Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Ct. No. CK55381, Marilyn Mackel, Commissioner. Affirmed.
Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Aleen L. Langton, Deputy County Counsel, for Plaintiff and Respondent.
WILLHITE, J.
Mother M.R. appeals from the trial court’s denial of her Welfare and Institutions Code section 388 petition. The petition asked the court, inter alia, to reinstate family reunification services with regard to five of mother’s children: daughters R.F. (born November 1990), N.R. (born January 1995), and O.R. (born May 2002), and sons A.R. (born August 1996) and K.R. (born September 1999). We affirm.
All undesignated section references are to the Welfare and Institutions Code.
The fathers of the children are not involved in this appeal.
PROCEDURAL AND FACTUAL BACKGROUND
In September 2004, the Los Angeles County Department of Children and Family Services (Department) filed a section 300 petition regarding mother’s children alleging that mother physically abused N.R. and that mother’s conduct endangered all the children. The Department later filed a section 342 petition as to N.R. alone, which (as amended) alleged that mother abused N.R. by, among other things, intentionally breaking her arm and inflicting knife-tip shaped burn marks on her body.
Besides the five children as to whom Mother’s section 388 petition was directed, the Department’s section 300 petition named two other children, daughter G.F. and son J.R. The petition was ultimately dismissed as to G.F. because she turned 18 years old shortly after the petition was filed. The court assumed jurisdiction over J.R., but he turned 18 in May 2006 and moved back in with mother during the pendency of the case. The court thereafter ordered him placed him there. Because mother’s section 388 petition did not involve these children, we do not mention them further.
Section 342 authorizes the filing of a subsequent petition alleging new facts bringing a minor within section 300.
In reports filed with the dependency court before adjudication of the petitions, the Department stated that when examined in September 2004, N.R. (then 9 years old) had numerous burn marks on her wrist, legs and feet, some of which were open sores, bearing the distinctive outline of a knife tip. She had a black eye and bruises on her back, arms, legs and feet. She was underfed and dirty. Several weeks earlier, she had been treated in a hospital emergency room for a fractured arm. The examining physician stated that N.R.’s various injuries could not have been self-inflicted. Mother denied any knowledge of how N.R. had suffered her injuries, and stated that N.R. often hurt herself.
Initially, N.R. stated that Mother had burned her with a knife, but she did not want Mother to get in trouble. Later, N.R. refused to answer questions about the alleged abuse, and claimed that she had previously lied. Mother said that N.R. made false statements to get others in trouble. With the exception of O.R. (age 2), who was too young to make a statement, the other children denied that mother abused them or N.R. The assigned caseworker concluded that N.R. “is the outcast in her family and that the mother and her siblings have all rallied around to protect this family secret.”
In February 2005, the court sustained the allegations of the section 300 and 342 petitions (with minor amendments), and declared all the children dependants under subdivisions (a), (b), and (c) of section 300. It additionally declared N.R. a dependent under subdivision (i), and her siblings dependants under subdivision (j).
At the time, Mother was incarcerated on pending criminal child abuse charges related to N.R.’s injuries. Under section 361.5, subdivision (b)(6), the court denied Mother reunification services with N.R. It ordered reunification services with the other children, and closely monitored visitation. It also ordered Mother to participate in individual counseling and parenting classes. Under section 356.5, the court appointed child advocates (CASAS) for each of the children.
Section 361.5, subdivision (b)(6) provides in relevant part that reunification services need not be provided to a parent when the court finds by clear and convincing evidence “[t]hat the child has been adjudicated a dependent [under section 300] as a result of . . . infliction of severe physical harm to the child . . . by a parent . . ., and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent.”
A CASA represents the child’s interest and has the same duties and responsibilities as a guardian ad litem. (§ 356.5.)
