Opinion
G055058
11-14-2017
In re K.P., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. T.P., Defendant and Appellant.
Terence M. Chucas, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Robert N. Ervais, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. DP026183-001) OPINION Appeal from an order of the Superior Court of Orange County, Gary L. Moorhead, Judge. Affirmed. Terence M. Chucas, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Robert N. Ervais, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
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Defendant T.P. (mother) appeals from an order denying her motion (Motion) under Welfare and Institutions Code section 388 (all further statutory references are to this code). In the Motion she sought to have plaintiff Orange County Social Services Agency (SSA) place her daughter, K.P. (child), in her custody or, in the alternative, to modify visitation with child to include unmonitored overnight and weekend visits. Mother claims the court erred in denying the motion without a hearing because she had shown both changed circumstances and benefit to the child. We disagree and affirm.
FACTS AND PROCEDURAL HISTORY
This is the second time proceedings involving child have been before us. In Robert P. v. Superior Court (Feb. 14, 2017, G054252) (nonpub. opn.) (Robert P.) Robert P. (father; together with mother, parents), who is not a party to this appeal, challenged orders terminating reunification services and setting a permanency hearing under section 366.26. In denying the petition we set out the facts as existing up to November 2016, focusing on father's behavior and interactions with child. We incorporate the facts and procedural history of Robert P. by reference.
Robert P. was primarily focused on father's behavior. We include additional facts as to mother set out in reports for the six-, 12-, and 18-month combined hearing as relevant for the period January through November 2016.
Child repeatedly stated visits with mother made her feel uncomfortable and stressed, and she felt "awkward" when she visited with mother by herself. Child reported she did not want her mother to attend her volleyball practices "as that is a happy place for her, and she wants to keep that time protected."
Mother became upset when one time child called father a "'monster.'" She thought child had "turned against" father because she had not visited in so long. She wanted to participate in family therapy and stated child "should not be able to just get her way." Mother wanted child to be forced to visit with father and believed child would ultimately change her feelings about him. Child reported mother told her she could not cancel a visit, which was not true.
On more than one occasion mother told child it was child's fault the family had broken up. Mother was still reporting to her therapist children were lying about father's inappropriate sexual behavior and continued to deny he had engaged in such behavior. Mother did not understand child's "serious emotional abuse." Based on mother's failure to accept child's explanation of father's conduct, it would be "unlikely" she could protect child from future abuse.
In October 2016 child's caretaker reported to SSA that mother told child she was leaving father and therefore child could live with mother. According to the caretaker child did not want to reunify with mother but did not want to tell her that because she did not want to hurt mother's feelings.
Around that same time parents sent an e-mail to SSA complaining about SSA's "unfounded accusations and the continue[d] lack of reunification efforts." They claim this had "damage[d] our loving family."
The 18-month hearing report in November 2016 stated "[i]t is evident that the parents have manipulated a plan to live separately so the children could be returned to the mother." Child had two brothers (brothers) who had also been removed from parent's custody. One brother had been told father would pay for mother's separate residence.
After services were terminated in November 2016, SSA prepared a report for the permanency hearing. It stated child was doing well and was happy in her placement with her maternal aunt (Aunt), who wanted to adopt child. Child did not want to reunify with parents but wanted Aunt to adopt her. At that time father reported child still loved him and mother agreed. Mother said child should communicate with father "for a healthier relationship" but child wanted nothing to do with father. Child's therapist discouraged communication due to child's anxiety and posttraumatic stress disorder (PTSD), which are exhibited when she speaks of father, to whom she refers only as "'Him.'"
The report noted child's relationship with mother was "strained," as child was upset mother had returned to father. Child wanted any further visits with mother to be monitored because she did not feel comfortable with mother most of the time. At the time, visitation was supervised for four hours per week.
In an addendum, SSA reported child was upset with a visit with mother due to mother's insistence child attend a Catholic church instead of the Christian church child was attending. Mother continued to press the issue despite a request from child to change the subject. The report also listed five visits child had cancelled, most due to homework load but one because she did not want to attend after a bad visit the week before.
