Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Fresno County Nos. 97889-2, 3, Jane Cardoza, Judge.
Catherine Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Gomes, J.
L.C. appealed from November 2008 juvenile court orders continuing her teenage daughter’s permanent plan of long-term foster care and her teenage son’s legal guardianship. (Welf. & Inst. Code, § 366.3.) At the post-permanency review hearing, the court also denied appellant’s petitions to regain custody of her children. (§ 388.) After review of the record, appellant’s appointed appellate counsel submitted a letter advising this court that no brief would be forthcoming for lack of an arguable issue (In re Sade C. (1996) 13 Cal.4th 952). At counsel’s request, we extended time for appellant to personally file a letter brief which she since has done. Appellant appears to challenge both the court’s orders continuing the children’s permanent plans and its denial of her section 388 petitions. On review, we find no arguable issue and affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
As appellant states in her brief, this case arose several years ago and has led to many appeals in this court. In 2000, respondent Fresno County Department of Children and Family Services (department) detained these two children and their older sibling when appellant was arrested and charged with domestic violence and child endangerment. Appellant left all three children alone for extended periods of time on a regular basis and exposed them to numerous incidents of domestic violence.
Much of the facts in this summary come from our previous opinions of which we take judicial notice. (Evid. Code, § 459, subd. (a).) (In re A[.]H. et al., F040682; In re A.H. et al., F041324; In re A.H. et al., F043658; In re A.H. et al., F047811; L[.]C. v. Superior Court, F052211; In re A.H. et al., F054193; In re A.H. et al., F053790; and In re A.H. et al., F054630.)
The Fresno County Superior Court (juvenile court) assumed jurisdiction over the children, removed them from appellant’s custody, and ordered reunification services. Despite multiple parenting and anger management classes, as well as outpatient psychiatric treatment for her apparent schizophrenia, appellant had not absorbed much of value for reunification purposes. She still suffered from intense anger and exhibited inappropriate responses to situations, according to her psychiatrist. Despite a trial of low-dose psychotropic medication, appellant still did not make progress. Consequently, in 2003 the juvenile court terminated services and placed the children into long-term foster care. In 2007, the juvenile court changed the youngest child’s permanent plan to legal guardianship. In 2008, the juvenile court terminated its dependency jurisdiction over appellant’s oldest child after she turned 18.
Over the years, appellant has frequently sought without success to either regain custody of the children or reinstate reunification services. Part of the problem for appellant has been that the children’s relationship with her has grown strained due to appellant’s erratic and confrontational behavior. Depending on appellant’s circumstances, the court has repeatedly modified its visitation order from supervised to unsupervised.
By September 2007, the court had reauthorized unsupervised and overnight visits. Following the second such visit, appellant failed to return the children to their respective homes and absconded with them. Once authorities located appellant and the children, appellant was arrested on misdemeanor and felony charges, the children were returned to their homes, and the court reinstituted supervised visits.
Appellant thereafter resumed trying to regain custody or at least unsupervised visits either through her modification petitions or the post-permanency review hearings the court periodically conducted. The current appeal arises out of the court’s latest post-permanency review and modification petitions appellant filed in June 2008 for unsupervised visits and in September 2008 to regain custody.
Appellant prevailed on her request for unsupervised visits at the same hearing the juvenile court denied her petitions to regain custody and continued the children’s permanent plans. Thus, we do not address appellant’s successful petition.
As of the summer of 2008, the children were doing well in their respective homes and appeared happy. There were no medical or emotional concerns for either child. Neither child posed any behavioral problems. Both participated in and enjoyed their respective school’s sports programs as well as made academic progress. Each child remained in a safe, nurturing, and clean home environment.
In the case of the older child who was in long-term foster care, she received services to make the transition from foster care to independent living as she would be turning 18 in the spring of 2009. The department also reported her continued dependency was warranted in that the parents remained unable to provide for her ongoing care and had not ameliorated the conditions that initially prompted the court’s jurisdiction.
Appellant alleged different facts in her modification petitions. According to appellant, the older child was neither happy nor doing well. Foster care had not met her emotional, social, and educational needs. Her living conditions were unstable and constituted a hostile environment. She was attempting to live independently but needed family. She also expressed a desire to have more time with appellant. Further, because the child was older, there would be no detriment to her returning to appellant’s home.
Regarding the younger child, appellant asserted he wanted to be with her. He believed he was not in a good home where he was treated like family and wished to have more time with a loving family. He too was living in a hostile environment.
In both petitions, appellant also alleged the initial reasons for the court’s jurisdiction had been resolved because she obtained a restraining order against the younger child’s father. In her view, he caused the domestic violence which resulted in the children’s out-of-home placement.
At an evidentiary hearing on the post-permanency review and appellant’s modification petitions, the court heard testimony from each child, the current social worker, an aide who supervised some of the family’s visits, and appellant. Although each child loved appellant, neither child wished to live with her.