For the six-month review hearing held in September 2005, the Department reported that Mother was attending parenting classes while incarcerated, but was unable to attend individual counseling because there were no openings. The children were in foster homes (A.R., K.R. and O.R. in one home, R.F. and N.R. in separate homes) and doing well there. The children were meeting together weekly for family therapy and (with the exception of O.R.) receiving individual therapy. The therapists noted that the children had “tremendous difficulty talking about the abuse that happened” though some had “shared some of what they witnessed in their individual sessions but have not . . . in the family sessions.”
The court continued Mother’s reunification services with all children but N.R. to March 2006. The court also ordered that Mother was to have monitored visits with all children except N.R. in a therapeutic setting. In the meantime, in her criminal case, Mother was convicted (apparently by plea) of one count of felony child abuse. (Pen. Code, § 273a, subd. (a).) She was placed on probation with credit for time served.
In May 2006, at the 12-month review hearing, the court terminated Mother’s reunification services as to R.F., O.R., A.R., and K.R. Mother had enrolled in anger management classes and had been attending individual therapy. However, as of March 2006, Mother’s therapist reported that despite six months of counseling, Mother was still unable to accept any responsibility for the abuse inflicted on N.R., and denied that the abuse occurred. She also demonstrated a lack of insight as to what was required to reunify with her children. The CASAS for all the children recommended termination of reunification services, as did the Department, and adoption of a permanent plan. At the May 2006 hearing, the court ordered R.F. into a permanent planned living arrangement, and set A.R., K.R., and O.R.’s cases for a section 366.26 hearing.
In a September 2006 status review report, the Department reported that Mother stated that she was remorseful for her actions against her children, and that her classes had helped her understand the source of her anger and helped provide more appropriate ways to express her frustrations. Mother contacted the assigned case worker on a weekly basis to discuss her progress. However, in a March 2007 report, Mother’s therapist reported only minimal progress. In the prior four months, Mother had “taken baby steps towards accepting responsibility for the abuse she inflicted on [N.R.].” Mother admitted spanking N.R., but denied causing any serious injury, and continued to “minimize her actions or blame[] her older children for her abusive actions.” Mother had made only “some progress” in parenting skills “as evidenced by her being able to verbalize appropriate parenting techniques for various problematic situations.”
In August 2007, Mother gave birth to another son. In the meantime, as of October 2007, the children were happy in their foster placements. As of February 2008, all the children’s CASAS reported that the children wished to remain in their foster homes. The Department so recommended.
For the contested section 366.26 hearing in February 2008 for all the children, the Department recommended that N.R. be ordered into legal guardianship with her current caregiver, that R.F.’s case be continued to assess the appropriateness of a more permanent plan with her current caregiver, and that A.R., K.R. and O.R.’s cases be continued to permit the Department to identify an adoptive family. The court, however, took the section 366.26 hearing off calendar, and ordered all the children into permanent planned living arrangements.
For the post-permanency planning review hearing scheduled for April 2008, the Department reported that all the children remained stable in their placements. R.F., then 16 years old, was doing well in school. N.R., then 12 years old, appeared to have stabilized in her foster home. A.R. was 11 years old and experienced episodes of anger and disrespect, but responded to the foster family’s discipline. He was doing well in school, as was K.R., who was 7 years old. O.R., then 5 years old, was also enjoying school. The children had monitored visits with Mother and her newborn son once or twice a month. The visits went well.
For the review hearing, the CASAS for the children also submitted reports. The CASA for R.F. reported that R.F. enjoyed living in her foster home and wanted to remain. According to the report, R.F. was “in a home that provides stimulation and the warmth she desires, along with the expectations and accountability she needs.” The foster parents did not wish to adopt R.F. or become her legal guardians, and R.F. agreed with their position. R.F. also wished to have extended visits with Mother and her siblings. R.F.’s attorney concurred in R.F.’s wishes, and recommended that R.F. remain placed in the foster home and receive expanded visitation.
