Opinion
F042456.
7-30-2003
In re MEGAN L., et al., a Person Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. SHAE L., Defendant and Appellant.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. B. C. Barmann, Sr., County Counsel, and Mark L. Nations, Deputy County Counsel, for Plaintiff and Respondent.
Appellant Shae L. appeals juvenile court orders denying her Welfare and Institution Code section 388 petitions as to her three children and terminating her parental rights. We affirm the orders.
Further statutory references are to the Welfare and Institutions Code.
Factual and Procedural History
Appellants case history is well known to this court and has been recounted in detail in two previous opinions. (F038360, F040572.) We summarize it again here:
Appellant suffers from bipolar disorder, as well as drug and alcohol addiction. She also has a long history of juvenile court intervention. Her two oldest children, Matthew and Megan, were first detained in November 1999 after Matthew, then five years old, wandered to an abandoned hotel where he was forced to perform sexual acts on another child. The juvenile court sustained allegations appellant failed to adequately provide for and supervise the children. ( § 300, subd. (b).) The court agreed to dismiss allegations that appellants mental illness, substance abuse and domestic violence with the childrens alleged father placed the children at risk of harm if she agreed to continue mental health counseling and drug testing. The court also ordered appellant to participate in domestic violence and child neglect counseling and complete a parent-training course.
Appellant initially complied with that case plan, and in May 2000 the court returned the children to her custody with family maintenance services. However, her progress quickly waned; she resumed her drug use, stopped regularly attending counseling and reestablished contact with her violent boyfriend, Sergio (despite a no-contact order). Predictably, Sergio ultimately assaulted appellant and she apparently decompensated precipitously after the assault.
In December of 2000, the Kern County Department of Human Services (department) again placed Matthew and Megan in protective custody and filed a petition pursuant to section 342, alleging that appellant placed her children at risk of harm from domestic violence and the deleterious effects of her untreated psychiatric condition. ( § 300, subd. (b).) The department also filed a petition pursuant to section 387 seeking removal of the children from appellants custody. The court sustained the allegations and set the matter for disposition.
The dispositional hearing was not held until June 8, 2001, when the court ordered the children removed from appellants custody, terminated reunification services and set the matter for a section 366.26 hearing. Appellant filed a petition for extraordinary writ from that order. In an unpublished opinion, this court granted relief, directing the juvenile court to vacate its dispositional orders (Shae L. v. Superior Court (Aug. 4, 2001) F038360).
In November of 2001, Matthew and Megan were returned to appellants custody with family maintenance services. Just two months before, in September 2001, appellant had given birth to Marcus. In January 2002, Sergio was released from prison and moved in with appellant and the children, violating the no-contact order still in effect. During this time, appellant continued to test positive for drugs and the violence between appellant and Sergio continued.
In February of 2002, Sergio once again beat and threatened appellant, this time in front of the children. The children were all once again taken into protective custody. Once in custody, Megan reported that Sergio lived in the home nearly every day. However, appellant told her not to tell anyone or they would be taken from her. Often, Megan and Matthew were forced to sleep either on the couch or at a neighbors house when Sergio spent the night. Megan reported she was having nightmares. Even after the incident and after the children were removed from her, appellant permitted Sergio to be in the home.
The department filed dependency petitions as to Matthew and Megan, alleging appellant failed to protect them from Sergio and requesting the court find the existing order, placing them in her custody, ineffective. The department also filed a dependency petition as to Marcus, alleging, among other things, appellant placed him at risk of harm because of her ongoing domestic violence with Sergio and her prior neglect of Matthew and Megan. ( § 300, subds. (b), (j).) The court sustained the allegations and set the matter for disposition.
In its dispositional report, the department recommended that the court terminate reunification services for Matthew and Megan and deny appellant reunification services as to Marcus, pursuant to section 361.5, subdivision (b)(10), because appellant failed to reunify with Matthew and Megan. At the dispositional hearing, the court terminated reunification services for Megan and Matthew and denied appellant reunification services for Marcus pursuant to section 361.5, subdivision (b)(10) stating:
"The mother has not fully addressed the problems that led to the dependency. Its in fact at least at this point presented additional problems and because she has exhausted the period of reunification services for the other two children and has not addressed those problems, that service for this child are [sic] being denied under subsection (10)."
This court subsequently affirmed the juvenile courts denial of services as to Marcus. (Shae L. v. Superior Court (Aug. 16, 2002) F040572.)
