Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J05-00253
McGuiness, P.J.
Joyce M. (appellant) appeals from a juvenile court order denying her Welfare and Institutions Code section 388 petition seeking return of her daughter, Halley M., or, in the alternative, reinstatement of reunification services. She argues that the juvenile court abused its discretion in denying the petition and in placing restrictions on her visits with Halley, who resides with her legal guardians. We affirm the juvenile court’s order.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
Factual and Procedural History
This appeal marks the third time we have been asked to review orders of the juvenile court in this dependency matter. In two earlier appeals, appellant unsuccessfully challenged orders restricting visitation with Halley. (In re Halley M. (June 30, 2006, A111370) [nonpub. opn.]; In re Halley M. (Mar. 20, 2007, A113925) [nonpub. opn.].) We recite only those facts relevant to the issues raised on this appeal.
At appellant’s request, we have taken judicial notice of the records, briefs, and opinions in case numbers A111370 and A113925.
Halley is the 13-year-old biological daughter of appellant and Joseph A. When the events leading to these dependency proceedings took place, appellant was residing in Pomona with her ex-husband, Craig M. Craig is the biological father of Halley’s half-sisters, Rachael and Christen.
On January 29, 2003, Halley and her sisters were taken into protective custody after police discovered a methamphetamine laboratory on the property of the house in which they lived with Craig and his mother. On May 7, 2003, the juvenile court in Los Angeles County sustained an amended petition filed under Welfare and Institutions Code section 300, subdivision (b), on Halley’s behalf by the Los Angeles County Department of Children and Family Services. The court determined, among other things, that appellant had previously been convicted of possession of a controlled substance and had engaged in conduct that endangered the children’s physical and emotional health and placed them at risk of physical and emotional harm. The court also found that appellant created a detrimental home environment by engaging in certain conduct, including threatening suicide and engaging in an ongoing conflict with Halley’s paternal grandmother, which endangered the children’s physical and emotional health and placed them at risk of physical and emotional harm from which Craig failed to protect them. The court declared Halley a dependent child and placed her in the custody of her paternal aunt and uncle in March 2003.
Although Craig is not Halley’s biological father, his name is on her birth certificate and he “raised her as his own.” Halley’s social worker and the juvenile court referred to Craig’s mother as all three girls’ paternal grandmother and his sister as their paternal aunt. We will do so as well.
The juvenile court granted appellant the right to monitored visits with Halley and allowed for the possibility of expanded visitation privileges. The court also ordered appellant to complete a case plan that included parenting education and individual counseling.
In reports prepared for subsequent review hearings, the social worker informed the juvenile court that appellant often missed visits with Halley, sometimes for questionable reasons. Moreover, when she did participate in visits and telephone calls, appellant often acted and spoke in ways that left Halley emotionally distraught. In particular, she often spoke negatively about Halley’s caregivers, made threatening and intimidating statements to Halley and her caregivers, inappropriately discussed or made requests in connection with the juvenile dependency case, and exhibited angry or tearful behavior. Halley’s social worker wrote that appellant’s visits and telephone calls “appear to be a source of significant emotional trauma” for Halley.
At various times, the juvenile court issued orders barring appellant from making “emotionally charged” statements, talking about the case, or harassing, threatening, or intimidating Halley or her caregivers during visits or telephone calls. Further, the court limited appellant to one visit and two telephone calls per month, while giving the social worker discretion to expand that schedule if appellant improved her conduct.
In an August 2003 interim review report, the social worker wrote that appellant had failed to enroll in parenting classes or to participate in individual counseling. Appellant’s living situation was described as unstable. As of November 2003, appellant continued to resist complying with court orders and her case plan objectives, claiming she had done nothing wrong. She had moved at least four times during the reporting period and did not appear to have means of financial support.
Appellant was living in Florida as of June 2004. She claimed to have attended two counseling sessions while in Florida, although she failed to provide proof of her participation. She continued to assert she was not responsible for Halley’s dependency and refused to complete a parenting class. At the twelve-month review hearing in July 2004, the juvenile court found that appellant was not in compliance with her case plan and terminated her reunification services.
Meanwhile, Halley had adjusted well to living with her caregivers. Her social worker, therapist, and teacher all noted her significant social, mental, and academic progress under their guidance. On November 2, 2004, the juvenile court in Los Angeles County conducted a section 366.26 permanency planning hearing at which it appointed Halley’s paternal aunt and uncle as her legal guardians. In January 2005, the court transferred the case to Contra Costa County, where Halley and her legal guardians reside.
