Opinion
A149216
05-05-2017
In re S.E. a Person Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY BUREAU OF CHILDREN & FAMILY SERVICES, Plaintiff and Respondent, v. F.W., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J14-01172)
Mother appeals from an order denying her petition under Welfare and Institutions Code section 388 to modify the juvenile court's prior order terminating her reunification services. Although no response to mother's opening brief has been filed in this court, the record reflects that mother failed to establish the requisite changed circumstances to support her petition, so that there was no abuse of discretion in denying the petition. Accordingly, we shall affirm the order.
All statutory references are to the Welfare and Institutions Code.
Factual and Procedural Background
On October 29, 2014, the Contra Costa County Bureau of Children and Family Services (the bureau) received a referral for general neglect of mother's then two-year-old son and his two older half-siblings. The referral also alleged that mother and her boyfriend had hit one of the older children.
The eldest sibling was interviewed at school and reported that mother had a gun in the home and grew marijuana. Mother and her boyfriend engaged in domestic violence in front of the children. They also smoked marijuana in the home and blew smoke in the two-year-old's face. The boyfriend physically disciplined them when they misbehaved. Mother hit the two older siblings with a belt for not getting ready for school.
Two days later, the bureau filed a petition alleging that the two-year-old child was at risk of serious physical harm under section 300, subdivision (b) due to mother's substance abuse. The petition also alleged that the child was at risk of harm under subdivision (j) based on an allegation that mother hit his sibling in the face with a belt. The child was detained and placed with his maternal grandmother. Following a hearing in December 2014, the allegations of the petition were sustained.
Petitions were filed with regard to the older siblings as well. Those petitions are not at issue on appeal.
According to the disposition report, the child's siblings had been placed with their father and were relieved not to be living with their mother. The siblings were refusing to visit mother because she remained in a relationship with her boyfriend whom the children feared.
The child has a different father than his siblings. His father was briefly involved in the dependency proceedings but is not involved in the present appeal.
At the February 2, 2015 disposition hearing mother was granted reunification services. Mother was to participate in a domestic violence program, general counseling, a parenting program, an inpatient substance abuse program, drug testing and a 12-step program. Mother was given supervised weekly visitation.
At the July 30, 2015 six-month review hearing, the court granted mother an additional six months of reunification services. According to the social worker, mother was making progress on her case plan and had consistently visited with her son. Mother was attending a domestic violence victims group, therapy, parenting classes, and a program to address her mental health and substance abuse issues. She stopped using medical marijuana in June 2015 and quit methamphetamines in November 2014 and was testing clean.
A November 19, 2015 social worker report requested a brief continuance of the 12-month review hearing. The social worker reported that mother was doing well on her case plan and indicated that the bureau anticipated recommending the continuation of reunification service. The report expressed concerns, however, about mother's untruthfulness regarding her ongoing contact with her previous boyfriend. The report states, "The undersigned received reports from family members that [mother] was still with [boyfriend]. Reports were also received from two separate sources some months back that [mother] was trying to get free of him. [Mother] was finally able to make a break from [boyfriend] entirely at some point in the month of October 2015. [¶] [Mother] now has a safe residence . . . where she will be able to reunify with her son. She has changed her phone number and blocked numbers that [boyfriend] previously called her on. [Mother] also quit her job . . . and obtained a different job and [boyfriend] has no knowledge of where she is presently working. At the present time, the undersigned feels confident that he is no longer a part of her life."
On February 16, 2016, the bureau changed its recommendation to termination of mother's reunification services. The social worker's report explains that the bureau discovered that mother had not terminated her relationship with her boyfriend as she previously reported. The report states, "Mother has continued to be deceptive in her statements to the bureau in insisting she was no longer in contact with [boyfriend]. [¶] After reviewing the . . . medical records for mother, it has come to our attention that [boyfriend] did attend prenatal appointments with [mother] and she identifies him to [the hospital] as her 'fiancé,' and he signed a patient advisory and consent for the use of photography and videotaping in obstetrics during the birth of [their daughter], born December 24, 2015. Furthermore she communicated her intention to [the hospital] that she would take the baby to see [boyfriend] daily, as he was not allowed to visit at the sober living environment where [mother] resides. [¶] The medical records also indicate that [mother] and [boyfriend] work at the same 99 Cent store (she as a manager and he as a sales associate). [Mother] also claimed to [hospital] that she had no past domestic violence history with [boyfriend], whereas the disposition report of February 2, 2015, indicates that [boyfriend] had beaten her 'two weeks ago' and that she went to a shelter to escape him, but only stayed one night. [¶] In further attempts to deceive the bureau, [mother] contacted [hospital] on January 7, 2016, asking that they disclose only her prenatal care . . . and nothing else, 'I would like nothing else said about who goes to the appointments with me released. And please keep it between us please.' On February 11, 2016 [mother] communicated to her doctor the following: 'She (the undersigned) wants to know if I had been seen during my pregnancy. It is OK to talk to her only if that is released. Nothing else. I don't want her to know anything about who was at the hospital with me or visits. Unless it's about me she shouldn't know."
