate to assist mother with finding appropriate counseling services. J.C. and M.C. were to be released to their father once they obtained passports to travel to Guatemala.
The court terminated jurisdiction over J.C. and M.C. on January 9, 2008.
In the report for the 12-month hearing, the CSW stated that mother continued to reside in Guatemala and the two maintained telephonic contact. The CSW spoke with Ms. Arevalo, the social worker in Guatemala, who informed her that mother had completed six parenting classes and six domestic violence sessions. Each class or session lasted about one and a half hours. Mother scored well on an exam on the two subjects. Arevalo said mother was referred to a psychologist to address case issues, but mother had not attended any individual counseling sessions. J.A. had adjusted to his current foster home and had become attached to his foster parents, especially his foster mother. He appeared to have issues with delayed speech and was referred to the regional center for an assessment. J.A.’s caregivers expressed interest in adopting him and a home study was started. DCFS found J.A. to be adoptable and recommended that mother’s reunification services be terminated and adoption be made the permanent plan.
At the July 1, 2008 12-month review hearing, mother was not present and was represented by counsel. The court found that DCFS had provided reasonable reunification services. County counsel noted that mother was being referred to a psychologist to address case issues. She expressed concern that the counseling mother had received did not constitute substantial compliance with the case plan, given the severity of the domestic violence and child neglect issues. The court noted that mother’s circumstances had to be considered and, up to that point in time, she had done all she could. It ordered reunification services continued to the date of the section 366.22 hearing (18-month review hearing). DCFS was ordered to arrange for visits between J.A. and the maternal aunt and explore possible placement with her. The 18-month review hearing was set for July 24.
The CSW provided mother with the necessary documents to apply for a visa in Guatemala with the United States Embassy. On June 10, 2008, the CSW received a denial letter from the embassy. The denial was based on mother’s criminal conviction and her prior unlawful presence in the United States.
DCFS informed the court that it had arranged a visit between J.A. and the maternal aunt. J.A. began crying during the visit. When the aunt tried to comfort him, he crawled under the CSW’s chair. The CSW assisted the aunt in getting J.A. out from under the chair and the CSW placed him in the aunt’s arms. He continued to cry and eventually fell asleep. The CSW determined the aunt’s home was still not safe for J.A., as it had a balcony with no rails, an exposed water heater, and an inoperable smoke detector. In addition, the aunt’s son, who had a prior robbery conviction, was living at the home. The aunt claimed that he was expected to move soon, but he had not done so by the time the report was written. DCFS reported that J.A. was very attached to the prospective adoptive applicants and viewed them as his parents. It continued to recommend termination of reunification services and adoption as the permanent plan.
In a last minute information report to the court, DCFS reported that a second visit between J.A. and the maternal aunt had taken place. As during the first visit, there was minimal contact between them, as J.A. cried and fell asleep. The aunt placed a rail on the balcony in the home and said her son had moved out.
At the July 24 hearing, mother’s counsel requested that J.A. be placed with the maternal aunt. The court declined, noting that the safety of the home had not been reassessed and DCFS had not verified that the aunt’s son had moved out. The court set the matter for a contested 18-month review hearing on September 29, 2008. The CSW wanted mother’s circumstances in Guatemala assessed prior to the hearing. It asked counsel to determine whether, given mother’s location, an alternative to terminating her parental rights was available. The court felt mother had done all she could in an attempt to comply with the case plan, but expressed concern that she had not seen J.A. in over a year and a half.
On August 15, mother filed a section 388 petition asking the court to remove the requirement that she complete individual counseling. She argued that she had successfully completed the parenting and domestic violence classes and could do no more because there were no individual counseling programs in Guatemala. The court ordered a hearing on the petition and set it on September 29, the same day as the contested hearing.
On August 29, DCFS told the court that in order for it to initiate an International Home Study (ICPC), the court needed to provide a signed minute order directing DCFS to request the assessment. The order was provided that day.
