Opinion
G057481
09-23-2019
In re M.M., et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. A.H. et al., Defendant and Appellant.
Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant S.M. Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant A.M. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 17DP0848 & 17DP0849) OPINION Appeal from a judgment of the Superior Court of Orange County, Antony C. Ufland, Judge. Affirmed. Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant S.M. Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant A.M. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
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In the middle of a permanency planning hearing, the juvenile court considered and summarily denied a Welfare and Institutions Code section 388 petition filed by Amanda H. (Aunt). After resuming the permanency hearing (§ 366.26), the juvenile court terminated S.M.'s (Mother) and A.M.'s (Father) parental rights to their daughters M.M. and A.M. Mother, Father, and Aunt filed notices of appeal. In her briefing, Mother argued the court erred by denying Aunt's section 388 petition requesting placement of the children with her. Father and Aunt filed briefs joining in Mother's arguments. We conclude the contentions on appeal lack merit, and we affirm the judgment.
All further statutory references are to the Welfare and Institutions Code.
FACTS
In early August 2017, the Orange County Social Services Agency (SSA) brought the minors into protective custody due to allegations of severe neglect. A few days earlier, Mother gave birth to A.M. at home, and when she was later admitted to the hospital, both Mother's and the baby's urine tested positive for opiates. A.M. experienced withdraw symptoms and received methadone. Mother admitted she was taking pain medication due to a car accident injury. She could not provide prescription information or the name of her doctor. She later admitted using heroin daily during her pregnancy, and while taking care of her two year old daughter, M.M.
Mother had four other children, who resided with their biological father, M.D. After learning about Mother's substance abuse, M.D. filed for full custody of his children and agreed to limit their contact with Mother. Neither M.D., nor his four biological children, are parties to this appeal.
Father claimed he was unaware of Mother's heroin use, although he was aware of her pain medication prescriptions. Father had a criminal history for gang activity and driving under the influence. He stated Mother informally gave him custody of M.M., and he was willing to keep both children in his care. Father was living with Mother's relatives. Mother moved out of the residence, and her relatives helped Father care for the children.
Based on the above information, SSA filed a petition alleging Mother and Father failed to protect their children (§ 300, subd. (b)), and Mother abused A.M. by failing to receive prenatal care and using heroin during her pregnancy (§ 300, subd. (j)). At the detention hearing, the court removed the children from Mother's custody and released them to Father.
However, a few days later, the court detained the children from Father because he violated the court's order not to permit unauthorized contact between Mother and the children. When at home with Father, M.M. witnessed a violent altercation between Mother and a paternal aunt, and she watched police arrest both women. The social worker reported the police confirmed Father's residence was "not a safe home and there have been myriad calls for services specifically noting [Mother] and the paternal aunt . . . are habitual heroin users and this was not the first physical altercation between the two."
The social worker included in her detention report a list of four possible relative placements, including Aunt. Father's first choice for placement was a paternal great aunt, who declined placement. Maternal grandmother and a paternal aunt also declined placement. Maternal great grandmother stated she would be willing to take the children after she recovered from a scheduled hip replacement surgery. Aunt indicated she was willing to care for the children. The social worker reported Aunt lived in a two-bedroom apartment with three children (ages eight, two, and eight months). The court ordered visitation for Father and that SSA "evaluate relatives for possible placement."
A few months later, the social worker prepared her jurisdiction/disposition report. She recommended the court sustain the petition, declare dependency, offer reunification services, and order placement "with consideration of placement to relatives." After the last hearing, M.M. was placed with foster parent, Jennifer B. and her family. Although Mother was willing to address her substance abuse issues, she was now facing felony charges for gross vehicular manslaughter while intoxicated.
In her report, the social worker updated the court on her efforts to find relatives. She stated Aunt was being considered for placement and SSA completed "[c]learances and the home assessment[.]" Meanwhile, the children were thriving in Jennifer B.'s care. M.M. was comfortable and adjusting to her new home. She frequently asked for her parents, especially after visits. She would cry for them and require comforting at night. A.M. was still suffering from heroin withdrawal symptoms, but Jennifer B. and the nanny could comfort her.