The social worker explained the differences between adoption, long-term foster care, and legal guardianship to child. Child reported she wanted to proceed with adoption and change her surname to Aunt's. In addition, child became very concerned for younger brother when she was told he wanted to return home.
In March 2017 mother filed the Motion. Mother claimed child had said she wanted to live with mother. Mother reported visits were "positive." Mother also stated she had "gone above and beyond" the requirements of her case plan, and brothers were returning to her care. According to mother, she was unable to discuss faith, church or Catholic school with child. She also complained Aunt had removed child from playing volleyball.
In her declaration mother stated she had made positive changes in her life and grown as a person and a parent. Beginning in November 2016 she had moved into her own apartment, without father. It had a separate bedroom and bathroom for child.
Mother stated visits with child were "always very positive and nurturing" and they looked forward to being together. She said child looked to her for "security, emotional and physical caring and support."
Mother listed the programs in which she had participated, including: a June 2015 parenting program; a six-week residency at a shelter for battered women and children where she participated in parenting classes, art therapy and individual and group therapy; a stay for an unstated period of time at Gilchrist House where she also participated in individual, group, and art therapy, and workshops on employment and life skills, and bible study; from March 2016 to the present, individual therapy sessions, where she "learned how to protect . . . children from any abuse"; and as of February 2017, four parenting group classes and four nonoffending group sessions at the University of California Irvine Families of Children Under Stress Program (FOCUS). She attached certificates of completion or participation as to some of these programs.
Mother also attached a letter from her therapist, which stated mother had "made progress in creating boundaries" with father, explaining parents had also participated in joint therapy.
In addition, mother attached a letter from her pastor, who stated he had known her for 10 years, noting she was a substitute religious education teacher. The pastor said he knew mother "[was] of good character and trustworthy with children." Finally, mother attached a letter from a named but otherwise unidentified woman, who stated that having known mother for "many, many years," she knew mother was "of excellent Gody [sic] unshak[e]able character," who "has been an excellent mother because she chooses to put her children first in every instance and every situation."
Mother said it would be in child's best interest to be allowed "to apply all that I have learned in my programs."
After the Motion was filed SSA filed another addendum, which reported child cancelled another visit, saying "I do not feel like it." As to returning to mother's custody, child stated she did not believe mother could protect child from father. She reiterated that if she was returned home, she would harm herself. The social worker reported that, contrary to mother's statement in the Motion, child had never told the social worker she wanted to live with her mother. The report noted child visited with brothers whenever possible; Aunt and brothers' caretakers had worked out arrangements for the visits. Child also reported she did not have time for volleyball due to the amount of homework assigned.
The final addendum reported child had not visited mother for more than a month; child stated she did not feel comfortable visiting her. Child repeated she wanted to be adopted and "move forward with her life." The "Court situation" and school were causing child stress.
In denying the petition without a hearing the court found it did not set out a prima facie case of changed circumstances or benefit to the child. Expressing its familiarity with the matter and noting it "read and reread most of last year's reports," the court found the petition showed mother was "making a significant effort to change her circumstances" but did not, "on its face, show that she has changed." The court further found the claim a change would benefit child was not shown, pointing to the "ongoing psychological issue" child has with both mother and father, and her strong aversion to being near them at the hearing.
DISCUSSION
1. Introduction
To prevail on a section 388 petition, a parent must show by a preponderance of the evidence both changed circumstances and the requested modification would be in the best interest of the child. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) To merit a hearing, a prima facie case of both elements must be presented. (Ibid.) "In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case." (In re J.P. (2014) 229 Cal.App.4th 108, 127.) "If the liberally construed allegations of the petition do not show changed circumstances such that the child's best interests will be promoted by the proposed change of order, the dependency court need not order a hearing." (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
We review denial of a hearing on a petition under section 388 for abuse of discretion. (In re Anthony W., supra, 87 Cal.App.4th at p. 250.) "'"When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court."'" (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) The trial court's decision will not be disturbed unless the court "'"has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]."' [Citations.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
Here, the record validates denial of the petition.
Mother claims the Motion presented "compelling evidence" of changed circumstances in the five months since reunification services were terminated in November 2016. She points to her completion of a parenting class, participation in the FOCUS program, and her progress in therapy. As SSA notes, however, most of these activities on which mother bases her claim she has "grown into both a better person and a better parent," occurred before the termination of services. At that hearing, the court found mother's progress toward mitigating the causes requiring removal of child from parents' custody had been "minimal."