In a supplemental report prepared for the September 29 hearing, DCFS advised the court that mother had been caught attempting to illegally cross the border into the United States. On September 15, 2008, the CSW was informed that mother was in custody at the Century Regional Detention Facility in Lynwood and was given her booking number. At the direction of the deputy county counsel, the CSW submitted a request to the Sheriff’s Department that mother be transported to the September 29 hearing. However, mother could not be located in the Sheriff’s holding facility. The CSW learned that mother was possibly in the custody of immigration authorities in Santa Ana. On September 17, the court issued an order that mother be transported to the hearing. It appears the court was under the impression that the immigration judge was going to hold mother until she had an opportunity to attend the dependency hearing. The CSW attempted to submit a transportation request to immigration authorities. Although she made several telephone calls to numbers she had been provided, the CSW was unable to secure mother’s attendance at the hearing.
At the September 29 hearing, the court continued the matter to November 13 and ordered DCFS to comply with its order to complete the ICPC.
Prior to the November 13 hearing, the court was informed that the ICPC had not been completed. A CSW had spoken to a Guatemalan social services representative, who requested that the home study request be sent again (it was originally transmitted on September 3). The representative was asked if Guatemala Social Services would be willing to provide courtesy supervision of mother. The representative said he would e-mail a response. The CSW advised the court that in her experience it would take three to four months before the home study paperwork was processed. The CSW assigned to the case was unable to contact mother despite leaving several messages. The court learned that mother had received individual counseling from October 18 to October 28, 2008. No further information with regard to the number of sessions she attended or the substance of the counseling she received was provided.
At the contested hearing on November 14, mother requested a continuance until the ICPC was completed. County counsel objected, noting that it had been 22 months since J.A. was detained and, at that point, J.A.’s interests were paramount. The court decided to hear the evidence to determine whether the ICPC was necessary.
The only witness to testify was the CSW assigned to mother’s case, Laura Castro. She testified to the services she provided mother since the time she took over the case in late 2007. She contacted mother in December. Mother had already received referrals from the prior case worker and had submitted documentation showing she had completed parenting classes and domestic violence counseling. Castro informed mother that she needed to complete individual counseling to comply with the case plan. Mother said she had been given a referral to see a psychologist and was trying to obtain a letter verifying her sessions. Castro had successfully arranged for J.C. and M.C.’s father to obtain a visa in order to take custody of his sons and attempted to do the same for mother; however, the United States Embassy denied mother’s request. She contacted Guatemalan social services and the consulate in an effort to ensure mother received the proper referrals and had a number of telephone conversations with mother. After mother was deported the second time, Castro tried unsuccessfully to contact her. She last spoke to mother in June 2008.
Although Castro acknowledged that mother had complied with the case plan as best she could under the circumstances, she believed the classes and counseling mother had received did not adequately address the issues which led to DCFS intervention -- severe domestic violence and child endangerment. Castro believed that 52 weeks of domestic counseling would begin to address the case issues mother had in that regard. She stated that normally parents were expected to complete 12 parenting classes. She testified J.A. had special needs. He had issues with speech development and was receiving services from the regional center. He had a therapist who came to the home twice a week. Castro testified that DCFS’s adoption worker believed it was in J.A.’s best interest to remain in his current placement due to the fact that it was the only stability the child had ever known.
On November 25, the parties presented their arguments. County counsel argued that DCFS had provided reasonable services to mother. She contended that mother had not substantially complied with the case plan. She claimed that even if mother had completed all of the programs available in Guatemala, there was still a question whether they adequately addressed the problems which led to the filing of the petition. Mother was involved in two abusive relationships with the fathers of her children, including father, denied father sold drugs, and left a one-month-old child in the care of a nine year old. Finally, even if mother had substantially complied with her case plan, return of J.A. to mother would be detrimental to him. J.A. had lived with his foster parents for 22 of the 23 months of his life and his current home provided the stability and medical care he needed.
Mother’s counsel faulted DCFS for mother’s failure, if any, to complete the case plan. If CSW Castro felt mother’s counseling was inadequate to address case issues, she had the responsibility of informing mother or the Guatemalan social service counselors and failed to do so. She argued mother had done all that was possible to regain custody of J.A. and requested that he be returned to her. She asserted, at the very least, mother should be given additional reunification services because of the unusual circumstances of the case. This would provide additional time for the ICPC to be completed. She disputed that a return to mother would be detrimental to J.A., urging that DCFS failed to provide any evidence to support such a finding.
