Opinion
NOT TO BE PUBLISHED
Super.Ct.No. JD219851
SCOTLAND, P. J.
M.C. (appellant), the mother of M.G. (the minor), appeals from the juvenile court’s order denying appellant’s petition for modification of placement. (Welf. & Inst. Code, §§ 388, 395; further section references are to this code unless otherwise specified.) She contends the court was biased against her, abused its discretion in denying her section 388 petition, and should have entered orders protecting her visitation rights.
We conclude the claim of judicial bias is frivolous because it “indisputably has no merit, ” i.e., “any reasonable attorney would agree [the accusation of bias] is totally and completely without merit.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) Appellant’s other claims of error also fail. Thus, we will affirm the order denying her section 388 petition.
BACKGROUND
A
In March 2005, appellant’s children, E.C., I.C., M.C., and the minor, were placed in protective custody by the Sacramento County Department of Health and Human Services (DHHS) after ten-month-old M.C. sustained critical head injuries consistent with abuse while in the care of appellant’s live-in boyfriend, Costel Rusu.
Appellant claimed that she was in the shower when M.C. was injured, and said she did not believe that Rusu hurt the baby. However, the minor’s father believed Rusu had done so because the minor often had bruises and also suffered a black eye and a knocked out tooth, and because appellant became upset when he brought up the minor’s injuries.
In April 2005, the five-year-old minor told a social worker that Rusu hit both the minor and E.C. Asked if appellant knew, the minor replied, “No, because she was at work.”
In March 2005, DHHS filed a petition alleging jurisdiction under section 300, subdivision (j) (abuse of a sibling) and later amended it to include allegations under section 300, subdivision (b) (failure to protect). The minor was placed with his paternal grandparents, whom he had known since birth and with whom he had a close, loving relationship.
The juvenile court sustained the amended petition; terminated jurisdiction over I.C. after placing him with his father; continued E.C. and M.C in foster placement; continued the minor’s placement with his paternal grandparents; and denied reunification services pursuant to section 361.5, subdivision (b)(5).
Appellant appealed, claiming there was insufficient evidence to support jurisdiction. This court rejected the contention and affirmed the juvenile court’s orders. (In re I.C. (Nov. 6, 2006, C051337) [nonpub. opn.].)
After the juvenile court scheduled a section 366.26 hearing, DHHS asked appellant to discuss the matter, but she never replied.
In April 2006, the minor’s father told the social worker that the minor was happy living with the paternal grandparents and that the father visited every day and helped the paternal grandmother tend to the minor’s needs. Concluding that adoption was not appropriate because the minor had continuing contact with the father, DHHS proposed the paternal grandparents as guardians.
In May 2006, the juvenile court appointed the paternal grandparents as guardians for the minor and retained jurisdiction over the guardianship (§ 366.4).
B
While the dependency proceedings were pending, appellant gave birth to J.C., who was fathered by Rusu. J.C. was initially removed from appellant’s custody, but was reunited with her after services were offered.
In September 2008, appellant filed a section 388 petition for modification of the minor’s placement based on her successful reunification with J.C. and the minor’s purported desire to be with appellant.
In November 2008, a DHHS report by social worker Kristi Adams revealed the following:
The minor had recently displayed poor attitude and behavior after returning from visits with appellant, causing the paternal grandparents to “voice[] their concerns regarding sending [him] home to his mother.” However, when they learned that appellant had completed services in J.C.’s case and was cooperating with DHHS, the grandparents stated that, “ if [appellant] was able to care for [the minor], he should be home with her, ” and they “would respect the Court’s decision no matter what it was in the end.”
The minor was doing well in school and was in good health but had refused to go to the dentist for over a year. When interviewed at school in October 2008, the minor was very polite and dressed appropriately. He wanted to go home with appellant.
The minor’s father was uncomfortable with having the minor returned to appellant’s custody, but did not voice any specific concerns.
When the social worker met with appellant at her Sacramento home in November 2008, it was clean and comfortable with no health or safety concerns. The two-bedroom house belonged to J.C.’s paternal great uncle. If the minor were returned to appellant’s custody, he would have his own bed but would share a room with his half-brother and appellant. There were two schools for the minor within walking distance, and appellant was on a waiting list for child care so she could work full time. Appellant said she was also on the waiting list for federally subsidized housing and hoped to get a place of her own. She planned to move to Reno to be closer to family members.
The case history for J.C. showed that appellant had completed individual therapy and parenting classes, and was involved in parent-child interactive therapy and a parent-child bonding class.
Carmen Aguilar, appellant’s family reunification social worker for J.C.’s dependency, said appellant completed all of her services and was very cooperative. Aguilar had no concerns about the minor being returned to appellant’s home at that time.
Social worker Kristi Adams recommended that the court terminate legal guardianship and place the minor with appellant under court supervision.
The minor’s counsel opposed the petition, arguing that appellant presented changing, but not changed, circumstances and that a change of placement would not be in the minor’s best interests.
Appellant moved to Nevada in January 2009. DHHS made a request for evaluation pursuant to the Interstate Compact on Placement of Children (Fam. Code, § 7900 et seq.), but Nevada would not act because the minor was not a dependent child.