On July 27, 2005, the Contra Costa County juvenile court held a contested hearing on appellant’s request for additional visits with Halley. Finding no evidence that additional visits were beneficial to Halley, the court denied appellant’s request and suspended telephone calls. However, the juvenile court continued to permit appellant one monitored visit with Halley per month, with at least half of the visits to be joint counseling sessions, and it allowed for the possibility of additional visits and telephone calls in the future should their relationship improve with therapy. Appellant appealed from the court’s order in case number A111370. In an unpublished opinion filed June 30, 2006, we affirmed the juvenile court’s order, finding that it acted well within its discretion in denying appellant’s request for additional visits and in suspending telephone contact. (In re Halley M. (June 30, 2006, A111370) [nonpub. opn.].)
The juvenile court held the next review hearing on April 11, 2006. Halley’s social worker informed the court that Halley was thriving in the home of her legal guardians, was in good health, was doing very well in school, and wanted to attend college. With regard to visitation issues, the social worker reported that Halley enjoyed the one hour per month supervised visit with her mother. A mental health professional and Halley’s therapist concurred that it was not beneficial to Halley or in her best interest to do conjoint therapy with appellant once a month. At the review hearing, appellant’s trial counsel requested that monitored visitation be at least once per month and that conjoint therapy occur in addition to her client’s monthly monitored visitation. The court agreed to permit appellant supervised visits with Halley for a minimum of one hour one time per month. The court also ordered therapeutic visits in addition to the supervised visits once a therapist would agree to provide such visits consistent with Halley’s best interests. Appellant appealed from the order in case number A113925, claiming the juvenile court abused its discretion by overly restricting her contact with her daughter. We affirmed the juvenile court’s order in an unpublished opinion filed March 20, 2007. (In re Halley M. (Mar. 20, 2007, A113925) [nonpub. opn.].)
In the report prepared for the next scheduled review hearing, Halley’s social worker stated that Halley was happy, had many friends, and enjoyed life. The social worker reported that appellant had given Halley her e-mail address during a visit for the purpose of encouraging contact outside of their monitored visits. Appellant apparently pressured Halley to communicate with her by e-mail, stating, “If you love me you will.”
Halley identified her legal guardians as an important part of her life and indicated she would like to remain in the placement permanently. She enjoyed the visits with her mother and expressed her wish to continue the supervised visits. Halley’s social worker reported that appellant continued to have difficulty maintaining boundaries and meeting court-ordered visitation orders. The social worker believed it was important for Halley to maintain a relationship with her mother and siblings but expressed concern about their pattern of intimidation, threats, and coercion. The social worker recommended that the legal guardianship remain in place and that the juvenile court vacate the dependency proceedings and dismiss the petition.
Before the court held its review hearing to consider the social worker’s recommendations, appellant filed a section 388 petition on December 6, 2006, requesting the return of Halley to her care, or in the alternative, further reunification services. She asserted that circumstances had changed in that she had completed a day-long parenting class, had attended individual therapy, and had continued to visit with Halley. She claimed the requested changes would be better for her daughter, who purportedly sought to be returned to her mother. The social services agency opposed the petition in a memorandum to the court, stating that appellant continued to show poor judgment during supervised visits.
The contested status review and the section 388 petition were heard together on January 11 and February 7, 2007. Halley testified in chambers, outside of appellant’s presence. Consistent with the social worker’s report and her attorney’s statements to the court, Halley stated she wished to remain with her legal guardians, where she had been living for the previous four years. She explained that she enjoyed visits with appellant but preferred that they remain supervised. When asked how frequently she wished to visit with her mother, Halley responded that once a month “is good.” And, although she recalled writing a letter two years earlier in which she had asked to live with appellant, Halley denied recently expressing a desire to live with appellant. She wanted the juvenile court to close her case.
Appellant testified and stated she had made it to 26 out of a possible 29 visits. According to appellant, Halley always greeted her happily, told her she loved her, and gave her hugs and kisses. Appellant claimed Halley told her many times that she wished to live with her, including most recently at a visit on December 20, 2006. She believed Halley’s testimony before the court was inconsistent with how she truly feels. She claimed to have completed a day-long parenting class and stated she had been participating in individual therapy once a month since June 2006, at her expense. Appellant denied any responsibility for Halley being removed from her, stating she had discussed Halley’s “wrongful removal” during the course of her therapy sessions. Since August 2006, she had been taking care of a property in Big Sur, where she had a separate house of her own. She claimed she could provide an appropriate home for Halley.
Halley’s social worker testified that supervised visitation was necessary because appellant continued to have problems maintaining boundaries. She stated that appellant would talk about the case with Halley during visits. In addition, Halley had expressed a concern that appellant would show up “anywhere” to see her without permission, and Halley found it hurtful that appellant made disparaging remarks about her legal guardians.