J.A.’s counsel recognized the unique circumstances presented by the case. However, he pointed out that at that stage in the proceedings (22 months since J.A.’s detention), the court had to focus on what was best for the child. He concurred with county counsel that mother’s classes and counseling were inadequate and urged the court to terminate her reunification services because it was in J.A.’s best interest.
The court found DCFS provided reasonable services, stating that “the worker has made some pretty stupendous efforts in this case.” While noting that mother’s attempt to reunify with J.A. was a sad consequence of illegal immigration and she did all she could under the circumstances, the court found “those efforts have been limited by the situation in which she has found herself.” It concluded, “that the compliance of the mother is not sufficient for this court to find that the child would not be at risk if returned to her care and custody.” The court found by clear and convincing evidence “that to return the child to the care and custody of the mother does pose a substantial risk of detriment.” The court terminated reunification services and set the matter for a section 366.26 hearing.
Prior Writ Proceeding in This Court
As we have noted, Mother filed a rule 8.452 writ petition in this court challenging the juvenile court’s order. In our opinion in that proceeding filed September 8, 2009, we denied relief, concluding that: (1) DCFS provided Mother with reasonable reunification services; (2) the court properly refused to extend reunification services; and (3) substantial evidence supported the court’s finding that returning J.A. to Mother would create a substantial risk of detriment to him.
Subsequent Events Relevant to This Appeal
The Section 388 Petition
While the rule 8.452 writ proceeding was pending in this court and before we issued our opinion, Mother filed a section 388 petition in the juvenile court on April 17, 2009, alleging changed circumstances and seeking the following alternative relief: (1) an order terminating jurisdiction over J.A. and returning J.A. to her; or (2) an order reinstating Mother’s reunification services, vacating the section 366.26 hearing, and setting a review hearing; or (3) an order dismissing the section 388 petition conditional on Guatemala opening a dependency case, with J.A. to be returned to Guatemala to permit Mother to receive reunification services there. The changed circumstances alleged were that there had been a favorable inspection report on Mother’s home in Guatemala and a favorable report from her psychologist, and that she had received independent counseling and attended parenting and domestic violence classes that would permit the safe return of J.A. to her.
Included with the petition were several documents relating to Mother’s circumstances in Guatemala. One was a social study/home inspection report of Mother’s residence in Guatemala. Authored by Guatemalan social worker Elsa Arevalo, the report stated that Mother was living in a 4-bedroom home, along with her mother (the owner of the home), Mother’s sons J.C. and M.C., Mother’s disabled brother, and the two sons of Mother’s sister (who lived in the United States). The home is of block construction with a laminated roof and tile floor. Photographs of the home were attached to the report. The home has electricity, water for domestic use (drinking water must be purchased), a bathroom, kitchen, and dining room. When inspected (apparently sometime around February 2009), it was in good hygienic condition. The report also contained certifications that none of the residents has a criminal record in Guatemala.
The original documents were in Spanish, and were provided with English translations by one of Mother’s attorneys. The attorney also submitted a declaration attesting to his efforts to obtain updated information on Mother from Guatemala, which resulted in receipt of the documents. Translations by certified court interpreters were later provided to the court by County Counsel.
Also included with the petition was a report from a psychologist in Guatemala, Janette Villalta. According to Ms. Villalta, Mother had attended 8 individual counseling sessions from October 18 through 28, 2008. The counseling sessions dealt with domestic violence, self esteem, family values, and the importance of communication within the family. Based on the 8 sessions, Ms. Villalta believed that Mother had the ability to recognize and understand domestic violence and its physical and emotional consequences to herself and her children, and the importance of stimulating and maintaining the personal self-esteem of her children. The psychologist concluded that “there is no impediment on an emotional level to keep [Mother] from exercising the responsibility of raising, attending to, and educating her children.” She recommended that Mother “continue with her individual and family counseling which will enable her to deal with certain aspects of her life, fundamentally that of improving her family relationships. This will aid her in making decisions that will optimize her time and enable her to realize her personal and family projects.”