C
At the contested section 388 hearing in March 2009, family reunification social worker Carmen Aguilar testified as follows:
At one of their first meetings, Aguilar and appellant talked about the incident with Rusu and M.C. After initially saying she could not believe that Rusu would hurt her child, appellant later admitted she believed that Rusu injured M.C. by shaking him. One reason she believed this was that Rusu refused to take a polygraph test.
Appellant had ended her relationship with Rusu and obtained a temporary restraining order against him. The minor appeared to be bonded with appellant, was comfortable in the home, and seemed to communicate well with her.
Concluding that appellant did not need services, Aguilar recommended reunifying appellant and the minor based on appellant’s consistent visitation with the child, the therapist’s report in J.C.’s case, documentation from supervised visits, and observations of three visits between appellant and J.C. Aguilar stated that, at the next hearing in J.C.’s case, she would recommend terminating that dependency.
Appellant testified as follows:
She had ended her relationship with Rusu because, “He did it once to my other children. It was a danger to have any of my other children around him.” During counseling, appellant recognized her mistake in allowing Rusu to be alone with her baby. Although Rusu claimed the baby had a seizure, he refused to take a polygraph test. And doctors said there was no way her baby would have been injured without having been shaken. Thus, appellant came to realize that Rusu harmed the baby.
Appellant said she had learned how to protect her children from the people around her. She identified drug addiction, gang affiliation, anger, and violence as risk factors. It was her mistake not to have seen those signs in Rusu.
She had last seen Rusu around November 15, 2008, when he asked about seeing his baby before moving out of town. This led to an incident where Rusu was arrested. Appellant moved to Nevada in order to get away from Rusu and be with her family. She was living with her brother, and claimed there was a job waiting for her but her car was inoperable.
According to appellant, the minor had dental problems while in the grandparents’ care, but she did not discuss this with them because she did not talk to them very much. Appellant claimed that all the other children in the grandparents’ household dressed better than the minor, who was “always wearing like shoes they get from the Goodwill and -- instead of nice stuff.”
Appellant related three incidents where she allegedly found lice on the minor. The first time she informed the grandparents, who said they would deal with it; but she took care of it herself the other two times. In appellant’s words: “It’s pointless talking to them. Like I’ve given up talking to them about stuff.” Appellant later said she brought up the lice only after the last incident. Asked why she did not mention the lice earlier, appellant did not know.
According to appellant, she and the minor talked on the phone three to four times a week, and she visited the minor almost every weekend in 2008, with numerous other shorter visits.
Appellant believed the minor would be hurt emotionally if not returned to her custody. In her view, the minor would not be harmed by removal from his grandparents’ care because “[t]hey could see him whenever they want. I’m not going to keep him from them.”
Social worker Kristi Adams testified as follows:
Adams’s only direct contact with the minor was a 20-minute to 30-minute interview. Adams and appellant discussed how the minor was doing in school, his current placement, and appellant’s plans in terms of education, medical care, and dental care if she were reunified with the minor. Adams saw appellant with J.C. at her Sacramento home, which was neat and clean, had plenty of good food, and a place to sleep. Adams found out that reunification with J.C. was going well and talked to appellant about the services that she received in Sacramento County.
Adams did not investigate the lice allegations because she had no jurisdiction over the minor, who was not a dependent. Although appellant claimed that the minor showed up in “ragged or substandard” clothes, he was dressed appropriately when Adams interviewed him.
Adams had not met those with whom appellant lived in Nevada, had not visited appellant’s Nevada residence, and had not even asked about what school the minor would attend if placed with appellant. Appellant did not provide any documentation about the alleged job, and Adams never investigated the claim, only learning about the alleged job a week prior to the hearing.
D
The juvenile court made extensive findings as follows:
The paternal grandparents, as guardians of the minor, wanted “what is best for [him], never once talking about what they wanted, ” instead “merely asking the Court to consider the evidence.”
Appellant, on the other hand, talked only about herself and was “incredibly narcicisstic [sic] in her view of life. That life is all about [appellant]. And unless or until she is able to modify that view of parenting, she’s not going to be appropriately equipped to parent [the minor].”
Appellant was “not only incredibly immature and self-centered, ” she was “not a credible and believable witness.”
For example, her allegations about lice lacked credibility for two reasons. First, DHHS had contact with schools and other providers, yet there was “absolutely no evidence or indication that lice existed”--“other than [appellant’s] self-serving testimony.” Second, appellant’s claim of lice was beyond belief because, after purportedly learning her child repeatedly suffered from lice while with the grandparents, appellant “sent him back” to their home where, according to her, he was at risk of getting lice, yet she took “no steps to alert [them] to the situation, thus ensuring that [the minor] would continue to be subjected to lice.” Based upon what it had seen in this case, the court concluded that, if the allegations of lice were really true, appellant “would have taken glee in pointing out to [the grandparents] that [the minor] had lice.”
