Opinion
E032395.
7-23-2003
In re A. B. et al, Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY DEPARTMENT OF CHILDRENS SERVICES, Plaintiff and Respondent. v. BOBBI C., Defendant and Appellant.
Jennifer Mack, under appointment by the Court of Appeal, for Defendant and Appellant. Alan K. Marks, County Counsel, Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent. Jacquelyn E. Gentry, under appointment by the Court of Appeal, for Minors.
Bobbi C. (mother) appeals from the juvenile courts order dated September 10, 2002, in which the court granted legal and physical custody of her daughters, L. and A., to their father, Clifford B. (father) and dismissed the dependency case. Mother contends that the juvenile court, instead, should have granted her Welfare and Institutions Code section 388 petition, in which she asked the court to reinstate her reunification services and increase her visitation. We affirm.
All further statutory references will be to the Welfare and Institutions Code.
The childrens counsel filed a letter brief, joining in the respondents brief and requesting that we affirm the juvenile courts judgment in its entirety.
FACTUAL AND PROCEDURAL BACKGROUND
Mother has four children, but only two of them are the subject of this appeal. Mothers opening brief discusses the history of all four children, and requests the return of three of them. However, the notice of appeal only names A. and L. Therefore, this opinion will focus only on A. and L.
On March 10, 2000, the Department of Childrens Services (DCS) removed L. and A. (collectively, the children), who were six years old and five years old, respectively, from mothers custody. At that time, fathers whereabouts were unknown.
At the March 21, 2000 detention hearing, the court found that there was a prima facie case for detention, and the children were detained in foster care.
At the jurisdictional/dispositional hearing on June 6, 2000, the court found true the following allegations of DCSs section 300 petition: (1) Mother suffered from lupus. At times, the disease interfered with her ability to parent. Her home was found unfit for human occupancy on March 10, 2000; the residence was infested with insects, had animal feces and urine throughout the home, was cluttered with clothes, dirty dishes, and spoiled food, and contained dangerous objects within easy reach of the children (knives, tools, and vials of medication). (2) Mother left the children with a noncustodial parent on March 10, 2000. (3) The children were left in the care and custody of mother, when the childrens alleged father (Clifford B.) knew or reasonably should have known that the children would be in danger of sustaining serious physical harm. (4) On March 10, 2000, and on prior occasions, the alleged father had left the children in mothers care and custody, even though he knew or reasonably should have known that mother suffers from substance abuse and lupus, rendering her incapable of providing adequate care for the children. (5) Finally, the children had been left with no provision for support because the whereabouts of the alleged father were unknown. The children were declared dependents of the court and were placed in the custody of the DCS. The court ordered that reunification services be provided to mother, and mother was ordered to participate.
The family service plan (the service plan) required completion of the following tasks: (1) keep the social worker informed of changes of address or household composition, and inform the social worker promptly of any new problems or barriers to the effective completion of the plan; (2) protect the children from further abuse by Troy F. (mothers fiance), by not associating with him or allowing any contact between him and the children during visits or trial placement in her home; (3) demonstrate the ability to provide adequate child care by not leaving the children unsupervised during visits; (4) refrain from alcohol use and excessive corporal punishment during visits; (5) locate and maintain a safe and sanitary home; (6) locate appropriate child care with family members or adult custodians; (7) demonstrate the financial ability to care for the children; (8) cooperate with and follow all recommendations of her probation officer and refrain from unlawful acts; (9) resolve pending criminal proceedings and be available to parent the children; (10) apply for all eligible benefits to stabilize her home (i.e., food stamps, child care); (11) participate in counseling until the therapist and social worker agreed that the children could safely be reunited with mother; (12) participate in therapy with the children, as directed by the childrens therapist and approved by the DCS, to resolve behavioral and emotional problems; (13) cooperate in obtaining medical treatment for the children, and accept the services of a public health nurse; (14) arrange for therapy/counseling/ classes for the children, as needed; and (15) cooperate in requesting that the social worker receive a written report from evaluating therapists or counselors concerning mothers ability to adequately protect and parent the children.
Six-Month Status Review Hearing
The court found that custody by mother continued to be detrimental to the children. Mother had failed to complete the court-ordered treatment plan. The matter was continued to May 15, 2001, for a 12-month review hearing.