The CASAS for A.R., K.R., and O.R. reported that the children wished to remain in their foster placement. They wanted to visit with their new baby brother more often, but did not want to live with him in Mother’s home. One of the children’s therapists stated that outbursts of bad behavior by the children “seem to manifest themselves after their visits with their mother.” The foster mother reported that after a visit with Mother in February 2008 at a McDonald’s restaurant, A.R. told her in confidence that his father had come up to him while the foster mother was at the cash register, hugged A.R., said he loved him, and given him $20. At a March 2008 meeting between the children and Mother at a McDonald’s, a man was hovering nearby. A.R. whispered to the foster mother that the man was his father. The CASAS for the children concluded that A.R., K.R. and O.R. were “bonded with their foster family and consider them their family, knowing they have siblings and a mother who doesn’t live with them. The children have stated . . . that although they do not mind visiting with their mother and their new baby brother, they do not want to live with them. . . . [T]he children have good values instilled in them and [this is due] to the care the children are receiving in the home of their foster mother.” The CASAS recommended that the children remain in the foster home.
At the April 2008 review hearing, Mother filed a section 388 petition. She requested that the court reinstate reunification services as to R.F., N.R., A.R., K.R., and O.R., allow unmonitored visitation with the children, and increase the frequency of visitation. Mother alleged the following changed circumstances: “All minors are in a PPLA [permanent planned living arrangement]. All .26 hearings are ‘off calendar’ as of 2/11/08. [N.R.] has objected to a guardianship by her current caretaker. Mother completed 52 weeks of Anger Management classes. Mother twice completed Parenting courses for Non-violent child raising. Mother participated regularly in her therapy, and has begun to take responsibility for her actions in this case. Visits have been going well.”
The petition had not actually been filed by the time of the hearing. The court, however, deemed it filed and ruled on it without objection by Mother’s counsel.
Mother alleged that the requested modifications would be in the children’s best interests for the flowing reasons: “Due to [R.F.’s] age, [N.R.’s] lack of consent, and the other minors’ foster parents’ wishes, all the children are only in a permanent plan of long-term foster care. Mother has complied with [the] Court’s orders, and has complied consistently with her limited visitation orders. Mother, through her compliance, has demonstrated her commitment to her children, and it seems that only she can provide a permanent home.”
Attached to the petition was the March 2008 letter from Mother’s therapist noting her minimal progress, two certificates of completion (dated December 2005 and February 2006) from Parenting Classes in the Philosophy of Nonviolent Child Raising, and a progress report from the Family Harmony Anger Management Program dated January 2007 noting that Mother had attended 52 sessions.
At the hearing, Mother’s counsel outlined the same facts as alleged in the petition and the requested modifications. The Department recommended unmonitored visitation with R.F., but opposed any change in visitation with the other children, especially in light of the report from counsel for A.R., K.R. and O.R. stating that A.R.’s father was present at two meetings with mother. Counsel for the Department suggested that although Mother was apparently in compliance with her case plan, she might well have brought the father to the meetings, raising “the issue is whether . . . she has really learned anything in terms of having monitored visits or permitting contact with anyone.” Mother’s counsel stated that Mother denied bringing anyone to the meetings. Counsel for the children concurred in the Department’s request that the orders remain the same, noting that A.R.’s therapist believed that A.R.’s aggressive behavior was related to visits with Mother.
Ruling first with respect to R.F., A.R., K.R., and O.R., the court granted unmonitored visits with R.F, but denied them as to A.R., K.R. and O.R. According to the court, it did so “for what was stated by county counsel. It’s not at the same point what we can do in terms of the younger children at all.” The court also denied the request to reinstate reunification services. “We are not going to reinstate reunification services at this time. We do not find that will be in the best interest of the children under the circumstances, history and factual circumstances in this case and the Mother is going to have unmonitored visits with [R.F.].” Later, as to N.R., the court likewise denied reunification and the request to liberalize visitation.
DISCUSSION
Mother contends that the dependency court erred in summarily denying her section 388 petition. We disagree.