For example, mother's 12-week parenting class was completed 10 months before services were terminated, and her personal empowerment program was completed just shortly after the detention hearing. She had begun individual therapy in March 2016 and it was continuing.
Mother did enroll in FOCUS after services were terminated but this was only after she had previously refused to do so for several months. A therapist had recommended parents attend FOCUS before beginning family therapy, the normal course of treatment. The program usually runs 20 weeks. Mother had attended just four group sessions for nonoffending parents and four parenting classes. And there had been no family therapy. Thus, while her enrollment was a step in the right direction, mother had just begun in the program and there was no indication of her progress.
Further, contrary to her argument, mother's mere "willingness to attend" the program is not sufficient to show a change of circumstances. The change must be to the underlying cause of removing child from mother, which was not a failure to enroll in a parenting program. (In re A.R. (2015) 235 Cal.App.4th 1102, 1119 ["'[t]he change in circumstances must relate to the purpose of the order and be such that the modification of the prior order is appropriate'"].)
Mother also relies on a letter from her therapist where he stated she has "made progress in creating boundaries with her husband." But neither does this show a changed circumstance. The therapist also stated the plan was for mother to "continue working on her self-reliance, self-esteem and healthy parenting." Again, this appears to be evidence of changing circumstances, for which mother is to be commended, but it is not sufficient to warrant a hearing on the petition. (In re Mickel O. (2011) 197 Cal.App.4th 586, 615 ["petitioner must show changed, not changing, circumstances"].)
Mother points out she was not living with father but had moved into an apartment, where child could have her own bedroom. But there is much left unsaid here. Mother does not say father will not be present in her home or that she will protect child from him. As mother herself acknowledges, the primary causes for removal of child from parental custody was father's inappropriate sexual behavior and lack of sexual boundaries, and parents' history of domestic violence. This led to child's PTSD and suicidal ideation. Child reported to the social worker on more than one occasion prior to the hearing terminating services she would kill herself if she had to return home. And after that hearing she threatened to harm herself if returned home.
Child also did not think mother could protect her from father. During the proceedings mother accused children of lying about father's inappropriate sexual behavior and routinely denied his misbehavior or downplayed it. This led to the conclusion she would not be able to protect child from father. There is nothing in the record to show mother now acknowledges father's improper behavior or will shield child and make her feel safe.
Not only that, after the dependency proceedings were initiated, mother separated from father. However, thereafter she returned to live with him. This upset child. In addition, SSA was concerned parents had "manipulate[ed] a plan" to live apart so children would be returned to mother's custody.
Mother also claimed her visits with child were "always very positive and nurturing." The SSA reports belie this, however. Throughout most of the proceedings child stated she was uncomfortable visiting mother unless brothers were also present.
In addition, right up to the time of the hearing on the Motion child had cancelled several visits and cut at least one short. Some were because she needed time to do homework, but child also reported mother was pressuring her about going to Catholic church, which made her feel uncomfortable. She told mother she wanted to continue to attend a Christian church and asked mother to change the topic, which mother refused to do. Further, child told the social worker she wanted visits to continue to be monitored because she usually did not feel comfortable with mother.
In re Hashem H. (1996) 45 Cal.App.4th 1791, on which mother relies, is inapt. There, the Court of Appeal held mother had made a prima facie showing sufficient to satisfy section 388. But the facts were different. In Hashem H., in addition to other facts, the mother did so well in therapy her therapist recommended the child be returned to her. The court held the section 388 petition showed the mother's problems leading to removal "had been successfully resolved through therapy." (Id. at p. 1799.) That is not the case here. In addition, in Hashem H. there was regular and consistent visitation. In our case, visitation was problematic.
In sum, the court correctly found there was insufficient evidence of changed circumstances. 2. Best Interest of the Child
Because mother failed to make a prima facie showing of changed circumstances, we need not discuss whether modification would be in the best interest of the child. Considering it on the merits, however, there is insufficient evidence of this factor as well.