The social worker was shown a poem and two letters written by Halley. In the poem and in one of the letters, Halley expressed her love for her mother but did not indicate a desire to live with her. In another letter, purportedly written sometime around April 2006, Halley stated she wanted to live with her mother. When asked whether the letters and poem changed her mind about whether Halley should be returned to her mother, the social worker responded they did not. She explained that Halley wished to remain with her legal guardians even as she acknowledged that Halley loved her mother and wished to have a relationship with her. The social worker stated that visits between Halley and her mother could be facilitated even if the court were to dismiss the dependency case.
At the conclusion of the hearing, the court denied appellant’s section 388 petition, finding that it would not be in Halley’s best interest to grant the petition. Among other things, the court noted that appellant had a “history of unstable aggressive behavior, [and] a history of mood swings, chaos and turmoil” that was evident from the materials reviewed by the court. The court followed the social worker’s recommendation and continued the legal guardianship, vacated the dependency, and dismissed the juvenile dependency petition. Halley’s legal guardians were directed to arrange for reasonable, professionally supervised visitation between Halley and appellant. Appellant timely appealed the court’s order.
Discussion
1. The juvenile court did not abuse its discretion in denying appellant’s request for custody or further reunification services.
Appellant contends the juvenile court abused its discretion by denying her section 388 petition. We disagree.
Section 388 allows a parent in a dependency proceeding to petition the juvenile court to change, modify, or set aside any previous order. (§ 388, subd. (a).) The parent must show by a preponderance of the evidence that (1) there is new evidence or a change in circumstance, and (2) the proposed modification would be in the best interest of the child. (§ 388, subds. (a) & (c); In re Stephanie M. (1994) 7 Cal.4th 295, 317.) A section 388 motion “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. [Citations.]” (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) A court exceeds the limits of legal discretion if its determination is arbitrary, capricious, or patently absurd. (In re Stephanie M., supra, 7 Cal.4th at p. 318.) The appropriate test is whether the court exceeded the bounds of reason. (Id. at pp. 318-319.) “ ‘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.’ [Citation.]” (Id. at p. 319.) The denial of a section 388 motion rarely merits reversal as an abuse of discretion. (See In re Kimberly F. (1997) 56 Cal.App.4th 519, 522.)
When a section 388 petition is filed following the termination of reunification services, as in this case, the juvenile court must recognize a “shift of focus” in determining the best interests of the child. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) After services have been terminated, “the parents’ interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point ‘the focus shifts to the needs of the child for permanency and stability’ [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. [Citation.]” (Ibid.)
Appellant contends she demonstrated a change of circumstances, claiming she “completed her case plan” and had a home and the financial means to take care of Halley. Like the juvenile court, we are not persuaded that appellant proved that circumstances had changed. Appellant had attended a one-day parenting class in 2005 and had participated in six therapy in as many months prior to the review hearing in early 2007. Instead of completing her case plan, as appellant contends, she was just beginning to take advantage of the types of services she had spurned years earlier. Further, with regard to her contention she had a home and the financial means to support Halley, that development was a recent one, with appellant having secured her position taking care of a property in Big Sur just months before the review hearing.
While appellant is to be commended for her efforts, her “circumstances were changing, rather than changed.” (In re Casey D. (1999) 70 Cal.App.4th 38, 49.) At most, she showed she was finally making an effort to meet the goals established for her almost four years earlier. A showing of changing circumstances, as opposed to changed circumstances, is not enough to justify or require returning a child to a parent. (See In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) Granting a section 388 petition based on such a showing merely delays 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. (In re Casey D., supra, 70 Cal.App.4th at p. 47; see also In re Marilyn H. (1993) 5 Cal.4th 295, 310 [“Childhood does not wait for the parent to become adequate”].) This consideration is particularly compelling here, where appellant seeks to remove Halley from a home where she has resided for four years—and where she has been thriving, according to her social worker.
Even if we were to conclude appellant had demonstrated a change in circumstances, we would still agree with the juvenile court that appellant failed to show by a preponderance of the evidence that the proposed modifications would be in Halley’s best interest. In support of this prong of the section 388 test, appellant alleged Halley would prefer to be returned to her care. This allegation was contradicted by Halley herself when she testified in chambers. She unequivocally stated she wished to remain with her legal guardians.
Appellant’s evidence to the contrary consisted of letters and poems Halley had written expressing love for her mother. Halley acknowledged writing a letter at one time indicating she wished to live with her mother. However, she also testified she had not made any recent statements expressing a desire to live with her mother. Indeed, she made clear that she wished to have her relationship with appellant continue only through supervised visits. Contrary to appellant’s assertion that Halley had not expressed her true wishes at the review hearing, the juvenile court found she stated “exactly what she wanted” without equivocation and without pressure by any of the parties.