Twelve-Month Status Review Hearing
A 12-month status review report, dated May 15, 2001, recommended that reunification services be terminated and that a section 366.26 hearing be set. The report listed the following service plan activities that had not been completed: (1) mother was required to cooperate with and follow all recommendations of her probation officer, which she failed to do, in that she was incarcerated for violation of the terms and conditions of her probation; (2) mother failed to inform her social worker that she was incarcerated for violation of the terms and conditions of her probation during the previous reporting period; (3) mother failed to protect the children from further abuse by Troy F., by not associating with him or allowing him any contact with the children during visitation or trial placements in her home; there had not been any trial placements in her home during the previous reporting period, and Troy F. had accompanied mother to at least one visit with the children; (4) mother was required to refrain from alcohol use and excessive corporal punishment, and to demonstrate her ability to provide adequate children care by not leaving the children unsupervised during visitation or trial placement in her home; mother had not completed these objectives since there had not been any trial placements in her home; (5) mother failed to maintain a safe and sanitary home, make arrangements with family members or adult custodians for child care, or demonstrate her financial ability to care for the children; (6) mother failed to resolve pending criminal proceedings and be available to parent the children, by violating her probation terms and being incarcerated; (7) she failed to apply for food stamps or child care; (8) mother had participated in counseling, but the therapist and social worker agreed that the children could not be safely reunited with mother; (9) mother failed to participate in therapy with the children, as directed by the childrens therapist and approved by DCS, to resolve behavioral and emotional problems; (10) mother failed to cooperate in obtaining medical treatment for the children; (11) she failed to accept the services of a public health nurse; and (12) mother failed to arrange for therapy or counseling for the children (therapy and counseling were instead arranged by the substitute care providers).
On August 9, 2001, at the contested 12-month review hearing, the court found that mother had failed to complete the court-ordered treatment plan. The parties reached a stipulated agreement in which mother agreed to withdraw her contest to the proposed section 366.26 hearing. In exchange, the parties agreed that mother would have supervised visitation twice a month and that reunification services would be terminated, but mother would participate in counseling independently. DCS also agreed to limit its recommendation at the 366.26 hearing to legal guardianship or long-term foster care. Mother was seeking counseling services at Lutheran Social Services at the time, and it was agreed that she could file a section 388 petition prior to the section 366.26 hearing, if she received a positive recommendation from her therapist on her parenting ability. The court terminated reunification services and set the section 366.26 hearing for December 7, 2001. The section 366.26 hearing was continued to April 9, 2002.
Section 387 Petition Regarding A.
On February 21, 2002, DCS filed a supplemental section 387 petition, recommending that A. be moved to a restrictive group home, because of her psychotic behavior. The social worker mentioned in her report that the foster mother was willing to keep L. but could no longer handle A. Section 387 provides for an order changing a previous order by removing a child from the physical custody of a parent, guardian, relative, or friend and directing placement in a foster home, or commitment to a private or county institution. A. had been diagnosed with such conditions as anxiety disorder, mild cerebral palsy, neurological damage, and psychotic features. The social worker recommended a permanent plan of long term foster care for A. The court ordered A. to be placed in long-term foster care. The court vacated the section 366.26 hearing and continued the matter for a jurisdictional/dispositional hearing on March 14, 2002.
Jurisdictional/Dispositional Report and Hearing - A.
In the jurisdictional/dispositional report dated March 14, 2002, the social worker reported A.s need to be placed in a group home, in order to receive a thorough psychological examination, medication evaluation, psychotherapy, behavior modification interventions, and a structured environment. She had been placed in a group home on March 5, 2002. On March 14, 2002, the matter was continued to April 9, 2002.
In a disposition report dated April 9, 2002, the social worker reported that A. continued to need short-term group home placement, with the intent to move her as soon as she was stable. The social worker reported that an Interstate Compact for the Placement of Children (ICPC) evaluation would be done for fathers home in North Carolina, in order to determine whether or not it would be an appropriate placement for A. in the future.
At the April 9, 2002 hearing, the court continued A. as a dependent of the court and in the custody of DCS, and also found long-term foster care to be the appropriate plan for her. The court ordered that A. continue to live in the group home. The matter was continued to October 9, 2002.
Addendum Report Regarding L.
In an addendum report dated April 9, 2002, the social worker recommended that the matter be continued for one month in order for the ICPC home evaluation and report on fathers home in North Carolina to be performed. The addendum report also noted that L. had been placed on psychotropic medication because she was engaging in oppositional and aggressive behavior. At the hearing held on April 9, 2002, the court continued L. as a dependent of the court and in the custody of DCS. The court granted the request to continue the matter for the ICPC to be completed, and the matter was continued to June 10, 2002 for a further section 366.26 hearing.