Mother submitted her own declaration in which she stated that after she was deported to Guatemala in April 2007, she was unable to find classes or individual counseling in the town in which she lived. However, in the provincial capital, a bus ride of almost two hours away, she was able to attend parenting and domestic violence classes with social worker Elsa Arevalo, and also seven individual counseling sessions with a psychologist, Arturo Valdez. The counseling sessions dealt with domestic violence and supervision of young children. She believed that the classes and counseling sessions gave her an understanding of domestic violence and its effects. Although J.A.’s father had called her on the phone various times inquiring about J.A.’s case, she had no desire to have contact with him and would not return to him. After unsuccessfully trying to return to Los Angeles in September 2008 and being deported again, she participated in counseling with Jeannette Villalta (her prior psychologist had left his position).
Mother also explained that the father of J.C. and M.C. had left them with her, because he could no longer care for them. They were happy living with her, and doing well in school. They missed J.A. and wanted him to live with them. Mother, too, expressed her desire to have J.A. returned to her, and attested to her ability to care for him.
DCFS’s Response to the Petition
The court granted Mother a hearing on her petition, and in June 2009, DCFS filed a response to the petition, later supplemented by additional information. The CSW noted that J.A. had been placed with his foster parents in January 2007, nearly two-and-a-half years earlier, when he was approximately one month old. He had resided there ever since. They were now his prospective adoptive parents, and had established a close bond with them. He referred to them as “mami” and “papi.” J.A also had monthly visits with his half-sister K.C., who resided with her father in Los Angeles. DCFS believed that separating J.A. from the foster parents and from K.C. would be detrimental and cause unnecessary emotional distress.
J.A. was receiving intensive speech therapy, and his prospective adoptive mother had been instructed on how to aid him with his speech. Such services were available in Guatemala, but at a location approximately two-and-a-half hours from Mother’s residence (Mother told the CSW that she would ensure that he got there). Also, J.A. might not be eligible for the services because he is not a Guatemalan citizen. Mother had not seen J.A. since his detention in January 2007, and had called him only once. She had not inquired as to his well-being, and had not contacted him on his birthday or on holidays. Mother told the CSW that she had attempted to telephone J.A. several times after his detention, but that prospective adoptive mother (then the foster mother) would not allow her to speak to him. Mother then stopped trying to contact J.A. By contrast, the prospective adoptive mother said that mother had called twice, but J.A.’s half-siblings, J.C. and M.C., had refused to speak to her. Mother never called again.
Guatemalan social worker Elsa Arevalo informed the CSW that Mother had completed 6 parenting and 6 domestic violence classes in a short period of time. The CSW believed that so few classes in a compressed time frame were not sufficient to learn and implement the necessary skills to deal with the complex issues involved.
Hearing on the Petition
The hearing on the petition was held before the same commissioner who had handled the case since its inception. At the hearing, psychologist Janette Villalta testified by telephone from Guatemala. Ms. Villalta conceded that she reached the conclusions in her report without ever seeing Mother interact with any of her children. She believed that in the 8 counseling sessions she had with Mother, Mother “was able to be aware of many of the problems that brought her to that place of violence. That is why [she needs] to continue [therapy].” Mother needed follow-up counseling “to deal with the problems of depression that were appearing throughout the treatment, [and] to improve her relationship and help her in her self esteem.” Ms. Villalta had not seen Mother since October 28, 2008 (Ms. Villalta testified on June 3, 2009). Mother had come twice since then, but was unable to get an appointment because Ms. Villalta was the only psychologist at the clinic and was “really saturated” with patients. Mother had no future appointments. Ms. Villalta’s opinion remained as stated in her report: Mother “has no... emotional impediment to be able to raise her children.”
Following admission of the prior reports and translated documents included with Mother’s petition, the court heard argument in which Mother’s counsel argued for return of J.A. to Mother, and DCFS and J.A.’s attorney opposed such relief. In a lengthy oral ruling, the court concluded, in substance, that Mother’s interests in raising J.A. outweighed the potential disruption to J.A. that might be caused by returning him to Mother. The court ordered J.A. returned to Mother and directed DCFS to make his travel arrangements to Guatemala.