The court also questioned the credibility of appellant’s claim that “she never left her children alone with Mr. Rusu except for when she was in the shower [when M.C. was injured].” The court noted that the critical injury to M.C. “evolved shortly after [appellant] was released from incarceration. She was in county jail. So I’m not sure who[m] her children were left with at that point in time, but I think it would be difficult for her to make such a claim that she never left her children alone with Mr. Rusu [who had been living with appellant and the children] if she was incarcerated and, therefore, not around to know who, in fact, was around her children.”
As another example of her lack of credibility, the court cited the fact that appellant wrongly blamed her attorney for the delay in seeking a restraining order against Rusu. This, the court concluded, “demonstrate[d], again, [appellant’s] unwillingness to be responsible and act like a grown up and her lack of credibility” in providing answers to questions posed at the hearing.
The court also found that appellant’s answers regarding her visitation “were so vague that she effectively refused to be cross-examined [on] those evasive answers, ” thus causing the court to be unable to determine whether appellant carried her burden of showing not only a change of circumstances but also that returning the minor to appellant’s custody would be in the best interests of the child. Among other things, she failed to explain “what was so compelling that [she] had to pick up and move out of this state while this [section 388] petition and this trial were pending such that she has not been in a position to visit with [the minor].”
In addition, appellant’s testimony demonstrated that she lacked insight regarding the minor’s best interests, as illustrated by the following:
Appellant insisted the minor “would not be hurt at all -- in no way would [he] suffer any harm if he were picked up and removed not only from the home of his grandparents, who have cared from him for years, but [also] moved out of state away from his family, away from his friends, away from his father....”
And, although she claimed to have learned from her services, appellant was “insistent” that Rusu had shown no “warning signs” regarding his threat to the children’s safety. She continued to take that position despite the decision of this court rejecting her appellate challenge to the jurisdictional findings. In the words of the juvenile court, appellant had “the benefit of what many [other] mothers don’t, and that is a decision from the [Court of Appeal, Third Appellate District, which included] a summarization of the testimony that [appellant] opined that the doctors who indicated [M.C.] has Shaken Baby Syndrome were just dumb.” Those facts showed appellant continued to claim that she did not know Rusu was a danger to her children despite the fact that (1) after noticing “bruising, a black eye and a missing tooth on his son, ” the minor’s father “told [appellant] what he saw” but “she only got upset with [the father]”; (2) the paternal grandmother “also noticed bruises on [the minor’s] body when he visited”; (3) at the jurisdiction hearing, the judicial officer “declined to accept [appellant’s] explanation for the black eye and the missing tooth”; and (4) “[t]he appellate court opined that [appellant’s] inability or unwillingness to recognize and address the abuse of her son [was] evidence of her inability to protect her children from domestic violence.”
At the section 388 hearing, appellant “still seem[ed] to be lacking in an understanding as to what she should have seen and what she did or did not do that led to her role in allowing [the minor] to be a victim of violence in the family household.” This led the juvenile court to conclude that (1) while appellant made “some level of progress in terms of her individual counseling, ” her lack of insight regarding Rusu’s threat to the children indicated “some ongoing level of risk” to the minor if he were returned to her custody, and (2) there was “no indication that [the minor] ha[d] re-established any sort of relationship with [appellant] where he will be able to trust that she will take care if him.”
Given appellant’s “unresolved issues, ” the juvenile court found that it would be “extremely detrimental” to the minor to place him with appellant in Nevada without any services because jurisdiction would have to be terminated to do so.
Rejecting DHHS’s recommendation to the contrary, the court found the testimony of social worker Carmen Aguilar was not credible. She cried on the stand and had to collect herself when questioned about whether appellant took responsibility for what had happened. “[T]hat’s certainly not what the Court would expect from a professional, detached, neutral arm of the Court....”
The court further explained it disagreed with DHHS’s view that appellant “is very differently situated” than when the minor and M.C. were injured while in appellant’s custody. The court found that, although appellant had made progress, her testimony revealed she had “very far to go in terms of being willing to put” the “needs of the children” above her own “needs and desires.”
The court also found that DHHS’s assessment failed to address “what the impact would be if [the minor] was moved out of state and thus lost [his] relationship with his father” and grandparents. Noting that appellant had “thinly-veiled disdain” for the paternal grandparents, despite that fact that they had not attempted in any way to undermine appellant’s relationship with the minor, the court found the record was “very clear” that, if the minor were placed with appellant in Nevada, there would “be absolutely no visitation between [the minor] and his paternal relatives, probably including his father.”
For all the reasons stated above, the juvenile court found that appellant had failed to establish it would be in the minor’s best interests to return him to appellant’s custody. Thus, the court denied the section 388 petition, ordered that the minor would remain under guardianship with his paternal grandparents, and declined to modify any of the court’s prior orders.
DISCUSSION
I
Appellant contends the juvenile court’s factual findings are not supported by the record, demonstrating the court was “biased” against appellant and denied her a fair hearing. County Counsel, on behalf of DHHS, joins in appellant’s claim of bias, as well as her other claims of error. Thus, for simplicity, we will generally refer to them collectively as appellant, except in factual contexts when appellant refers to the minor’s mother.