In September 2017, the court sustained an amended petition, vested custody of the children with SSA, and ordered reunification services for Mother and Father. The social worker's status review report six months later (February 2018) disclosed the parents had not participated in drug testing or substance abuse treatment. They were often missed visits or were late. M.M. was experiencing emotional distress, especially before and after parental visits or when they missed visits. After visits, Jennifer B. noticed M.M. reverted to using her fingers as a pacifier and would have tantrums. M.M. was biting people and choking the family's dogs. She often screamed and made up stories. She was seeing a therapist weekly. Her current diagnosis was "'[a]djustment disorder with mixed disturbance of emotions and conduct.'" The children were otherwise comfortably living with Jennifer B., and positively interacted with her.
In her next status review report, filed in August 2018, the social worker discussed how M.M.'s emotional status was improving. Jennifer B. stated that M.M., by July 2018, "[h]ad made huge strides" with her behavior and was seeing a different therapist. She opined M.M. needed a set routine, a stable home, and time to learn how to attach and trust.
At the end of July 2018, M.M.'s therapist wrote the following: "Based on my knowledge of [M.M.'s] history and presenting problems related to her mental health treatment it is my clinical opinion that experiencing triggers related to her past trauma would be detrimental to her overall wellbeing and health. Such exposure may lead to regression of progress and/or exacerbation of distressing symptoms. Trauma triggers may include exposure to unsafe environments and/or people (e.g., perpetrators of abuse). Additionally, frequent unexpected changes to [M.M.'s] routine may be detrimental to her progress in treatment and overall adjustment. [M.M.'s] safety and security across all of her environments as well as structured and anticipated routine is critical to continued progress in treatment and recovery."
The social worker noted for the past year Mother and Father failed to complete any services other than parenting education. Mother, who was homeless and lacked transportation, was consistently late for visits or did not show up. The social worker provided Mother bus passes and resources for shelters and other community resources. Mother indicated she did not have an excuse for failing to participate and in July, she was incarcerated in state prison for a six-year sentence. Father was consistently late for visits and could not provide proof he was employed.
The social worker's six-month and 12-month review reports did not contain any new information on the issue of relative placement. In an addendum report, dated October 4, 2018, the social worker noted Aunt called her in August 2018, and asked if she could be assessed to adopt the children. The social worker reported Aunt "stated that she was aware that she could not provide placement before, but now is able to." The social worker assured Aunt it was possible to re-initiate the assessment process. That same day, the social worker contacted the Resource Family Approval Placement (RFAP) about assessing Aunt for placement. Two days later, the social worker received an e-mail from the RFAP stating Aunt was not approved for an emergency placement. The case was reactivated to continue with an assessment. Later that month, the social worker received a letter from Mother stating Aunt wanted to adopt the children, and Aunt had not heard from the social worker. Mother expressed hope the social worker was following up on Aunt's request.
In early October 2018, the court terminated reunification services. It scheduled a permanency hearing for January 2019. In a report prepared for the hearing, the social worker recommended the court terminate parental rights to the children (then one and three years old). Both parents were incarcerated and had failed to adequately participate in their case plans. The social worker opined the children were adoptable, and their current caretaker wished to adopt them. Jennifer B. and the children had a positive relationship, and the children were happy in her care. They called her "Mama" and appeared to have developed strong bonds during the year and one-half they had lived together. M.M. told the social worker she would feel happy if she lived with Jennifer B. forever.
By this time, M.M.'s behavior had improved overall and she was no longer in therapy. However, she remained attached to her birth parents, she still talked about them, and she had a difficult time being separated from them. The social worker opined M.M. would benefit from additional therapy because the child had difficulty with changes, and her parent's failure to comply with their service plans made reunification unlikely.
In October 2018, M.M. visited Mother in jail through a glass barrier. M.M. told Mother she loved her and missed her. She asked to see Father. M.M. told Mother about her room. At the end of the visit, M.M. cried and told Mother, "I don't want to go." She tapped her hand on the glass barrier and said on the phone, "don't go." As Mother walked away, M.M. cried loudly and had to be carried out of the room. She stopped crying by the time they reached the car, but M.M. told the social worker, "I love my parents. I want my dad and mom." Thereafter, Mother was transferred to a prison in Folsom. She would be eligible for parole in three years. M.M. also visited Father in jail. He experienced difficulty discussing current events with M.M., and instead would inappropriately focus on the past or make M.M. promises. During their last visit, M.M. lost interest with visiting Father.