Grant of Rehearing
DCFS and J.A. filed requests for rehearing, which were granted, and the matter was transferred to a judge.
DCFS filed additional opposition to the section 388 petition, which included a declaration from Ivette Alcaraz, J.A.’s Infant Development Specialist from November 2008 through April 2009. According to Ms. Alcaraz, J.A.’s play-based therapy sought to deal with cognitive skills, language, motor skills, and social-emotional development. The therapy occurred in the home of his prospective adoptive parents. Through “immense play therapy” in which the prospective adoptive parents were deeply involved, J.A. showed improvement in cognitive and language skills. Ms. Alcaraz witnessed J.A.’s positive relationships with the prospective adoptive parents and their extended family, and J.A. always sought comfort from the prospective adoptive mother. Ms. Alcaraz expressed “concern[] about the welfare and overall development of [J.A.], and believ[ed] it is in [J.A.’s] best interest to remain in” the prospective adoptive mother’s custody.
J.A.’s attorney also submitted a brief, supported by several exhibits. One exhibit was a declaration of J.A.’s foster mother. She discussed her family (retired husband, three adult children) and her 4 current foster children. J.A. is considered part of the family, and he considers the foster parents to be his parents. J.A. had been diagnosed with Attention Deficit and Hyperactivity Disorder (ADHD), and had significant speech delays. He is a client of the Regional Center, whose therapists treat him for speech and language development and aid in developing his motor skills. The foster parents take 15 hours of continuing education each year regarding teaching techniques for children with ADHD.
According to the foster mother, Mother had called her home only twice, and both times asked to speak to J.A.’s half-siblings, M.C. and J.C., who were then living there. They refused to speak to her. Mother never asked about J.A.
J.A.’s attorney also submitted a report by Alfredo Crespo, Ph.D., a clinical psychologist who, at counsel’s request, evaluated the foster parents and observed their family’s interaction with J.A. The purpose of the report was to assist in determining J.A.’s level of bonding with the foster parents “as well as the impact on his emotional health that may be predicted in the event that he is reunited with his mother in Guatemala.” Dr. Crespo had a conjoint session with the foster parents, two of their adult children, two grandchildren, and J.A. At a subsequent session, he conducted interviews of the foster parents, and they completed self-administered psychological tests. He also reviewed “extensive case documents but due to time constraints mostly focused” on the June 2009 Status Report and the Minor’s and DCFS’s briefing in response to the section 388 petition.
Dr. Crespo stated his conclusions as follows: “In my opinion the removal of [J.A.] from the only family he has ever known [and with which he had bonded] is tantamount to removing a child born to his birth parents, and risks to his emotional functioning may include, in the short run, what has been labeled in the... literature as anaclitic depression. This is a condition found in young children with little contact with their attachment figures who withdraw from the socio-economic world. If removed from his psychological parents, [J.A.] may also be placed at risk for emotional problems in the long-term, e.g., depression.”
Dr. Crespo expressed concern that in Guatemala J.A. might have contact with his father, whose violent behavior caused J.A. to come to the attention of DCFS in the first place, and that J.A. might not receive adequate therapy to treat his special needs. He concluded: “I am of the opinion that [J.A.] would be placed at risk for short-term and long-term emotional problems that would be precluded if his prospective adoptive parents are granted their desire to adopt and raise Joseph.”
The Rehearing
The rehearing was held on August 10, 2009. The court considered all the evidence presented in the first hearing, as well as the additional submissions by DCFS and J.A.’s counsel for the rehearing. The court focused on Dr. Crespo’s opinion that returning J.A. to mother would place him at risk of short- and long-term emotional problems. In response to Mother’s counsel’s argument that Dr. Crespo had not considered Mother’s evidence, the court noted that Dr. Crespo had not focused on Mother’s condition, but rather on J.A. and the risks to him of disrupting the bond with the foster parents. The court found that Mother had shown a change of circumstance, but had not met her burden of showing that it was in J.A.’s best interests to be returned to her: “I think where the Mother fails, is best interest of the child[.] [W]hile one can feel for the mother that she has done everything, tried to do everything she was to do, even with being deported, followed through in another country which most of our parents don’t do, tried her hardest, the issue at the 388 still has to do with best interest of the child and we now have a child who is two and a half years old in the same placement all of this time, 730 evaluator indicating that the child could suffer severe depression if replaced based on the level of bonding. It’s not the type of situation where we can at least have ongoing visits with the foster parents to transition him because we’re talking about moving him to another country. So, the 388 petition is denied as not being in the best interest of the child.”