“Disparaging the trial judge is a tactic that is not taken lightly by a reviewing court. Counsel better make sure he or she has the facts right before venturing into such dangerous territory because it is contemptuous for an attorney to make the unsupported assertion that the judge was ‘act[ing] out of bias toward a party.’ [Citation.]” (In re S.C. (2006) 138 Cal.App.4th 396, 422.)
As we will explain, appellant’s challenges to the juvenile court’s findings either mischaracterize or distort the court’s comments, or otherwise fail to show any error; and the record does not support appellant’s claim that the court was biased against her.
Thus, it is surprising that the County of Sacramento, Office of County Counsel, which represents DHHS on appeal, “respectfully requests to join in the AOB [appellant’s opening brief] of appellant-mother” and “has no additional briefing to present.”
That DHHS does not contest appellant’s substantial evidence challenges to the juvenile court’s findings is not surprising; after all, DHHS “was aligned with the position of appellant-mother” in the juvenile court proceeding. What is surprising, indeed shocking to us, is that County Counsel, on behalf of DHHS, joined in appellant’s assertion that the juvenile court’s rulings demonstrate the court was “biased” against appellant and, thus, deprived her of a fair trial.
That DHHS and County Counsel, who regularly appear before the juvenile court, have joined in a frivolous and contemptuous claim of judicial bias makes us wonder whether they even read the portion of appellant’s brief that accuses the juvenile court of bias.
With this observation, we turn to the arguments and explain why they lack merit and why the claim of bias is frivolous.
A
Appellant’s accusation of judicial bias is based on her claim that the juvenile court erred in making critical factual findings against her. However, “expressions of opinion by a trial judge based on actual observation of the witnesses and evidence in the courtroom do not demonstrate a bias. [Citations.] Moreover, a trial court’s numerous rulings against a party--even [if] erroneous--do not [alone] establish a charge of judicial bias....” (People v. Guerra (2006) 37 Cal.4th 1067, 1111-1112, disapproved on another point in People v. Rundle (2008) 43 Cal.4th 76, 151.) Opinions formed by a trial judge on the basis of facts introduced or events occurring in the course of the current proceedings do not support a claim of bias “unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.” (Liteky v. United States (1994) 510 U.S. 540, 555 [127 L.Ed.2d 474, 491].)
Appellant’s counsel, and County Counsel on behalf of DHHS who join in her claim of judicial bias, do not even cite this test; appellant simply asserts: “The fact that the court consistently misconstrued and mischaracterized the evidence against [appellant] and in favor of the guardians suggests that the trial court was biased and that, as a result, [appellant] was denied her constitutional rights to a fair hearing.”
As our analysis in part IB will show, appellant’s premise, with which DHHS and County Counsel join, is wrong. The juvenile court did not misconstrue or mischaracterize the evidence, and its factual findings do not in any way suggest, much less display, a deep-seated favoritism or antagonism that would make a fair judgment impossible. Simply stated, the court’s comments and findings do not demonstrate any judicial bias.
Indeed, it is appellant, DHHS, and County Counsel who fail to dispassionately evaluate the record and recognize that the juvenile court’s findings are supported by substantial evidence and the court’s assessment that appellant’s testimony lacked credibility. Instead, they view the record only in the light most favorable to appellant, in violation of the applicable standard of review that she, DHHS, County Counsel, and we must apply.
We conclude that, correctly applying the substantial evidence standard of review, and recognizing what it takes to prevail on a claim of judicial bias, “any reasonable attorney would agree [appellant’s, DHHS’s, and County Counsel’s shared claim of judicial bias] is totally and completely without merit, ” i.e., it “indisputably has no merit” and thus is frivolous. (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650.)
B
Appellant’s assertion that the juvenile court’s findings are not supported by the evidence are reviewed under the substantial evidence test.
This standard of appellate review “is a difficult hurdle for an appellant.” (D.M. v. Superior Court (2009) 173 Cal.App.4th 1117, 1128.) Substantial evidence is evidence that is “reasonable, credible and of solid value from which a rational trier of fact could [have made the findings challenged on appeal].” (People v. Wader (1993) 5 Cal.4th 610, 640.) In determining whether substantial evidence supports the juvenile court’s findings, we consider the record in the light most favorable to the findings and draw all reasonable inferences in support of them. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) In doing so, we do not evaluate the credibility of the witnesses (a task reserved to the juvenile court), do not reweigh the evidence, and do not resolve conflicts in the evidence. (D.M. v. Superior Court, supra, 173 Cal.App.4th at p.1128; In re L.Y.L., supra, 101 Cal.App.4th at p. 947.) “If there is any substantial evidence, contradicted or uncontradicted, which will support the judgment, we must affirm.” (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.)
Appellant begins by arguing “there was insufficient evidence that [she] was ‘narcissistic, ’ and even if there was such evidence, ‘narcissism’ in a parent is insufficient reason to deny a section 388 petition.” We are not persuaded.
Specifically, the court made a factual finding that, compared to the paternal grandparents/guardians of the minor, who wanted “what is best for [the minor], never once talking about what they wanted, ” appellant was “incredibly narcicisstic [sic] in her view of life. That life is all about [appellant]. And unless or until she is able to modify that view of parenting, she’s not going to be appropriately equipped to parent [the minor].”