The older child stated she was comfortable where she was at and she did not want to “start all over” changing schools and friends. Also, most of the time she and appellant argued; they were not able to always resolve their differences. The two of them would have to “learn to get along.” Once before there had been an effort to include appellant in the child’s counseling. However, appellant never participated. She also mentioned appellant did not like the child’s paternal relatives or her friends. Appellant wanted to and had tried to pick and choose her friends.
The younger child believed he was doing well where he was. His foster mother was a paternal relative and she included the child in family holidays and trips. Appellant called him a lot and sometimes would argue with him. The younger child agreed counseling with appellant would help to reduce the number of arguments between them.
The social worker was concerned that due to fighting between appellant and her daughter and because they were not getting along with one another, the older child would suffer emotional harm if she were returned to appellant’s home. It was appellant’s “way or no way at all” which led to fighting and appellant’s yelling at and acting unreasonably toward the children. Appellant could behave inappropriately around the children as well. The social worker also had conversations with appellant during which she was not rational. The social worker had not seen any actual change in appellant. Some days appellant could be rationale and very nice. Other days appellant would cuss the social worker out and fault the department for the children’s removal from her custody. Also, appellant had not acknowledged or dealt with the problems that led to the children’s removal.
Appellant testified she did not see herself as argumentative or controlling. She was just being a parent. Appellant did not think it would be hard on the children to go home with her despite the fact they did not want to do so. Appellant had participated in counseling and did not need medication. She also testified she completed all the court-ordered classes and programs in 2002 or 2003. She believed the anger management and domestic violence classes helped. She also obtained a restraining order against the younger child’s father. Further, there was a conditional settlement of the 2007 charges after she absconded with the children. She was placed on 18 months of probation and if she did not “get into any trouble” “they’ll drop the felony and misdemeanor.”
Following closing arguments, the court denied appellant’s petitions to regain custody. Specifically, the court found there was no showing it would be in either child’s best interests to change their permanent plans. The court found the children very credible and their testimony consistent with prior department reports. With regard to its status review, the court continued the younger child’s legal guardianship as the appropriate permanent plan as well as his dependency status. Regarding the older child, the court found her continued placement remained appropriate and necessary. Also, appellant’s progress had been minimal.
DISCUSSION
Appellant contends there was no evidence of detriment or sufficient risk of harm to warrant the court’s continuation of her daughter’s long-term foster care and her son’s legal guardianship. In her view, the issues underlying the court’s jurisdiction had been resolved. She also complains the court did not request a response to her modification petitions which in her opinion justified the changes she sought. Thus, it appears appellant challenges both the court’s post-permanency review of the children’s dependency and the denial of her modification petitions. Although appellant’s notice of appeal did not cite the denial of her petitions, we will broadly construe her notice of appeal to include such a challenge. (Cal. Rules of Court, rule 8.100 (a)(2).)
Nonetheless, we conclude appellant has failed to raise an arguable issue of reversible error by the juvenile court. (In re Sade C., supra, 13 Cal.4th at p. 994.) At a post-permanency review, the court is not required to make a detriment finding. (In re Dakota H. (2005) 132 Cal.App.4th 212, 225.) It is instead presumed that continued out of home care is in the best interests of the child, unless the parent prove further efforts at reunification are the best alternative for the child. (§ 366.3, subd. (e).) Here appellant neither requested further reunification services nor made a showing that they amounted to the best alternative for the children.
This standard mirrors the standard applicable to petitions to modify under section 388. (Nahid H. v. Superior Court (1997) 53 Cal.App.4th 1051, 1068.) A dependency order may be modified if a person shows a change of circumstances or new evidence which establishes that modification of the prior order is in the child’s best interests. (§ 388.) The moving party, in this case appellant, has the burden of showing by a preponderance of the evidence that modification is warranted. (In re Audrey D. (1979) 100 Cal.App.3d 34, 43.) The juvenile court has broad discretion whether to sustain the petition to modify its prior order. The court’s determination will not be disturbed absent an abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
Having reviewed the record, we conclude appellant failed to sustain her burden under both section 366.3, subdivision (e) and section 388. Her essential claim was that the children were unhappy and not well cared for their respective placements and wished instead to live with her. The evidence, particularly the children’s testimony, did not support appellant’s claims however. To the extent she also claimed there was no longer a basis for jurisdiction, she overlooks the record as summarized above. Despite her participation in services, she had not made much progress in terms of managing her anger and controlling her behavior. She last participated in services when the court in 2003 terminated those services for appellant’s lack of progress. Last, while she blames her son’s father for the children’s removal and cites a restraining order as mitigating the harm, she loses sight of her own level of responsibility for these proceedings.
Therefore, we conclude there is no arguable basis for appellant’s claim that the court abused its discretion.
DISPOSITION
The court’s November 2008 orders are affirmed.