DISCUSSION
Mother contends that the juvenile court abused its discretion in denying her section 388 petition. In connection with that contention, she makes a host of overlapping arguments which we synthesize into the following: (a) Mother did not have to prove that return to her was in J.A.’s best interests; (b) the report of the clinical psychologist on which the court relied was flawed and not credible and the court misremembered it; (c) the court failed to give sufficient weight to Mother’s evidence; and (d) the court’s focus on detriment to J.A. based on his bond to his prospective adoptive parents violated Mother’s due process right to return of J.A., because she is now a fit parent. We disagree with Mother’s contentions.
“A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new or changed circumstances exist, and (2) the proposed change would promote the best interest of the child. [Citation.] The parent bears the burden to show both a ‘“legitimate change of circumstances”’ and that undoing the prior order would be in the best interest of the child. [Citation.]” (In re S.J. (2008) 167 Cal.App.4th 953, 959-960 (S.J.).) To the extent Mother contends that she did not need to prove that a change in the prior order was in J.A.’s best interest, her argument is contradicted by settled case law. (See, e.g., In re Nolan W. (2009) 45 Cal.4th 1217, 1235 [under section 388, “[a] parent may regain custody after reunification services have been terminated only by showing that changed circumstances demonstrate a return to parental custody is in the child’s best interests”]; In re Stephanie M. (1994) 7 Cal.4th 295, 316–317 [same]; see also In re Kimberly F. (1997) 56 Cal.App.4th 519, 526-527, fn. 5 (Kimberly F.), and cases therein cited.)
Among the factors to be considered in determining whether a return of J.A. to Mother was in his best interest include: “(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of 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, 56 Cal.App.4th at p. 532.) “The petition is addressed to the sound discretion of the juvenile court, and its decision will not be overturned on appeal in the absence of a clear abuse of discretion.” (S.J., supra, 167 Cal.App.4th at pp. 959-960.) We review the record in the light most favorable to the juvenile court’s ruling, and draw all reasonable inferences in favor of that ruling. (In re Stephanie M., supra, 7 Cal.4th at p. 319 [“‘“When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court”’”].)
Here, the problem which led to dependency jurisdiction was domestic violence between Mother and J.A.’s father, and Mother’s endangering J.A. and her other children by leaving them alone and unattended on various occasions, resulting in Mother being convicted of child endangerment or child cruelty. As we noted in our prior opinion in the earlier rule 8.452 writ proceeding, the domestic violence issues were “substantial, ” and the issues of child endangerment “serious.”
There is no doubt that the strength of relative bonds between J.A. to his foster parents (who are also the prospective adoptive parents) and Mother favors not returning J.A. to Mother. Mother is J.A.’s biological parent, but has no relationship with him. She has never spoken to him by telephone since he was detained, and has never called the foster parents to check on his condition. He was placed with his foster parents when he was approximately one month old, and has a close child-parent bond with them. Indeed, they are the only parents he has ever known.
In his report, Dr. Crespo compared taking J.A. from the foster parents to taking a birth child from biological parents, and opined that it would risk emotional problems to J.A. in the short term and depression in the long term. Moreover, J.A. has special needs: he has been diagnosed with ADHD, and receives therapy in which his foster parents are instrumental. Such services might not be available to J.A. in Guatemala because he is not a Guatemalan citizen, and no doubt the requirement that he take a two and a half hour bus ride to the services could well cause a practical impediment, despite Mother’s best intentions to get him to therapy.
