Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK53816, Valerie Skeba, Juvenile Court Referee. Affirmed.
Anna L. Ollinger, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, County Counsel, James M. Owens, Assistant County Counsel and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
MANELLA, J.
Appellant S.S. (Mother) has four daughters: Tiffani M., born in 2001, Harmony F., born in 2003, Leila F., born in 2005 and Cherish S., born in 2006. Jose M. is the father of Tiffani. Albert F. is the father of Harmony and the alleged father of Leila. This is the third time this case has been before us. In the first proceeding, Mother and Albert appealed the court’s 2007 jurisdictional and dispositional orders, including an order that denied appellants reunification services with respect to Tiffani and Harmony. In the second proceeding, Mother and Albert joined in appealing the court’s June 2008 order terminating parental rights over Harmony, and Albert sought review of the court’s denial of his June 2008 petition for modification. In the current proceeding, Mother appeals the court order denying her October 2008 petition for modification. We affirm the court’s order.
We elect to refer to the parties by their first name and last initial. (See In re Edward S. (2009) 173 Cal.App.4th 387, 392, fn.1.)
The identify of Cherish’s father has never been ascertained.
By opinion dated November 18, 2008, we affirmed the juvenile court’s jurisdictional and dispositional orders.
By opinion dated May 12, 2009, we affirmed the court’s orders.
FACTUAL AND PROCEDURAL BACKGROUND
A. Underlying Facts
The family came to the attention of the Department of Children and Family Services (DCFS) six years ago, in October 2003, when Tiffani was two and Harmony was an infant (prior to births of Leila and Cherish). In 2004, the court sustained a jurisdictional petition alleging that Mother had excessively disciplined Tiffani, that Tiffani had been exposed to a violent altercation between Jose and Albert, and that Albert had an unresolved history of domestic violence. Mother underwent counseling and completed an anger management program and in May 2005, regained custody of Tiffani and Harmony.
Albert, who had initially been given custody of Harmony, left her with his mother and ceased communication with DCFS. He completed no part of his reunification program, which included parent education, anger management classes and individual counseling.
In March 2006, before jurisdiction could be formally terminated, Jose informed the caseworker that Tiffani reported having been touched inappropriately by Albert. Tiffani was interviewed by the caseworker and reported that she had been digitally penetrated by Albert “a lot of times” and that Albert had also inappropriately touched Harmony and Leila. Tiffani was examined by a nurse, who observed jagged hymenal tissue and concluded that Tiffani’s physical condition supported her report. DCFS filed a supplemental petition seeking to remove Tiffani and Harmony from Mother’s custody and new petitions seeking jurisdiction over Leila and Cherish. The petitions alleged sexual abuse and failure to protect. The four girls were detained. Harmony, Leila and Cherish were placed together in a single foster home.
Jose could not pinpoint when the inappropriate touching occurred. He first heard that Tiffani had reported it to his wife, but waited to call the caseworker until Tiffani told him directly.
In July 2007, Albert was arrested for molesting Tiffani. In 2008, he pled guilty to child endangerment and was released from custody.
As explained in In re Barbara P. (1994) 30 Cal.App.4th 926, 933, a supplemental petition is filed “when a dependent child has been placed with a parent, but the department now seeks to remove the child, effectively requesting the court to modify its previous placement order.”
At the detention hearing, the court ordered DCFS to provide reunification services, including drug testing, drug counseling and sexual abuse counseling for non-offenders for Mother, and sexual abuse and anger management counseling for Albert.
The foster mother subsequently expressed interest in adopting all three girls.
B. Jurisdictional/Dispositional Hearings
At the contested jurisdictional hearing, the court heard the testimony of Tiffani -- then five years old -- who again stated that she and two of her younger sisters had been inappropriately touched by Albert. The court sustained the petitions, finding that Albert had sexually abused Tiffani by digitally penetrating her and that he had also inappropriately touched Harmony and Leila. The court further found that Mother failed to take action to protect the children.
At the September 2007 dispositional hearing, the court denied Mother reunification services with respect to Tiffani and Harmony because DCFS had already provided more than 18 months of services. The court denied Albert reunification services with respect to Harmony under Welfare and Institutions Code section 361.5, subdivision (a), finding that he had been given 12 months of services earlier and that there was no basis to believe an additional six month of effort would result in the girl being released to his custody. The court denied Albert reunification services with respect to Leila because he was the alleged father only. With respect to Leila and Cherish, the court ordered six months of reunification services for Mother. Specifically, the court instructed Mother to attend a DCFS approved program of drug rehabilitation with random testing and “one on one -- intensive counseling” to address sexual abuse. The court instructed DCFS to “consider” a specific program -- CSAP (Child Sexual Abuse Program) -- over the objection of Mother’s counsel, who expressed the belief that CSAP did not provide individual counseling or assist non-offenders. At the close of the dispositional hearing, the court set the six-month review hearing and advised Mother that the purpose of that hearing would be to determine the permanent plan for Leila and Cherish. The court warned Mother: “[I]f you fail in your performance during [the following six months], you can expect that these children are going to be moving into the adoption mode, and you will lose them.”