Mothers Section 388 Petition
On May 14, 2002, mother filed a section 388 petition seeking modification of the juvenile courts August 9, 2001, order terminating reunification services. She requested reinstatement of reunification services and increased visitation. As to changed circumstances, mother alleged: (1) between May 2000 and February 2002, mother had completed 43 weekly individual therapy sessions; (2) in 2000, mother completed a parenting class and a domestic violence program; (3) her therapist reported in a letter that mother did not appear to exhibit symptoms of her original diagnosis of "Adjustment Disorder with Depressed Mood," that mother "[took] responsibility for the child neglect issues that precipitated the protective service/court involvement," and mother had the "abilities and motivation to parent her children in a healthy emotional environment"; (4) mother has been promoted in her job responsibilities, and was working more hours at a higher pay rate; (5) mother moved out of her in-laws home and into a separate residence in March 2002; and (6) mothers drug tests with the probation department and DCS were consistently negative. Mother attached a letter from her therapist and two pay stubs to support her petition.
Mother further alleged that the requested modifications were in the childrens best interest because she had made significant progress in addressing the problems that led to the removal of the children. Mother alleged that she had substantially completed the family services plan.
DCSs Section 388 Petition and Addendum Reports
On June 21, 2002, the DCS filed its own section 388 petition, recommending that the current permanent plan for A. be changed to placement with father in North Carolina. (For some reason, the petition did not mention L.) The new evidence to support the change was that fathers ICPC home evaluation had been approved.
In an addendum report dated June 21, 2002, DCS stated that while mother had completed many requirements of her service plan, she had not shown that she had benefited from the services. The report noted that mother was "still making bad choices in the men she selects and wants her children to be around." The report stated that mothers current husband, Patrick C., had been arrested for evading the police, and for possessing marijuana in the home he shared with mother. Furthermore, since the children had been in protective custody, mother had resided at nine different locations. Mother was currently residing in a studio apartment that was not adequate for the safe return of the children. Mother was working at Dominos Pizza, and had been there for the past seven months. As to mothers section 388 petition, the social worker stated that, contrary to mothers allegations that she took responsibility for the childrens neglect issues that led to the removal of the children, mother would tell the children that it was the judge that was keeping them apart. Mother also put the responsibility on the children by telling them that they needed to do everything they were supposed to do in their placements, so that they could come home. Mother had not, in the social workers presence, told the children that she was the reason they were not together. Moreover, the social worker reported that, contrary to mothers allegation that she had drug tested negatively, DCS had not tested mother for drugs, and mother had not presented DCS with any verification of drug testing since August 9, 2001.
Thus, the social worker recommended that the children be continued as dependents of the court, but that they be detained with father, with DCS to supervise and report. The social worker also recommended that father be ordered to participate in a family maintenance service plan.
In an addendum report dated September 10, 2002, the social worker recommended that the current permanent plan for A. and L. be changed to placement with father in Kentucky (he apparently had moved from North Carolina). The social worker reported that A. and L. went to their fathers home for an extended visit on July 17, 2002. The social worker observed the home to be appropriate, and noted that the children were doing well with their father. Father had enrolled the children in school while they were on their extended visit, so that they would not miss any school. DCS had not heard from the ICPC regarding approval of the fathers new home in Kentucky, although his home in North Carolina had been approved.
Section 388 Hearing
On September 10, 2002, the juvenile court found that there had not been a significant change of circumstances and denied mothers section 388 petition. Furthermore, counsel for DCS requested the court to find that the conditions that justified the initial assumption of jurisdiction of the children no longer existed. The court found that the conditions no longer existed, discharged the children as dependents of the court, and ordered that legal and physical custody of A. and L. be granted to father. Mother was granted supervised visitation. The court dismissed DCSs section 388 petition pursuant to the custody order.
Mother filed a timely appeal.
ANALYSIS
Mother contends that the juvenile court abused its discretion in denying her section 388 petition because she made an adequate showing of changed circumstances to warrant the reinstatement of reunification services.
I. Standard of Review
"A juvenile court order may be changed, modified or set aside under section 388 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. [Citation.]" Some of the factors that can be considered in determining if the proposed change would be in the best interests of the children include: "(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been."
In re Zachary G. (1999) 77 Cal.App.4th 799, 806, italics added.
In re Kimberly F. (1997) 56 Cal.App.4th 519, 532, italics omitted.
"Whether a previously made order should be modified rests within the dependency courts discretion, and its determination will not be disturbed on appeal unless an abuse of discretion is clearly established. [Citation.]"