On appeal, Mother attacks Dr. Crespo’s report. She contends that the risk of emotional harm to J.A., if any, was situational and would not be long term. She argues that the report was not credible and that Dr. Crespo did not consider mother’s evidence showing a change in her circumstances. None of these arguments demonstrates an abuse of discretion in the juvenile court’s reliance on Dr. Crespo’s opinion concerning the risk of harm to J.A. Indeed, in our prior opinion, we rejected Mother’s contention that substantial evidence did not support the juvenile court’s finding that returning J.A. to her custody would create a substantial risk of detriment. We observed, in part: “We need only examine J.A.’s circumstances to find support for the court’s order. The court was rightfully concerned with moving ‘the child from the family that he has connected himself to and bonded with in his important early years of his life.’ J.A. was one month old when he was taken from mother’s custody and, with the exception of futile attempts to have telephone conversations, he had not had contact with her since. For the ensuing 22 months between detention and the section 366.22 hearing, he lived in the home of the foster parents who propose to adopt him. Their home is virtually the only one he has ever known and, not surprisingly, he has become extremely bonded with them. He is a special needs child, as he has issues with speech development and receives services from the regional center.”
Mother also refers to evidence outside the record (psychological literature) to challenge the Dr. Crespo’s reference to “anaclitic depression.” Because this evidence was not presented to the trial court, we do not consider it.
The evidence also raised a question whether Mother had received sufficient counseling to ameliorate the issues of domestic violence and child endangerment. Mother presented evidence that she had attended 7 individual counseling sessions with psychologist Arturo Valdez before her unsuccessful attempt to return to Los Angeles in September 2008, and 8 sessions with Jeannette Villalta from October 18 through 28, 2008. Also, DCFS was told by social worker Elsa Arevalo that Mother had attended 6 parenting and 6 domestic violence classes in a short period of time. Although Mother’s efforts in obtaining this counseling and therapy are admirable, it is nonetheless reasonable to question whether the relatively small number of classes and counseling sessions, attended in compressed time frames, were adequate to deal with the serious issues of domestic violence and child endangerment that led to dependency jurisdiction.
Indeed, Ms. Villalta’s opinion was limited to her belief that Mother had “no impediment on an emotional level” to raising her children. But she also believed that Mother needed additional counseling to deal with relationship and depression issues, and to improve her self-esteem. From the date of Mother’s last appointment with Ms. Villalta (October 28, 2008) to the date of Ms. Villalta’s testimony (June 3, 2009), a period of more than 7 months, Mother had attempted only twice to get a future appointment (she was unsuccessful), and had received no further counseling. Thus, the extent to which Mother’s counseling with Ms. Villalta had ameliorated the problems that led to dependency jurisdiction was open to substantial doubt.
Mother contends that in its ruling, the court erroneously referred to Dr. Crespo’s report as indicating that J.A. could suffer “severedepression”if placed with Mother, based on his bond with the foster parents. As Mother notes, Dr. Crespo did not specifically state that J.A. might suffer “severe” depression. But he did liken removing J.A. from the foster parents to “removing a child born to his birth parents, ” and stated that J.A. would be at risk of short-term and long-term emotional problems, including depression. The court’s off-hand reference to the risk of “severe” depression does not mischaracterize the import of Dr. Crespo’s opinion, and does not suggest that the court failed to understand the report.
Mother contends that the court failed to give sufficient to weight to her evidence. We disagree. The court was well aware of Mother’s proof showing changed circumstances, and spoke favorably of Mother’s efforts. The court simply concluded, on all the evidence, that returning J.A. to Mother was not in J.A.’s interests. That the court reached such a conclusion does not mean that the court failed to give Mother’s evidence the weight to which it was entitled.
Mother also relies on the findings made by the commissioner before the rehearing. Of course, a rehearing before a judge is conducted de novo. (§ 254.)
Mother contends that she is now a fit parent, and has a fundamental due process right under Santosky v. Kramer (1982) 455 U.S. 745 to return of J.A. The premise of the contention is faulty – Mother has not proven that she is a fit parent, because, as we have observed, there is substantial doubt whether she has ameliorated the problems that led to dependency jurisdiction. The juvenile court’s comment that “[t]here is a change of circumstance. There is new information” was not tantamount to a finding that mother is now fit.
In sum, Mother fails to show that the juvenile court abused its discretion in denying her section 388 petition.
DISPOSITION
The order appealed from is affirmed.
We concur: MANELLA, J. SUZUKAWA, J.