Statutory references are to the Welfare and Institutions Code.
As we discussed in the first appeal, the court made reference to the sexual abuse finding as an alternative basis for denial of services to Albert. The court’s ruling was appropriate under section 361.5, subdivision (b)(6), which applies where a child has been adjudicated a dependent as result of “severe sexual abuse... to the child, a sibling, or a half[-]sibling” and “the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent....”
CSAP has been described as a “‘specialized sexual abuse treatment program within the Department of Children and Family Services, which treat[s] offenders, non-offending caretakers, siblings, and victims. Its focus is on adult acceptance of responsibility for the dysfunctional relationships within the family that resulted in the child sexual abuse, also on helping the child victim[s] free themselves of guilt and inappropriate [responsibility] for the molestation.’” (Los Angeles County Dept. of Children & Family Services v. Superior Court (2006) 145 Cal.App.4th 692, 696, fn. 2.)
C. Reunification Period
On October 2, 2007, the caseworker met with Mother and “impressed on her that she was allowed 6 months to reunify with Leila and Cherish.” The caseworker gave Mother a list of referrals for programs to address drug rehabilitation and the telephone number for CSAP. The caseworker instructed Mother to begin drug testing with Pacific Toxicology, although Mother expressed a preference for another facility.
In November 2007, Mother reported she was attending Narcotics Anonymous (NA) meetings and was enrolled in one of the drug rehabilitation programs from the DCFS-approved list. Mother stated that CSAP conflicted with the drug rehabilitation program, which met nearly every day, and also said that she had been advised by her attorney not to participate in CSAP because she was not the offender. Mother further reported that sexual abuse counseling was being addressed in her drug counseling program. The caseworker informed Mother that CSAP provided counseling for non-offending parents and “impressed on [her] the need for her to comply with court orders and [the] DCFS case plan.”
In January 2008, the caseworker informed Mother that Pacific Toxicology had reported several missed tests and that missed tests were considered dirty. Mother stated she was testing with the rehabilitation program.
Pacific Toxicology reported a single completed test on October 23. The results were negative.
The March 2008 report prepared for the six-month review hearing stated that Mother claimed to have graduated from the drug rehabilitation program, was visiting the children two or three times monthly and was attending NA meetings. The caseworker questioned whether Mother had “grasped the severity” of the sexual abuse allegations because she had not participated in “intensive counseling to address sexual abuse.” The caseworker reported hearing from a detective involved in Albert’s criminal case that Tiffani had changed her story at a hearing and later said that Mother had told her to lie to protect Albert. The caseworker recommended termination of reunification services because Mother had failed to drug test or to obtain individual counseling to address sexual abuse issues and because “[t]he risk level for abuse and failure to protect remains high for Leila and Cherish.”
On March 28, 2008, the court continued the six-month review hearing for two months because the report was mailed late. In May, the caseworker reported that appellant had completed the drug rehabilitation program except for attending nine support meetings and finding a sponsor. Appellant was being randomly drug-tested at the rehabilitation facility, which reported multiple negative tests and two diluted tests. Sometime between March and May, the caseworker transferred Mother’s formal drug testing site to the site Mother preferred. The new site reported that Mother had missed the one test she was scheduled to complete. The caseworker continued to recommend termination of reunification services because Mother had failed to address the sexual abuse issue with appropriate counseling. The caseworker also expressed concern about Mother’s ongoing relationship with Albert, after being informed that Mother had visited him in prison and had encouraged Tiffani to change her story to protect him.
In June 2008, before the six-month review hearing, Mother filed a section 388 petition. Attached to the petition were two letters from Alyce Bell, Mother’s certified counselor for the drug rehabilitation program. One letter stated that Mother had successfully completed the drug rehabilitation program and was ready for reunification with her children. The other stated that Mother had addressed Tiffani’s sexual abuse during individual counseling sessions and parenting classes. According to the second letter, Mother had learned “that there are different signs... that she has to pay attention to” and that she should “always have [her] awareness alert.” The court summarily denied the petition.