In appellant’s view, this finding is unsupported by the evidence because “[t]here was no expert testimony on the question of whether [appellant] has a narcissistic personality disorder” and “no evidence that the court had the ability to independently make” what appellant perceives to be a medical diagnosis. She misses the point. The court did not purport to make a diagnosis that appellant had a mental disorder in the medical sense; the court simply used the commonly understood term “narcissistic” to describe appellant’s pattern of self-centered behavior that put her own interests and desires ahead of the best interests of the minor.
Ample evidence supports the court’s finding. For example, appellant demanded to see the minor on Christmas simply because, in her words, “it was Christmas, and I wanted to spend time with my son on Christmas, ” regardless of what the minor wanted to do. Appellant argues that, if wanting to spend Christmas with one’s son is “narcissistic, immature, and self-centered... then the definition of narcissism and self-centeredness includes every parent who has ever loved a child.” Again, she misses the point. Of course, every parent would want to spend such a holiday with her or his child, but a responsible and mature parent would not demand to do so if the child did not want to be with the parent for good reason or if sharing such time would pose a risk to the child. Here, appellant demanded to have the minor on Christmas regardless of the minor’s desire. That is self-centered behavior as noted by the court.
A more egregious example of appellant’s narcissistic nature was that, despite substantial evidence that her live-in boyfriend, Rusu, seriously injured M.C. and hit the minor, and even though the minor’s father told appellant that Rusu was hitting her children, appellant initially refused to believe Rusu harmed them. Indeed, she continued to allow him to live in her home, even delaying obtaining a restraining order against him when she no longer could insist that he was innocent of child abuse. This action in putting her personal interest in maintaining a romantic relationship with Rusu, despite his abuse of her children, is a classic example of narcissism in putting a parent’s desires ahead of her children’s best interests.
The juvenile court did not err in finding that “unless or until [appellant] is able to modify that [narcissistic] view of parenting, she’s not going to be appropriately equipped to parent [the minor].”
Next, appellant contends there was insufficient evidence that she was “‘incredibly immature’ or self-centered.” Again, we disagree.
Our conclusion that substantial evidence supports the finding of narcissism disposes of appellant’s challenge to the finding she was self-centered, which is simply another way of describing appellant’s narcissism.
And ample evidence supports the juvenile court’s finding that appellant was “incredibly immature.”
For example, the juvenile court noted that, rather than “thank[ the minor’s] grandparents for providing care for her son, for providing him with a safe and stable home, ” appellant displayed “thinly-veiled disdain” for them. In addition, the finding of immaturity may well have been based in part on appellant’s demeanor while testifying.
Appellant protests it is “‘Kafkaesque’ to expect a parent to feel gratitude to the caretakers who [were] preventing her from visiting her son on the grounds that the caretakers had not sought to terminate her parental rights.” But this ignores the grandparents’ statement that, if the court found appellant could care for him, the minor should stay with her, and they would respect such an outcome. And her protestation overlooks evidence that her thinly-veiled disdain for the grandparents caused her to falsely accuse them of subjecting the minor to lice.
Having heard all the evidence and observed appellant’s demeanor, the juvenile court was in the position to assess appellant’s maturity (see Snyder v. Louisiana (2008) 552 U.S. 472, ___ [170 L.Ed.2d 175, 181), and could conclude that appellant was immature and that her immaturity adversely affected her ability to adequately parent the minor.
Appellant points to evidence that could have supported a contrary finding. But it does not assist her because we do not evaluate the credibility of the witnesses, do not reweigh the evidence, and do not resolve conflicts in the evidence. (D.M. v. Superior Court, supra, 173 Cal.App.4th at p.1128; In re L.Y.L., supra, 101 Cal.App.4th at p. 947.)
Contrary to appellant’s claim, the juvenile court’s findings that she was narcissistic and immature are a basis upon which to deny her section 388 petition. As we have noted, those traits can adversely affect a person’s ability to adequately parent a child. And the court found they did so in this case. Moreover, other evidence supported a finding that appellant had failed to carry her burden of establishing it would be in the minor’s best interests to place him with appellant in Nevada. (In re Casey D. (1999) 70 Cal.App.4th 38, 48 [the party seeking change in placement pursuant to section 388 has “the burden of showing not only changed circumstances but that a change in the child’s placement would be in the best interests of the child”].)
The juvenile court found “there’s no indication that [the minor] has re-established any sort of relationship with his mother where he will be able to trust that she will take care of him.”
Appellant claims this finding is contradicted by her consistent, positive visits with the minor and his desire for a close relationship with her. However, appellant misunderstands the court’s statement, which addresses its concern whether the minor could trust appellant to protect him.
In light of (1) appellant’s failure to immediately recognize that Rusu displayed danger signs of child abuse, (2) appellant’s ignoring or disbelieving the minor’s report that Rusu hit her children prior to the serious injury to ten-month-old M.C., (3) appellant’s narcissism and immaturity that put her needs and desires ahead of those of her children, such that she continued to maintain her relationship with Rusu despite ample evidence that he had harmed her children, (4) appellant’s cessation of visitation with the minor and her move to Nevada while the section 388 proceeding was pending, thereby precluding visitation, and (5) the negative assessment of appellant’s credibility, the court reasonably could find that appellant failed to demonstrate she had reestablished a relationship with the minor that would allow him to trust her ability to adequately and safely take care of him if he were placed in her custody in Nevada.