Moreover, the evidence showed that Halley was doing well in her placement with her legal guardians, with whom she had lived for four years. It was not an abuse of discretion for the court to maintain the status quo in light of the fact Halley was doing well in her longstanding, stable placement, which she expressly preferred over being returned to her mother.
The case of In re Kimberly F., supra, 56 Cal.App.4th 519, on which appellant relies, does not compel a different conclusion. In Kimberly F., the appellate court identified three factors to be evaluated in determining whether to grant a section 388 petition: “(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of the 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 Kimberly F., supra, 56 Cal.App.4th at p. 532.)
The children in Kimberly F. were removed from their mother’s house because of its unsanitary condition. (In re Kimberly F., supra, 56 Cal.App.4th at pp. 521-522.) The appellate court determined the juvenile court had abused its discretion in denying the mother’s section 388 petition when the mother had demonstrated the home had been cleaned up. (In re Kimberly F., supra, 56 Cal.App.4th at p. 532.) Moreover, there was an “undisputedly strong bond” between the children and their mother, such that the children did not want to be adopted by their caretakers. (Ibid.)
The factors that persuaded the appellate court in Kimberly F. to reverse the juvenile court are not present here. Unlike the mother in Kimberly F., who was able to correct the problem that led to the dependency, appellant has been less than successful in doing so. She discounts her role in the circumstances that led to the detention of her children, claiming she had no involvement in the methamphetamine laboratory found on the property where her children were residing. But the fact remains that the juvenile court based its jurisdictional finding in part on the fact appellant created a detrimental home environment by engaging in behavior that placed her children at risk of emotional harm, including threatening suicide and engaging in an ongoing conflict with the paternal grandmother. The issue is not, as appellant contends, whether she was ever suicidal or whether she is no longer in a position to interact with Halley’s paternal grandmother. Rather, the proper inquiry is whether appellant has continued to engage in the types of inappropriate behavior that led to the removal of the children from her care. Plainly, she has. Throughout the dependency, she has continued to act in a harassing and intimidating manner, which has long been a source of emotional trauma for Halley. Perhaps most troubling is the fact that appellant continues to deny any responsibility for Halley being removed from her care. In that sense, little has changed over the course of Halley’s dependency.
With regard to Halley’s bond with her mother, Halley’s testimony establishes that the bond is not so strong as to justify returning her to appellant’s care. While Halley’s actions and words showed her love for her mother, she also stated she wished to remain with her legal guardians and to have only supervised and limited visits with her mother.
Thus, an application of the Kimberly F. factors does not compel reversal of the juvenile court’s order denying appellant’s section 388 motion. This conclusion applies not only with respect to appellant’s request to have Halley returned to her care, but also to her request for further reunification services. At this point, long after appellant’s reunification services were terminated in July 2004, the focus is on Halley’s need for permanency and stability, not on reunification. (See In re Marilyn H., supra, 5 Cal.4th at p. 309.) Appellant has not met her burden to establish it would be in Halley’s best interest to extend this longstanding dependency proceeding in order to allow appellant, who repeatedly failed to reunify with Halley, yet another attempt to do so.
2. The juvenile court did not abuse its discretion in ordering reasonable supervised visitation between appellant and Halley.
Appellant contends the court abused its discretion in limiting appellant’s contact with Halley to a monitored and monthly basis. We have addressed the visitation issue in the two previous appeals. We once again conclude the juvenile court acted within its discretion in limiting appellant’s visitation with Halley.
As stated in our two previous opinions, our review is governed by the abuse of discretion standard. (In re Halley M. (June 30, 2006, A111370) [nonpub. opn.] at p. 4]; In re Halley M. (Mar. 20, 2007, A113925) [nonpub. opn.] at p. 6.) Trial courts are vested with broad discretion in matters concerning visitation. (In re Megan B. (1991) 235 Cal.App.3d 942, 953.) Upon terminating its jurisdiction, the juvenile court may deny visitation or impose conditions on visitation based on the best interests of the child. (See In re Chantal S. (1996) 13 Cal.4th 196, 203-204; In re Jennifer R. (1993) 14 Cal.App.4th 704, 712.) In fashioning an appropriate visitation order, the court may consider the “ ‘possibility of adverse psychological consequences of an unwanted visit between mother and child.’ [Citation.]” (In re Julie M. (1999) 69 Cal.App.4th 41, 50.)
We see nothing in the record since we last reviewed this matter to change our conclusion about the propriety of the restrictions placed on appellant’s visitation with Halley. Appellant has continued to engage in some inappropriate behavior during her visits with Halley. Although Halley enjoys the visits, she prefers that they be monitored. Under the circumstances, we can find no abuse of discretion in the juvenile court’s decision to continue in place restrictions on visitation following termination of the dependency.
Disposition
The juvenile court’s order is affirmed.
We concur: Pollak, J., Siggins, J.