At the six-month review hearing held June 26, 2008, Mother testified that she was attending NA meetings and was on step four or five of the 12-step plan. Mother testified she was employed and had obtained suitable housing. Mother further testified that she did not attend CSAP because its location -- in Monterey Park -- was far from her home and that she had discussed sexual abuse during her individual counseling with Bell. Mother stated she had had no contact with Albert since his arrest and did not intend to have a relationship with him in the future.
After consideration of the evidence and argument of counsel, the court terminated reunification services. In making its ruling, the court stated: “I don’t have a whole lot of confidence that [Mother] has, in fact, stopped using drugs” because of “the missed tests and the dilute[d] tests.” The court further stated that it did not appear that Mother had “a real commitment” to stop using illegal substances because she had been vague in her testimony concerning participation in the 12-step program. With respect to sexual abuse counseling, the court noted inconsistencies in Mother’s explanations for not undergoing CSAP counseling. Having previously informed the caseworker that her attorney advised her not to attend and that it conflicted with the drug rehabilitation program, “[s]he said [in the hearing] it was inconvenient because of the location.” The court stated that the sexual abuse counseling from Bell was insufficient to meet that component of the case plan because Bell was not a licensed therapist or trainee in the field.
The children’s attorney argued in favor of termination.
D. Mother’s Petition for Modification
On October 15, 2008, Mother filed the section 388 petition which is the subject of this appeal. Mother stated that she completed the drug rehabilitation program on April 30, 2008, that in the period following the June hearing she had begun a 12-step program, and that she was “two-thirds of the way through CSAP.” Mother also attached a report from a physician, Dr. Theodore N. Hariton, who had reviewed the medical records from Tiffani’s post-abuse examination. Addressing the question whether the physical findings were consistent with the digital penetration Tiffani described, Dr. Hariton concluded: “With a reasonable degree of medical certainty, there is no medical evidence that digital vaginal penetration occurred as stated in these reports.” Mother sought return of Harmony, Leila and Cherish to her care or, in the alternative, liberalized visitation and additional reunification services. Mother also asked the court to reconsider the jurisdictional finding of sexual abuse in light of the new evidence.
In his June 2008 petition for reconsideration which was the subject of the 2009 appeal, Albert had sought reconsideration of the jurisdictional findings based on the same report.
The court scheduled a December 17, 2008 hearing on the petition. In the meantime, the caseworker prepared the section 366.26 report, and reported that the foster mother who had taken care of Harmony, Leila and Cherish since their detention in 2007 was on course to adopt all three children. The caseworker prepared a separate section 388 report which stated that the caseworker had contacted Mother’s drug rehabilitation program and been unable to confirm Mother’s assertions of participation in a 12-step program. With respect to CSAP, the coordinator reported that Mother had attended a single session and was dropped from the program for failing to attend subsequent sessions. The report also stated that the caseworker had been “reliably informed that [Mother and Albert] still have an intimate relationship.”
At the December 17 hearing on Mother’s petition, the court stated that because it appeared Mother had not addressed the sexual abuse issue, the court could not find a substantial change in circumstances that would justify granting further family reunification services. Mother’s counsel asked the court to “set [the matter] for a contest” so that Mother could prove that she was attending the 12-step program and had attended an additional CSAP session. The court stated that additional information could be asserted in a new section 388 petition and denied that October 15 petition “without prejudice.” Mother appealed.
DISCUSSION
Section 388 provides in pertinent part: “(a) Any parent... may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court... for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court... [¶]... [¶] (d) If it appears that the best interests of the child may be promoted by the proposed change of order... [or] termination of jurisdiction..., the court shall order that a hearing be held....” Section 388 has been described as an “escape mechanism” built into the process to provide the court with a last opportunity to rectify any wrong which might have occurred in removing a child from his or her natural parents and setting the matter for a hearing to terminate parental rights. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) At a hearing on a section 388 petition, the moving party bears the burden of proof by a preponderance of the evidence. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) The juvenile court’s task is to determine whether the moving party has demonstrated that there is new evidence or a change of circumstances demonstrating that it is in the child’s best interests to modify or set aside previous orders. (Ibid.) Whether to grant the petition “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.” (Ibid.) Mother contends that the court abused its discretion in denying her section 388 petition for modification after hearing. We disagree.