Section 388 petitions “are to be liberally construed in favor of granting a hearing to consider the parent’s request. [Citations.] The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.]” (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.) “There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. [Citation.] 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. [Citation.] We review the juvenile court’s summary denial of a section 388 petition for abuse of discretion.” (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
Here, construing Mother’s petition liberally, the dependency court did not abuse its discretion in summarily denying it. The petition did not present a genuine change of circumstances showing that the requested modifications were in the children’s best interests.
In February 2005, when the court sustained the dependency petitions and assumed jurisdiction over the children, the court denied Mother reunification services as to N.R. under section 361.5, subdivision (b)(6), based on Mother’s infliction of severe physical harm on N.R. and the absence of benefit to N.R. of pursuing reunification. Also because of the abuse of N.R. and the risk of harm (physical and psychological) to the other children, the court ordered monitored visitation with R.F, O.R., A.R., and K.R. In May 2006, when the court terminated Mother’s reunification services as to R.F., O.R., A.R., and K.R., Mother had enrolled in anger management classes and had been attending individual therapy. But her therapist reported that despite six months of counseling, Mother was still unable to accept any responsibility for the abuse inflicted on N.R., and denied that the abuse occurred. She also demonstrated a lack of insight as to what was required to reunify with her children.
At the time of her section 388 petition in April 2008, little had changed regarding the reason the court had assumed jurisdiction, limited visitation, and denied reunification services. Mother had completed anger management classes in January 2007 and parenting counseling twice (in December 2005 and February 2006). She had also regularly attended individual therapy. As explained by her therapist, however, the goal of her treatment “was to process and accept responsibility for the severe physical abuse she inflicted on [N.R.], and in turn develop her parenting skills to provide a better quality of life for her children.” As stated in the most recent report from her therapist (dated March 2008), a copy of which was attached to Mother’s section 388 petition, Mother had only begun to take “baby steps towards accepting responsibility for the abuse she inflicted on [N.R.]. Even though [she] accepted some responsibility for the abuse she inflicted on her daughter, she continued to minimize her actions or blamed her older children for her abusive actions.” Further, she had made only “some progress towards building her parenting skills.” Thus, even after completing anger management and parenting classes and regularly attending therapy, and more than two years after the court had sustained the dependency petitions regarding her children, Mother still was not close to ameliorating the core reason behind the orders she sought to modify.
In light of Mother’s undisputed lack of real progress, none of the other alleged changed circumstances cited by Mother justified an order for reunification services for any of the children, or liberalized visitation with the exception of R.F. Even assuming Mother’s current visitation with the children was going well (a point the Department disputed at the hearing), it still did not suggest that the underlying problems with Mother’s parenting ability had been solved. The court liberalized visitation with R.F., who was then 16 years old, but determined that the younger children (ages 5 through 12) were not in the same position as their older sibling. No abuse of discretion appears in that determination. That N.R. (who was 12 years old) currently objected to legal guardianship by her foster parents is not determinative. On occasion, during the course of her case, she had changed her mind as to with whom she wished to live -- understandably so, given the physical and psychological problems she endured because of Mother’s abuse. Moreover, the Department’s most recent report stated that she had stabilized in her current placement, and the court could reasonably determine that the possibility of upsetting that stability by liberalized visitation with Mother and imposition of reunification services was not in N.R.’s best interests.
Moreover, although the children were in permanent planned living arrangements and the section 366.26 hearings were off calendar, these circumstances did not undermine the reasons for the court’s denial of reunification services and reluctance to liberalize visitation with all the children but R.F. Mother contends that reunification was the best alternative for the children. The dependency court, however, could reasonably determine that Mother’s minimal progress in accepting responsibility for the terrible abuse inflicted on N.R. and in developing her parenting skills suggested that reunification would not serve the best interests of the children. We conclude that the court did not abuse its discretion in determining that mother failed to alleged changed circumstances showing that the requested modifications would be in the children’s best interests.
DISPOSITION
The order denying the section 388 petition is affirmed.
We concur: EPSTEIN, P. J. SUZUKAWA, J.