Mother asserts it would be in child's best interest to live with her so she could reunify with brothers, who mother claims are being returned to her custody. She argues children learn how to deal with life from their siblings. She points out older brother will be going to college and appears to be moving on with this life, concluding child could learn from him how to move on with her life. Mother claims child seeing and learning from him is her "best chance for long-term success in life." We are not persuaded.
First, denying the Motion does not mean child will not have a relationship with or be able to learn from brother. She has maintained relationships with brothers during these proceedings, visiting them when time permits. Aunt and brothers' caretakers have cooperated to facilitate visitation. Nothing in the record reflects this will change, especially since older brother is now an adult.
More importantly, since she was removed from parents' custody child has consistently stated she does not want to reunify with mother; at the time of the petition she did not even want to visit with mother. Rather, she wants Aunt to adopt her so she can "move on with her life." Further, as stated above, child fears mother cannot protect her from father, and has said she will harm herself if forced to return home.
Mother concedes child may have told the social worker "on occasion" she did not want to live with mother. But she explains that away by saying child told mother the opposite and asserting it is "unlikely" mother would lie about it due to her "highly developed moral code based on her Catholic faith." This argument is problematic.
The record reflects mother did lie to child in the past, denying father engaged in inappropriate sexual behavior, a primary cause for children being removed from custody. (Robert P., supra, G054252, p. 7.) This led to the conclusion mother would be unable to protect child from father. (Ibid.)
Mother cites to a letter from her parish priest wherein he stated she was "of good character and trustworthy with children." This is apparently based on her serving as a substitute teacher in the parish's religious education program.
Taking this letter at face value, it says nothing about mother's relationship with her own children or any of the events leading to and occurring during the dependency proceeding. Thus, it has no probative value as to whether returning child to mother is in child's best interest.
Nor does the letter from the woman who stated mother was "an excellent mother" because she always put children first support a best interest finding. It does not explain the relationship between mother and the author or how well they know each other. Nor does it explain how much, if anything, the author knows about the events causing child to be removed from mother's custody or what occurred during the proceeding. Further, the court's previous findings in sustaining the dependency petition and terminating services directly contradict some of the claims.
Mother also suggests child is lying about her preference not to reunite, claiming child "would not be the first teenager to tell different people different stories about the same subject." She claims this is "an excellent reason" for the court to have held a hearing on her petition "to sort out the obvious conflict in [child's] statements." This argument fails.
As noted above child has consistently explained she does not want to be returned to parents' care. The record is also clear child was severely traumatized by the events leading up to the dependency proceedings, to the extent she spoke of suicide if she had to live with parents. The court may consider the entire history of the case in deciding whether a prima facie showing has been made. (In re. J.P., supra, 229 Cal.App.4th at p. 127.)
Further, in determining the best interests of a child the court considers: "(1) the seriousness of the problem that led to the dependency and the reason for any continuation of that problem; (2) the strength of the child's bond with his or her new caretakers compared with the strength of the child's bond with the parent; and (3) the degree to which the problem leading to the dependency may be easily removed or ameliorated, and the degree to which it actually has been." (In re Ernesto R. (2014) 230 Cal.App.4th 219, 224.)
Father's inappropriate sexual behavior in front of child and his violence were very serious. At the time services were terminated, the court found father had made no progress on resolving the problems leading to the original detention of child. Mother had made only minimal progress and there was insufficient evidence of changed circumstances, as discussed above.
On the other hand, child was doing well in Aunt's custody and care. Child wanted to be adopted by her and did not want to reunify. "'[D]isruption of an existing psychological bond between dependent children and their caretakers is an extremely important factor bearing on any section 388 motion.'" (In re D.R. (2011) 193 Cal.App.4th 1494, 1512, italics omitted.) After services have been terminated "the court's focus shifts from family reunification toward promoting the child's needs for permanency and stability." (In re J.C. (2014) 226 Cal.App.4th 503, 527.) Here, that need is being fulfilled by her remaining with Aunt and it is not in child's best interest to interfere with the safety and security child has with Aunt.
DISPOSITION
The order is affirmed.
THOMPSON, J. WE CONCUR: ARONSON, ACTING P. J. FYBEL, J.