At the February 25, 2016 review hearing, the court terminated mother's reunification services and set a section 366.26 hearing for June 15, 2016.
On June 15, 2016, mother filed a section 388 petition requesting her son be placed in her care and custody under a plan of family maintenance or, alternatively, for an additional six months of services. In support of her petition, mother alleged that she continued to participate in her programs and was not using drugs. Mother claimed that she stopped having contact with her boyfriend and acknowledged he needed to address his domestic violence issues before she could consider allowing him to be a part of her life.
The court granted an evidentiary hearing on mother's petition and heard testimony and argument on June 22 and July 27, 2016. Mother testified that she was no longer in a relationship with the boyfriend. When asked why she was no longer in the relationship, mother replied that she needed "to know 100 percent that he is trying to engage in services and fix his problems with anger management and/or substance abuse." She acknowledged her services were terminated because she was dishonest with the bureau about her relationship with her boyfriend. She admitted to continuing her relationship with him from March 2015 to January 2016 and acknowledged she made a bad choice by continuing to have contact with him because he had not addressed the case issues. Her boyfriend was no longer employed with her at the 99 Cent Store. The bureau took no position on mother's petition.
The bureau similarly has not taken a position on appeal and has submitted a letter to that effect in lieu of a formal respondent's brief.
After hearing closing arguments, the court denied mother's section 388 petition, finding that mother had not demonstrated changed circumstances or that additional reunification services were in the child's best interests. The court explained that mother's testimony was not credible. "She has lied to the court. She has lied to the [bureau]. I've reviewed her testimony in the proceedings. I did not find her to be a compelling or very credible witness at all. I don't find any evidence that she understands the risk that [boyfriend] poses to her child and that her decision to continue to have a secret relationship, how that impacts the likelihood and chance of reunification in this case." The court acknowledged that there "may be some changing circumstances" but explained that it could not find that there had been a change sufficient to warrant continued services.
The section 366.26 hearing was continued to December 2016. Mother timely filed a notice of appeal from the order denying her section 388 petition.
At the section 366.26 hearing held on December 12, 2016, the court selected long-term guardianship with the child's paternal aunt and uncle as the permanent plan for the child and vacated dependency jurisdiction. On January 3, 2017, mother filed a notice of appeal challenging that order (A150289). --------
Discussion
Under section 388, a parent "may, upon grounds of change of circumstances or new evidence, petition the court in the same action in which the child is found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of the court previously made or to terminate jurisdiction of the court." "The petitioning party has the burden of showing, by a preponderance of the evidence, that there is a change of circumstances or new evidence, and the proposed modification is in the child's best interest." (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.) "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." (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) "The denial of a section 388 motion rarely merits reversal as an abuse of discretion." (In re Amber M. (2002) 103 Cal.App.4th 681, 685-686.)
The court in this case properly characterized the circumstances as perhaps "changing" but not sufficiently changed to warrant granting the petition. (See In re Casey D. (1999) 70 Cal.App.4th 38, 47 ["A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child's best interests."].) The court found mother's testimony completely lacking in credibility. Even assuming that she was being truthful, by her own testimony she had been apart from the boyfriend at the time of the hearing for at most five months. Given her prior deception, the court was justified in considering five months insufficient time to reliably establish that the relationship had permanently terminated, particularly now that mother has a younger child with the boyfriend. Accordingly, there was no abuse of discretion in the denial of mother's petition for modification.
Disposition
The order denying mother's petition for modification is affirmed.
Pollak, J. We concur: McGuiness, P. J.
Siggins, J.