With respect to the issue of relative placement, the social worker stated that in August 2018, Aunt asked to be the children's caretaker and for visits with the children. RFAP informed the social worker that Aunt was not approved for emergency placement because Aunt was living with people who "were not forthcoming about their criminal history." RFAP's supervisor stated Aunt would need to undergo a full RFAP assessment and she should request that her case be reopened. In October 2018, the social worker asked RFAP about the status of Aunt's application. RFAP was waiting to hear from Aunt about a person living in her home, and whether the resident had informal or formal probation. In addition, the Aunt had not yet scheduled trainings. The social worker stated she had not heard from Aunt in the past three months.
The permanency hearing was continued to March 18, 2019. The court heard testimony from the social worker, who discussed her efforts regarding relative placement. In addition to the information contained in the reports (discussed above), the social worker noted Aunt's home assessment was completed near the end of January 2019. She indicated the next step was to determine if the home was approved from social worker Leah Campos. The social worker testified she did not know if the home was approved and she had not tried to contact Campos. The social worker noted Aunt had not been visiting the children on a regular basis. She visited them once, within the last six months, with maternal grandmother. After that, Aunt asked the social worker if she could visit the children again. This was the only time during the entire dependency case when Aunt asked to visit the children. The social worker stated Aunt contacted her once in the last 60 days to ask about her assessment. The social worker told her to follow up with Campos. The social worker opined it would not be in the children's best interests to be removed from Jennifer B's care.
On the second day of the hearing, Aunt filed a section 388 petition, requesting placement. She asserted, "It appears that the relative placement issues may have slipped through the cracks." Aunt stated she was never given a reason why the children could not be placed with her and she believed the placement process was "ongoing." She stated the changed circumstances was evidence "SSA failed to place the children in a timely manner, or in the alternative, provide [the juvenile court] with the facts regarding placement" to permit the court to fulfill its duty under section 361.3. She submitted an unsigned letter in support of her section 388 petition, explaining she was never contacted about placement and was led to believe there was still time to complete the process. She added placement was in the children's best interest because she shared a strong bond with M.M., even though they had not spent much time together recently. She described her last visit with M.M., and how the child remembered her and never left her side.
The court heard argument about whether the section 388 petition made a prima facie case for a hearing. Aunt's counsel argued SSA failed to follow the section 361.3 relative placement procedures. He argued Aunt was never told she was rejected and did not have access to the confidential social worker reports. Counsel argued Aunt was led to believe placement was still a possibility.
SSA argued the petition did not state a change of circumstances and was untimely (filed in the middle of a permanency hearing). Counsel argued Aunt's original application for placement was withdrawn due to an issue with who was living in her home. Furthermore, SSA contended Aunt's reapplication was untimely, and certainly not in the children's best interests. Minors' counsel agreed. She argued section 361.3 "is not triggered unless a caretaker doesn't wish to adopt and in this case, certainly, that is not the circumstance." She added there was nothing to suggest a change in placement would be in the children's best interests. She stated the children had been happily living in a stable environment with Jennifer B. for 19 months and Aunt only visited one time.
Counsel for Mother and Father argued Aunt's letter presented new information and the section 388 petition should be heard. Mother's counsel argued M.M. had a strong familial bond with her Aunt, predating the dependency case.
The court decided there was not a prima facie showing of a change of circumstances or new evidence warranting a change of placement. It noted the permanency hearing was set in October 2018, and the hearing was continued from January to March 2019, yet Aunt waited until after the hearing started to file the section 388 petition. The court stated, "Even if there was a change in circumstance or . . . new evidence, the court does not find there is even prima facie showing that it would be in the best interests of the children to take them from a placement where they've been for 19 months that has been providing stability for them and place them in a relative placement where they've met the individual one time. There's been one visit. That, certainly, would not be in the best interests of the children, so the petition . . . is denied."