In re Michael B. (1992) 8 Cal.App.4th 1698, 1704.
II. The Juvenile Court Properly Denied Mothers Petition
Since Mother Failed to Allege a Change in Circumstance
At the 12-month hearing on August 9, 2001, the juvenile court found that mother had failed to complete the court-ordered treatment plan and that custody by mother would be detrimental to the children. The court therefore terminated reunification services and set a section 366.26 hearing. Mother subsequently alleged, in her section 388 petition, that her circumstances had changed.
While the items alleged in mothers section 388 petition were laudable, they were insufficient to show any true change in her circumstances since the 12-month hearing. Mother first alleged that between May 2000 and February 2002, she completed 43 weekly individual therapy sessions. However, the requirement in her service plan was that she participate in counseling and remain involved until her therapist and the social worker agreed that the children could be safely returned to her. At the time of the 12-month hearing, mother had already completed the portion of the requirement requiring her to participate in counseling. However, at that time, her therapist and social worker felt that the children could not yet be safely returned to her. At the time of the section 388 hearing, the social worker still did not feel that the children could be safely returned to her. Thus, mothers circumstances in this regard had not changed.
Secondly, mother alleged that she had completed a parenting class and a domestic violence program in 2000. The 12-month hearing was held on August 9, 2001, which meant that, at that time, mother had already completed the parenting class and domestic violence program. Thus, this was not a changed circumstance. Moreover, mothers service plan did not require her to complete a parenting class or a domestic violence program.
Thirdly, mothers petition alleged that her therapist reported in a letter that mother did not appear to exhibit symptoms of her original diagnosis of "Adjustment Disorder with Depressed Mood," that mother "[took] responsibility for the children neglect issues that precipitated the protective service/court involvement," and that mother had the "abilities and motivation to parent her children in a healthy emotional environment." However, as reported by the social worker, mother put the responsibility for the dependency proceedings on the court and on her children. Mother told the children that the judge was keeping them apart, and that the children needed to do everything they were supposed to do in their placements so that they could come home. Mother also blamed past social workers for her not getting her children back because of "all the lies they [told]." The social worker observed that mother never admitted to the children that her own conduct had caused the separation, and opined that mother had not shown that she took responsibility.
Fourthly, mother alleged that she had been promoted in her job responsibilities, and was working more hours at a higher pay rate. However, by the time of the section 388 hearing, she reported to the social worker that she had been demoted and was working fewer hours.
Fifthly, mother alleged that she had moved out of her in-laws home and into a separate residence in March 2002. However, mother was living in a studio apartment with a male roommate. The social worker opined that mothers studio apartment was not adequate. At the section 388 hearing, mother alleged that she had a full-time job and was able to save money to provide adequate housing. Again, the social worker indicated that mother had just received a demotion and was working fewer hours. Moreover, mothers service plan required her to maintain an adequate home, not simply to save money in order to one day provide an adequate home.
Finally, mothers petition alleged that she had drug tested with the probation department and DCS and that the results were consistently negative. However, the social worker reported that DCS had not been testing mother for drugs because reunification services were terminated on August 9, 2001. Moreover, mother had not presented DCS with any verification of drug testing since that time.
Mother also alleged that although her therapist had expressed some concerns over mothers current husband and had mentioned that he should be evaluated for substance abuse, her husband had recently been arrested and was going to be incarcerated "for a considerable period of time." Mother appeared to be contending that, if the children were to be returned home, her husband would not be a concern, since he would not be living with them because of his incarceration. Mothers service plan required mother to protect the children from abuse by her fiance at that time, Troy F. Mothers allegation regarding her current husband, Patrick C., being incarcerated, only confirmed the social workers concern that mother had not benefited from her parenting class, in that she was still "making bad choices in the men she selected and wanted her children to be around."
"The essence of a section 388 motion is that there has been a change of circumstances." Mother clearly failed to establish by a preponderance of the evidence that changed circumstances existed. Thus, we do not need to discuss the other required showing that the proposed change in the courts order would promote the best interests of the children. The juvenile court did not abuse its discretion in denying mothers section 388 petition.
In re Kimberly F., supra, 56 Cal.App.4th 519, 531.
Mother proffers no other argument to support her assertion that we should reverse the courts September 10, 2002, order granting father physical and legal custody of the children and discharging the children as dependents of the court. The social worker reported that the children were doing well with their father. Mother has given us no basis for reversing the custody order.
DISPOSITION
The judgment is affirmed.
We concur: Hollenhorst, Acting P.J., Richli, J.