A. Modification Based on New Medical Evidence
Mother contends that Dr. Hariton’s medical report required the court to reconsider its jurisdictional finding concerning sexual abuse and its dispositional order requiring Mother to complete sexual abuse counseling. Albert presented the same evidence and made similar contentions in his appeal from the denial of his June 2008 petition for modification. As we stated in our 2009 opinion, “[i]f [Albert’s] evidence were fully credited, it would at best create a conflict concerning whether the physical evidence supported [Tiffani’s] reports of abuse.” (In re T.M. (May 12, 2009, B209106) [nonpub. opn.], opn. at p.13.) The existence of a conflict in the interpretation of the physical evidence did not require a reversal of the court’s jurisdictional finding because “‘[a] child’s testimony alone can support a court’s finding of physical or sexual abuse’” and Dr. Hariton’s report “did nothing to discredit [Tiffani’s] testimony, which was ‘repeated... consistently over the course of being questioned by Jose, [his wife], the caseworker, the examining nurse, the court and the parties’ attorneys.’ Accordingly, the court did not abuse its discretion in denying the petition for modification to the extent it sought to reopen the jurisdictional findings.” (Ibid.; see In re Lucero L. (2000) 22 Cal.4th 1227, 1248-1249; In re Veronica G. (2007) 157 Cal.App.4th 179, 185.) We reach the same conclusion here.
B. Modification Based on New Evidence of Mother’s Compliance
Mother contends that the evidence established a sufficient change in circumstances to warrant further reunification services. The procedures available under section 388 “accommodate the possibility that circumstances may change after the reunification period that may justify a change in a prior reunification order.” (In re Marilyn H., supra, 5 Cal.4th at p. 309.) “The burden... is on the parent to prove changed circumstances pursuant to section 388 to revive the reunification issue.” (Ibid.) In order to obtain additional reunification services, “[t]he parent must show that [] undoing [] the prior order would be in the best interests of the child. [Citation.]” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.)
The court in Kimberly F. explained that “best interests is a complex idea,” and the fact that the parent “makes relatively last-minute (albeit genuine) changes” does not necessarily warrant reopening the reunification period or reconsidering the existing case plan. (In re Kimberly F., supra, 56 Cal.App.4th at p. 530.) Instead, “a number of factors should be examined.” (Ibid.) First, the juvenile courts should consider “the seriousness of the reason for the dependency in the first place.” (Ibid.) A second important factor is “the strength of the existing bond between the parent and child” compared to “the strength of [the] child’s bond to his or her present caretakers, and the length of time a child has been in the dependency system in [relation] to the parental bond....” (Id. at p. 531.) Finally, the court should consider “the nature of the change, the ease by which the change could be brought about, and the reason the change was not made before....” (Ibid.; see also In re Angel B. (2002) 97 Cal.App.4th 454, 463 464 [“Although the specific factors a court must consider [in deciding a petition for modification] vary with each case, each child’s best interests would necessarily involve eliminating the specific factors that required placement outside the parent’s home.”].)
The reason for assertion of jurisdiction here was very serious -- sexual abuse of three girls under the age of five. With respect to the bond between Mother and the children, although her visitation has been consistent and her efforts at maintaining contact laudable, the children have been living with the foster mother for more than three years. This constitutes the majority of their young lives. Naturally, they view the foster mother as their primary maternal figure. With respect to the nature of the change reported in the modification petition, the ease of the change and the reason it was not made earlier, the court ordered DCFS to provide voluntary reunification services to Mother, including sexual abuse counseling, at the detention hearing in June 2006. The disposition hearing at which Mother was specifically ordered to participate in a program of sexual abuse counseling for non-offenders took place in September 2007. The court did not terminate reunification services until June 2008. Mother thus had more than six months from the disposition hearing and a total of two years to complete the goals of reunification -- a longer period than is generally allowed. (See § 366.21, subd. (e) [court may terminate reunification process in six months where, as here, children involved are under three years old].) Mother did not explain why she failed to undertake sexual abuse counseling until shortly before October 2008 or why she completed only one or two sessions by December 2008. To the extent Mother may have mistakenly believed that the counseling she received in the drug rehabilitation program was sufficient, the court’s ruling at the June 2008 hearing should have impressed upon her the necessity of addressing the sexual abuse issue with a qualified counselor approved by DCFS. As Mother’s efforts to rectify the problem which led to the assertion of jurisdiction over Leila and Harmony were both incomplete and untimely, the court did not abuse its discretion in denying her section 388 petition.
In their briefs, the parties discuss at length the interactions between Mother and the children during the monitored visits and whether the foster mother’s occasional criticism of Mother’s actions was justified. Nothing in the record suggests that the juvenile court placed significance on this information and neither do we.
Mother stated in her petition that she had completed the most active phase of the drug rehabilitation program by April 2008. Accordingly, the conflict she had previously mentioned to the caseworker could not have been an obstacle.
DISPOSITION
The order is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.