The juvenile court found appellant failed to show “what was so compelling that [she] had to pick up and move out of this state while this petition and this trial were pending such that she has not been in a position to visit with [the minor].”
Appellant disagrees, pointing to her testimony that she wanted to make sure she was far away from Rusu and that, in Nevada, she would be able to make a home for her children with the help of relatives. But having found that appellant was not a credible witness, the court reasonably could conclude she failed to show it was necessary for her to move before completion of the section 388 proceeding, particularly when doing so deprived the minor of the opportunity to visit with her.
Appellant also challenges the court’s finding that appellant had not visited the minor during the 90 days prior to the hearing and “the reason for that is because she left [for Nevada].” She says this is wrong because the visitation actually stopped before she left for Nevada and that it did so as a result of the guardians denying her visitation. Thus, she argues, “given the fact that the visits had been stopped prior to her move to Nevada, the move to Nevada simply cannot be found to be the reason the visits stopped.”
There are two flaws in appellant’s argument. First, the court did not find that the visitation stopped because of appellant’s move to Nevada. Rather, at the hearing, the court found that appellant “had no visits with [the minor] in the last 90 days, ” which was an accurate observation, and also said “the reason for that is because she left” for Nevada, thus “she has not been in a position to visit with [the minor], ” also an accurate observation. Second, her claim that the visitation stopped because the guardians refused to allow her to see the minor was disputed by the guardians, and the court found that appellant was not a credible witness.
The paternal grandfather stated: “Your Honor, we have never prohibited the visits. On the other hand, I have taken the child to [appellant’s] house so that they can have a reunion. And I have given him permission so he can go out with her. Perhaps, [appellant] is saying that because [at] the court hearing in June [she was told] that the visits had to be under supervision, and perhaps she doesn’t like that....” The juvenile court then asked: “What [appellant] is saying to me is that since September 17th [90 days before the hearing, ] you haven’t allowed any visits.” The paternal grandfather replied: “We have never prohibited it.” The paternal grandmother added: “[W]e gave [appellant] permission [to] take [the minor for] two to three days. And my husband and I we have given him a ride to her house so that she could [visit] him. What happens is that she wants to have the child for like a week or two weeks, and I need to follow the Court’s orders.”
The juvenile court found there was “absolutely no indication in front of me that the grandparents have in any way attempted to undermine [appellant’s] relationship with the minor[.]”
Appellant disagrees, citing her testimony that the grandparents interfered with her effort to visit the minor. However, as we have just noted, the grandparents disputed appellant’s assertion, and the court found that appellant was not a credible witness. Therefore, the record supports the court’s finding that there was no credible evidence that the grandparents attempted to undermine appellant’s relationship with the minor.
As we have recounted above, the juvenile court questioned the credibility of appellant’s claim that “she never left her children alone with Mr. Rusu except for when she was in the shower [when M.C. was injured].” The court explained that the critical injury to M.C. “evolved shortly after [appellant] was released from incarceration. She was in county jail. So I’m not sure who[m] her children were left with at that point in time, but I think it would be difficult for her to make such a claim that she never left her children alone with Mr. Rusu [who had been living with appellant and the children] if she was incarcerated and, therefore, not around to know who, in fact, was around her children.”
Appellant argues there was no evidence to support what she characterizes as the court’s “speculation that [appellant] had left her children with [her] boyfriend [Rusu] when she was incarcerated, so therefore, she lied when she said she only left her children with him when she took a shower.” According to appellant, “the court confused the dependency petition filed in 2003, which was dismissed shortly afterward, with the dependency petition resulting in the removal of [appellant’s] children. The confusion led the court to mix the details and from this, conclude unfairly that [she] must have been lying. Thus the court’s conjecture that [appellant] could not have known who[m] her children were with while [she was] incarcerated... was based on a misreading of the record.”
However, it is appellant who misreads the record. M.C. was brought to the emergency room due to his seizures on March 19, 2005. At that time, appellant said she had been out of jail for a few days. M.C. was discharged the next day but was then brought back to the emergency room at midnight with the severe head injuries that led to the current dependency case. This evidence supports the juvenile court’s observation that the critical injury to M.C. “evolved” soon after appellant was released from jail, and supports a reasonable inference that, while appellant was in custody, she left her children with her live-in boyfriend, Rusu.
In determining that it would not be in the best interests of the minor to place him in appellant’s custody in Nevada, the court found that the minor had been “having nearly daily contact with his father” and “no one at all ha[d] addressed whether or not that situation continues to exist and what the impact would be if [the minor] was moved out of state and thus lost that relationship with his father.”
Saying the court’s statement is a “peculiar misreading of the record, ” appellant argues the daily contact had occurred three years before and there was nothing in the record to support a finding that the minor “presently had any sort of relationship with [h]is father.” Thus, the “court’s conjecture that [the minor] had daily visits with his father, or a relationship with his father worth preserving[, ] was not supported by the evidence.”
