Opinion
F043036.
10-15-2003
In re FELIX T. et al., Persons Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. RANDI R., Defendant and Appellant.
Carol A. Koenig, under appointment by the Court of Appeal, for Defendant and Appellant. B.C. Barmann, Sr., County Counsel, and Jennifer L. Thurston, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Randi R. appeals from orders terminating her parental rights (Welf. & Inst. Code, § 366.26) to her son and daughter. She contends the court erred by denying her petition (§ 388) for return of the children to her care. On review, we disagree and will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In November 2001, the Kern County Superior Court adjudged three-year-old Felix and nine-month-old Alicia dependent children of the court and removed them from parental custody. The court previously determined the children came within its jurisdiction under section 300, subdivisions (a) and (b). The children originally came to the courts attention after Alicia suffered injuries, including a skull fracture, for which appellant could provide no reasonable explanation. Further investigation revealed the children were at risk of suffering substantial physical harm due to the appellants substance abuse and her failure to protect her children from her boyfriend who had a criminal history of violence.
Over the next 12 months, appellant participated in a variety of reunification services, including counseling for substance abuse, child neglect, physical abuse and domestic violence, with varying degrees of success. Her visitation gradually increased in length and became unsupervised. However, by the early fall of 2002, respondent Kern County Department of Human Services (the department) learned that appellant permitted her boyfriend (known as "Eddie") to stay with the children while she was at work. Felix reported that Eddie was mean to him and hurt him. Meanwhile, Alicia sustained bruises on her torso and puncture wounds to the bottoms of her feet which a medical doctor opined were non-accidentally inflicted. Appellant subsequently tried to persuade her female roommate to lie and testify that she was watching the children while appellant was away at work.
Following a November 2002 review hearing, the court found there remained a substantial risk of harm to the childrens safety if returned to their mothers custody. This was despite appellants moderate compliance with services and progress towards alleviating the causes of the childrens out-of-home placement. Further finding no substantial probability that the children could be returned in another six months, the court terminated reunification efforts and set the childrens cases for a section 366.26 hearing to select and implement a permanent plan for them.
Two weeks before the originally scheduled section 366.26 hearing, appellant filed a section 388 petition seeking an order returning custody of the children to her. She alleged she had completed her substance abuse and domestic violence counseling, was participating in on-going "personal counseling," was testing for controlled substances and was in the process of obtaining a temporary restraining order against her former boyfriend. She further claimed a return of custody was in her childrens best interests because she had a strong bond with them. According to appellant, Felix knew her and wanted to maintain a relationship with her and Alicia preferred appellant over the foster mother at visits.
The court granted a hearing on appellants petition, which together with the section 366.26 proceeding, had to be continued until early April. Before the continued hearing date, the department prepared a social study in opposition to appellants petition.
In its social study, the department confirmed much of what appellant had alleged in her petition as changed circumstances. The department, however, observed that appellant still needed to complete another 52 hours of physical abuse counseling. In addition, a social worker who spoke with appellant about the restraining order learned appellant claimed she neither saw or spoke with her former boyfriend since the November 2002 court hearing. She filed for the restraining order in March 2003 to show the court that Eddie would not be around her or the children. A counselor had recommended the restraining order to appellant for that reason. In her application, appellant alleged Eddie had verbally threatened in October 2002 to hurt her. To social workers, she still denied Eddie ever hit her children or her. At most, she would acknowledge it was possible he hit the children but she did not know.
A social worker also spoke with Felix who wanted to stay with his foster mother. He knew this made his mother sad. However, Felix explained his mother "has Eddie to be with her and to hold."
On the date of the continued hearing, the court once again had to grant a continuance, this time because appellant was in jail although scheduled to be cited and released. On the subsequent hearing date, it was undisputed that police arrested appellant for driving under the influence the night before the early April section 366.26 hearing.
Appellant took the witness stand and admitted she had been drinking alcohol that night. She also testified that while she was driving, she hit a parked car. As a further result of her drinking that evening, she failed to go to work or to call in and consequently lost her job.
Appellant, however, denied having an alcohol problem. Instead, she claimed she had a problem dealing with her problems day-by-day, including her childrens dependency. She also acknowledged she did not seek substance abuse treatment since her arrest. She tried to believe she did not have any problems and everything was "okay." However, she guessed she needed to talk about her problems.
Appellant did not think her drinking would impair her ability to take care of her children. "It was just something that [she] did." She denied drinking since her arrest.
There was also a pending criminal case against her for the abuse her daughter had suffered. With the two criminal cases pending against her, appellant believed her mother and the childrens foster mother could help her in caring for the children.
Appellant denied seeing Eddie since the November hearing at which the court terminated reunification services. The foster mother, however, testified she saw appellants car at Eddies home in mid-February. She also saw appellant outside of Eddies home playing basketball another time, some time since the first of the year.
Following argument on the matter, the court denied the section 388 petition and, having found the children adoptable, terminated parental rights.
DISCUSSION
Appellant argues the court abused its discretion by denying her section 388 petition. We disagree. A parent may petition the court for such a modification on grounds of change of circumstance or new evidence. (§ 388, subd. (a).) The parent, however, must also show that the proposed change would promote the best interests of the child. (§ 388, subd. (b); Cal. Rules of Court, rule 1432(c).) Here, the court could properly find appellant did not satisfy her burden of proof.
Section 388 provides in pertinent part:
"(a) Any parent or other person having an interest in a child who is a dependent child of the juvenile court or the child himself or herself through a properly appointed guardian may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court or in which a guardianship was ordered pursuant to Section 360 for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition shall be verified and, if made by a person other than the child, shall state the petitioners relationship to or interest in the child and shall set forth in concise language any change of circumstance or new evidence which are alleged to require the change of order or termination of jurisdiction. [¶] . . . [¶]
"(c) If it appears that the best interests of the child may be promoted by the proposed change of order, recognition of a sibling relationship, or termination of jurisdiction, the court shall order that a hearing be held and shall give prior notice, or cause prior notice to be given, to the persons and by the means prescribed by Section 386, and, in those instances in which the means of giving notice is not prescribed by those sections, then by means the court prescribes."
Whether the juvenile court should modify a previously made order rests within its discretion and its determination may not be disturbed unless there has been a clear abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. 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. (Ibid.)
While appellant may have made a showing of changed circumstances in her petition, the departments reports in opposition and the evidentiary hearing that followed supported a contrary conclusion. What appellant essentially asks this court to do now is to reweigh all of the evidence. However, that is not within our appellate authority. As a reviewing court, we may not reweigh or express an independent judgment on the evidence. (In re Laura F. (1983) 33 Cal.3d 826, 833.)
Additionally, we find that in a proper exercise of discretion, the juvenile court could conclude that appellant failed to show a return of custody at this juncture would promote her childrens best interests. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) To understand the element of best interests in the context of the section 388 motion brought, as in this case, on the figurative eve of a section 366.26 hearing, we look to the state Supreme Courts decision in In re Stephanie M., supra. At this stage, a parents interest in the care, custody and companionship of her children is no longer paramount. Rather, the focus shifts to the needs of the child for permanency and stability, and in fact, there is a rebuttable presumption that continued out-of-home care is in the best interests of the child. A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child. (In re Stephanie M., supra, 7 Cal.4th at p. 317.)
In this case, appellants evidence did not establish that the childrens need for permanency and stability would be advanced by an order returning them to her custody. Indeed, her own admissions regarding her recent driving under influence supports the opposite finding.
DISPOSITION
The orders terminating parental rights are affirmed.