In August 2002, appellant filed a section 388 petition for modification as to all three children, contending her circumstances had changed because she had left Sergio, stabilized her medication and wanted the children returned to her care. A combined section 388/366.26 hearing was eventually held on January 10, 2003. Appellant presented testimony that she had completed her counseling programs, was on new medication and had not used drugs in about eight months. Appellant testified that she would like to resume custody of all of her children, but that she did not want to force Megan or Matthew (the two older children) to live with her if they did not want to.
The court denied appellants section 388 motion as to all three children, recognizing that the circumstances were different as between the older children and the infant, Marcus. The court then terminated appellants parental rights. She timely appeals.
Discussion
"Section 388 permits a parent to petition the court on the basis of a change of circumstances or new evidence for a hearing to change, modify or set aside a previous order in the dependency. The parent bears the burden of showing both a change of circumstance exists and that the proposed change is in the childs best interests. [Citation.]" (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) We do not disturb the decision of the juvenile court absent a clear showing the court abused its discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318, 867 P.2d 706.) We find no abuse of discretion here.
First, we note that it is unclear both below and on appeal whether appellant is conceding that the trial courts orders were appropriate as to the older children (Megan, age 12, and Matthew, age 8), who have expressly stated they do not want to be returned to their mother. At the section 388 hearing, appellant testified she did not want to "force" Megan and Matthew to live with her if they did not want to; her counsel stated, "on the 388, I request a return of the children as it relates to the youngest child." On appeal, appellant states that, as to the best interests standard, she had "a high hurdle to meet [as to Megan and Matthew] because they did not want to see her again." Appellant then focuses her entire argument on the best interests of the infant, Marcus. Because she makes no argument with respect to Megan or Matthew that it was in their best interests for a change in orders, the contention is waived. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785, see also Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)
In any event, as we explain, any change in orders would clearly not have been in any of the childrens best interests. At the hearing on the section 388 petition, appellant described the improvements in her life and her current stability and attributed her change of circumstances to new medication for her bipolar disorder, describing it as "changing her life." Regardless, however, appellant was unable to make any showing that it would be in any of the childrens best interests to either be returned to her custody or to further delay stability in their lives by offering her additional reunification services . (In re Stephanie M., supra, 7 Cal.4th at p. 317 [parent has burden of proving both changed circumstances and best interests].) The children were all three placed together in a relative placement (appellants brother and wife) where they enjoyed a "reciprocal bonded relationship" with their caretakers. Matthew and Megan made it very clear they did not want to return to appellants care and, in fact, had not even wanted to visit appellant for some time. Infant Marcus had been placed with the relative caregivers since he was five months old, and looked to his caretaker, not appellant, for comfort and support during visits. Further, appellant completely discounted any suggestion that it could be difficult on Marcus to be separated from his siblings if the court did as she appeared to be asking and return him but leave the older children with appellants brother because she contended if she got Marcus back her brother would "come around me again." Respondent aptly notes, "appellant was asking the court to defer adoption planning for Marcus and surrender the stability of his placement and his bond he enjoyed with his half-siblings in exchange for appellants promise to do better." Appellants promise does not constitute evidence that placement or further reunification services with her were in Marcuss, or the older childrens, best interests. Rather, as we repeatedly emphasize, at this point of the proceedings the childrens interest in stability and permanence was the courts paramount concern. (See In re Stephanie M., supra, 7 Cal.4th at p. 317.)
We note also that respondent appropriately points out that appellants circumstances were not actually "changed," but rather "changing," in that while she may currently have her disorder and substance abuse under some level of control, she had previously made similar "changes" and yet resumed her destructive and dangerous behavior that led to the current round of dependency proceedings. (See In re Casey D., supra, 70 Cal.App.4th at p. 47 ["A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the childs best interests. (In re Edward H. [(1996)] 43 Cal.App.4th 584, 594."].) "Childhood does not wait for the parent to become adequate." (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.)
In a lengthy letter addressed to the juvenile court in November 2002, Megan made very clear that she did not want to be returned to her mother. She wrote, in part: "Your Honor, [P ] It is very, very important to me that you know I dont want my brothers and I to be given back to my mom" and "I am asking you please dont send us home again because she always dose [sic] the same thing over and over again."
At the time of the hearing in January 2003 Marcus was 15 months old.
In reply, appellant argues that reunification services (as opposed to return of the children to appellant) would not upset the childrens stability and she should receive reunification services "to build on [the] parent-child" relationship. This argument completely ignores the fact that appellant did receive services, multiple times, with Megan and Matthew. There was simply no evidence that returning Marcus or the older children to appellant or ordering additional services would be in their best interests.
Disposition
The judgment (orders) denying appellants 388 petition and 12 terminating her parental rights to all three children are affirmed.