Once again, appellant mischaracterizes what the juvenile court said. The court observed that DHHS initially determined terminating parental rights would be detrimental “because [the minor] was having nearly daily contact with his father.” The court did not, as appellant suggests, make a finding that this relationship was continuing. Rather, the court pointed out that the parties had failed to address whether the relationship continued to exist and, if so, whether the minor would be harmed if the relationship had continued but would be “lost” if the minor were placed out of state.
This was a legitimate observation by the juvenile court and an example of why the court concluded that appellant had failed to carry her burden of showing that placing the minor with her in Nevada would be in the minor’s best interests.
Appellant also challenges the court’s statement: “I heard the guardians time and time and time again talk about what is best for [the minor], never once talking about what they wanted, what they desired or quite honestly even what they believed was best for the child, merely asking the Court to consider the evidence.”
She contends this statement is not supported by the record because the paternal grandparents spoke but a few times at the hearing and, in appellant’s view, their comments did not indicate that they “were concerned only with [the minor’s] best interests.”
It is true that the paternal grandparents spoke only a few times, but their position was clear; as expressed by the grandmother, they simply asked the court to “[k]eep in mind what’s best for the [minor]” and to “[j]ust... make the best decision.” And the court had before it a report reflecting the paternal grandparents had told DHHS that, if appellant “was able to care” for the minor, “he should be home with her, ” and they “would respect the Court’s decision no matter what it was in the end.”
All of this supports the court’s observation that the paternal grandparents had repeatedly indicated they were concerned only with the minor’s best interests, whereas appellant was concerned only with her own interests.
Appellant asserts that her aforesaid “list of statements made by the [juvenile] court which mis[s]tated or mischaracterized the evidence [is] not exhaustive”; briefly, and in no detail, she then identifies three other findings by the court that appellant believes “misstated the facts.”
Because the points are asserted without any meaningful argument, we deem them to be without foundation and, thus, we need not address them. (Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647.) Nevertheless, we conclude there is no merit in appellant’s attacks on those three findings. The juvenile court’s observation regarding appellant’s vague testimony about visitation is a fair assessment of the testimony; and, in light of the court’s justifiable finding that appellant had thinly-veiled disdain for the paternal grandparents and had made false accusations against them, the court reasonably found that, if the minor were placed with her in Nevada, appellant would not allow any visitation with the paternal grandparents. As for the third finding, appellant’s citations to the record do not support her claim that the court “misstated the facts when it said that the grandparents requested guardianship to give both parents a chance to reunify.” Indeed, that is not what the court said; instead, the court noted: “The record in this case reflects not that the grandparents declined to adopt [the minor] believing that reunification would occur with either parent.” (Italics added.) The court then went on to say appellant and DHHS had failed to address whether the relationship the minor once had with his father “continue[d] to exist” and, if so, “what the impact would be if [the minor] was moved out of state and thus lost that relationship with his father.” The court also noted the detriment to the minor that would occur if placement were changed--namely, that appellant would cut off the minor from any visitation with the parental grandparents and probably his father, too.
There was no error.
C
We end this part of our opinion with the following observations:
It is one thing for appellant, DHHS, and County Counsel to disagree with the juvenile court’s factual findings and argue they are not supported by substantial evidence. We cannot fault them for having done so, even though we have concluded the arguments lack merit.
It is a far different thing to assert, as they do, that the juvenile court’s findings demonstrate the court was biased against appellant. We do fault appellate counsel for raising this contention, and fault DHHS and County Counsel for having joined in the contention. As we have explained, any reasonable attorney correctly applying the substantial evidence standard of review, and recognizing what it takes to prevail on a claim of judicial bias, would agree that appellant’s claim of judicial bias “is totally and completely without merit, ” i.e., frivolous. (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650.)
II
Appellant, and County Counsel on behalf of DHHS, contend that the juvenile court “abused its discretion in entirely dismissing [DHHS’s] recommendation upon observing that one of the social workers appeared to have too much empathy for [appellant] and was therefore unprofessional and not detached and neutral.”
Once again, they distort the juvenile court’s findings. The court did not reject DHHS’s recommendation solely on the ground that social worker Carmen Aguilar cried on the witness stand and had to collect herself when questioned about whether appellant had taken responsibility for her boyfriend’s physical abuse of her children. Rather, having considered all the evidence and made credibility assessments, the court was entitled to be unpersuaded by Aguilar’s view of the case--namely, that there would be no detriment to the minor if he were placed with appellant in Nevada, far away from his paternal grandparents, who had a close and loving relationship with him and undoubtedly would be denied visitation with the minor due to appellant’s disdain for them.
Indeed, Aguilar’s opinion testimony was not the only evidence that could have led the juvenile court to discount DHHS’s position. Cross-examination of social worker Kristi Adams, who also opined that the minor should be placed with appellant, revealed that Adams had discussed the case with the minor only once and for only about 20 to 30 minutes; Adams never investigated appellant’s accusations that the minor repeatedly had lice while in the custody of his paternal grandparents and that they dressed him in shabby clothing; Adams had not visited appellant’s residence in Reno and had not met the people with whom appellant was living there; Adams had not even asked about what school the minor would attend if he were placed with appellant in Nevada; Adams did not check into and verify appellant’s claim that she had a job waiting for her in Nevada; and DHHS’s section 388 report did not include any of the reports regarding J.C.’s dependency.