After making this ruling, the court resumed the permanency hearing and considered Mother's testimony. The court terminated parental rights and concluded adoption was the appropriate permanent plan. It granted Jennifer B.'s request to be the children's de facto parent.
DISCUSSION
Mother, Father, and Aunt (collectively referred to as Appellants), contend the juvenile court was presented with new evidence showing the children's best interests "might" be served by an order changing their placement. In addition, Appellants maintain Aunt presented "new evidence" in her petition by alleging SSA failed to comply with section 361.3's mandate to timely and favorably evaluate a relative's placement request. We conclude the trial court did not abuse its discretion in refusing to hold a hearing on Aunt's section 388 petition.
Under section 388, a juvenile court order may be changed or set aside "if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806 (Zachary G.).) "[I]f the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition." (Ibid.; § 388, subd. (d).) The prima facie requirement is not met "unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition. [Citation.]" (Zachary G, supra, 77 Cal.App.4th at p. 806.) We review the juvenile court's order denying a section 388 petition without an evidentiary hearing for abuse of discretion. (Id. at p. 808.) "It is rare that the denial of a section 388 motion merits reversal as an abuse of discretion . . . ." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 522.)
Assuming, without deciding Aunt's petition could be construed as somehow raising "new evidence" (Zachary G, supra, 77 Cal.App.4th at p. 806), she did not make a prima facie showing that changing the children's placement was in their best interest. Aunt's declaration in support of her petition indicates she was generally aware of how the dependency case was progressing. Although she did not have access to confidential reports, she understood her older sister (Mother) was in danger of losing custody of her daughters. Aunt's letter describes in detail how she did not understand the process for placement, she believed her home would be approved, she never backed out of the process, and she was not given a "fair opportunity" to gain custody. Noticeably missing from Aunt's lengthy letter was information relevant to the children's best interests, such as the strength of the familial relationship. Aunt does not suggest she maintained her connection with M.M. after she was taken into protective custody, or that she attempted to visit and form a relationship with A.M. following her birth. As the court noted, Aunt visited the children only once over the past 19 months. This visit, and Aunt's subsequent request for a second visit, took place within the past six months. Aunt did not provide any evidence indicating she requested or SSA denied requests to visit the children during the entire first year of these dependency proceedings.
Aunt's typed letter was unsigned. There was no declaration under penalty of perjury. She did not submit any other direct evidence to support the allegations in the petition. She did not deny living with people with problematic criminal histories. --------
Aunt describes her single visit with the children as being happy and loving. Despite the passage of time, Aunt believed M.M. remembered her and that A.M. was friendly towards her by smiling and laughing. This story, when viewed in context of what transpired during the 19 months of dependency proceedings, was not a prima facie showing a change of placement would be in the children's best interests. The record shows A.M. had lived with her prospective adoptive parent's home all of her life, she was happy in Jennifer B.'s home, and by all accounts, she was strongly bonded to Jennifer B. A.M. did not know Aunt before her visit, and therefore, Aunt's declaration simply established a happy baby laughed and smiled at a friendly face.
As for M.M., we appreciate her apparent recognition of Aunt, and their visit together was overall a positive experience. However, Aunt failed to explain how this single encounter proves that changing M.M.'s placement would be in the three-year-old's best interest, especially in light of M.M.'s history of struggling with mental health issues. M.M.'s therapist opined unexpected changes to M.M.'s routine would be detrimental to her treatment plan and health. Changes in M.M.'s life often triggered emotional distress and regressive behaviors. The record supports the conclusion M.M.'s emotional state improved because Jennifer B. could provide her with a structured daily routine and a loving home environment. Over the past year and a half, M.M. was steadily making progress in recovering from the trauma she experienced in her parents' care. M.M. called Jennifer B. "mama" and stated she would happily live with "mama" forever. Aunt did not attempt to explain how she would provide a similar home life, or why the trauma created by removing M.M. from her current longstanding secure home would be in the child's best interests. In light of all the above, it cannot be said the juvenile court abused its discretion in denying Aunt's section 388 petition.
DISPOSITION
The judgment is affirmed.
O'LEARY, P. J. WE CONCUR: MOORE, J. IKOLA, J.