Under the circumstances, the juvenile court reasonably could conclude that DHHS had not been particularly helpful in this case.
III
We also reject the contention raised by appellant, in which County Counsel on behalf of DHHS join, that the evidence “showed changed circumstances and that [the minor’s] best interests would be met by granting the [section 388] petition”; thus, the juvenile court “abused its discretion in denying [the] petition.”
Section 388 permits the modification of a dependency order only if there has been a change of circumstance or new evidence and if the proposed modification is in the best interests of the minor. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.) As the party seeking the modification, appellant had the burden of proof on both elements. (In re Casey D., supra, 70 Cal.App.4th at p. 48.) In assessing the child’s best interests, the juvenile court looks to the child’s needs for permanence and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Whether there should be a modification of placement “is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion.” (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
As we have discussed above, having examined all the evidence and assessed its credibility, the juvenile court reasonably could find appellant failed to prove that it would have been in the minor’s best interests to have removed him from his paternal grandparents’ custody and placed him with appellant in Nevada.
That the nine-year-old minor had said he wanted to live with appellant was not binding on the juvenile court; indeed, at the section 388 hearing, the minor--through his counsel [Christie Giusti]--took the position that placement with appellant would not be in the minor’s best interests. The minor’s counsel explained that the minor thought living with appellant (even though he had not been in her custody for four years) “sounds really fun and great [compared to] living with grandparents who are older”; however, (1) there was insufficient evidence to show that appellant had adequately addressed the abuse issues which led to juvenile court intervention, (2) the evidence did not show that there was “stability” in appellant’s current living situation, and (3) there was no credible evidence that removing the minor from “a stable situation [with his paternal grandparents], putting him two hours away from his grandparents, parental family members and his father, and putting him [in] an unknown situation” would be in the minor’s best interests.
Contrary to appellant’s claim on appeal, the fact that the minor had refused to go to the dentist while in the grandparents’ custody does not “demonstrate[] that it was an abuse of discretion not to place [the minor] with [appellant].” Such a contention ignores the other substantial evidence that supports the juvenile court’s ruling.
We also disagree with the claim that the “factors set forth in In re Kimberly F.[, supra, 56 Cal.App.4th 519]” compel a conclusion that the juvenile court abused its discretion in denying appellant’s section 388 motion.
That decision warned against a juvenile court simply comparing the situation of the biological parent with that of a caregiver in determining a section 388 petition, a “‘simple best interest test.’” (In re Kimberly F., supra, 56 Cal.App.4th at p. 529.) Instead, the court must evaluate a number of factors, including the seriousness of the reason for the dependency action, the existing bond between the parent and child and the caregiver and child, and the nature of the changed circumstances. (Id. at pp. 529, 532.)
Unlike in that case, the court’s ruling here was not based solely on a rationale that appellant was narcissistic and thus not as capable of caring for the child as were the caregivers. (In re Kimberly F., supra, 56 Cal.App.4th at pp. 532-535.) The situation leading to juvenile court intervention was not, as appellant claims, a “one-time tragedy from which [appellant] was able to learn her lesson.” The evidence supports a conclusion that she was aware her live-in boyfriend was harming her children and did not do anything about it until after her ten-month-old son, M.C., was seriously injured. The evidence supports a finding that the bond between appellant and the minor was not as strong as appellant describes it on appeal. And the evidence supports a conclusion that removing the minor from the custody of his paternal grandparents and placing him with appellant in Nevada would not have been, as she puts it, an “easy change to bring about, requiring no additional services.”
For all the reasons stated in this opinion, the juvenile court did not abuse its discretion in finding that appellant had failed to prove that placing the minor with her in Nevada would be in the minor’s best interests.
IV
At a December 2008 hearing, appellant’s counsel asked the juvenile court for a “visitation order” because appellant claimed the grandparents had been denying her any visitation with the minor. The court noted that the grandparents could not stop all visitation under the current order, and that there was no reason to change the visitation order because “[t]he only pending petition is to terminate the guardianship.”
Appellant, and County Counsel on behalf of DHHS, contend the court abused its discretion by failing to modify the visitation orders to ensure that appellant could visit the minor. However, they fail not only to set forth the existing visitation order, but also to explain why the order is insufficient. As the juvenile court noted, the existing order does not permit the grandparents to deprive appellant of visitation, and the court found appellant’s claim that they were doing so was not credible.
If appellant has credible evidence that the paternal grandparents are violating the existing visitation order, she can file a new section 388 petition. (In re Elaine E. (1990) 221 Cal.App.3d 809, 815; Cal. Rules of Court, rules 5.620(c), 5.740(c).)
DISPOSITION
The order denying appellant’s section 388 petition is affirmed.
We concur: NICHOLSON, J. ROBIE, J.