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In re Mahogany

Court of Appeals of California, First Appellate District, Division One.
Nov 21, 2003
No. A102042 (Cal. Ct. App. Nov. 21, 2003)

Opinion

A102042.

11-21-2003

In re MAHOGANY B., a Person Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Petitioner and Respondent, v. ANTOINETTE B., Defendant and Appellant.


Appellant Antoinette B. is the mother of six-year-old Mahogany B. Mahogany is a dependent child of the juvenile court who was ultimately placed in the guardianship of her adult sister, appellants daughter B.W. Appellant twice moved to modify the placement order (Welf. & Inst. Code, § 388) to return Mahogany to her custody with family reunification services. The juvenile court denied both motions. Appellant seeks review of the second, more recent denial order. She argues that changed circumstances and Mahoganys best interests supported the requested modification. We disagree and affirm.

I. FACTS

Appellants ability to parent has been undermined by long-term problems with substance abuse and a lack of stable housing. Her daughter Mahogany entered the juvenile court system in April 1997, when she was three days old. Respondent Contra Costa County Department of Children and Family Services (Department) filed a dependency petition alleging that appellant was failing to protect Mahogany (Welf. & Inst. Code, § 300, subd. (b)) because of drug addiction and a lack of stable housing, and that appellant had lost custody of other children "because of neglect due to drug use."

The juvenile court placed Mahogany in the custody of B.W., her adult half-sister, on May 8, 1997. On May 16, 1997 the juvenile court sustained an amended petition alleging that appellant used illegal substances during her pregnancy (although Mahogany tested negative for drugs at birth); that appellant did not have stable housing for herself and Mahogany; that appellant had lost the custody of two other children because of neglect due to her substance abuse; and that Mahoganys father was incarcerated and unable to care for her.

After a contested dispositional hearing on July 25, 1997 the juvenile court declared Mahogany a dependent child and ordered reunification services for appellant. The court allowed Mahogany to return to appellant on an "extended visit." The Departments dispositional report stated that appellant had been referred to the Born Free outpatient drug treatment program in April and had tested negative for drugs several times in April and early May. But she failed to appear for drug testing on May 16 and May 23 and stopped attending the program. Appellant had also not solved her housing problem, and claimed she had been living with B.W..

In its six-month review report dated January 14, 1998, the Department informed the court that it had been unable to locate appellant in September and October 1997, and had requested that a bench warrant issue. The Department rescinded the request when appellant, who had apparently been living either with B.W. or a family friend, contacted the Department.

Mahogany was still living with appellant on the extended visit. Appellant had found housing, but she lived in a small cottage the Department considered inadequate for appellant and a child. Appellant had enrolled in a residential drug treatment program but left it January 5, 1998 when Mahogany became ill from what appellant thought was a virus caught from another resident. Appellant continued to test negative for drugs. Mahogany was doing well in appellants care. On January 30, 1998, the juvenile court ordered that reunification services continue.

The Department filed a supplemental dependency petition on July 13, 1998. The Department alleged that appellant had not completed her drug rehabilitation program, and had not tested for drugs since February 27, 1998; that appellant had not obtained adequate housing despite receiving a Section 8 certificate; that appellant had not completed a parenting course; and the whereabouts of appellant and Mahogany were unknown. The Department again requested that a bench warrant issue for appellant, and asked that Mahogany be taken into protective custody.

In a report for the jurisdictional hearing on the supplemental petition, the Department noted that appellant had dropped out of numerous drug treatment programs, was not in compliance with her reunification plan, and was probably back on drugs. The Department concluded that appellant "failed her Family Reunification Plan" and was "putting [Mahogany] at risk." The Department recommended that the court terminate reunification services and set a permanency planning hearing under section 366.26 (.26 hearing).

The juvenile court held several contested hearings on the supplemental petition, and ultimately found true the majority of the allegations on April 30, 1999. The Department prepared a dispositional report in May 1999, again recommending that the court terminate services and set a .26 hearing. The Department noted that appellant had failed to complete a drug rehabilitation program despite numerous attempts, and was on the verge of eviction for failure to pay rent for the entire year. Because appellant "failed [to complete] her Family Maintenance Plan. . . . [Mahogany] has suffered. . . . [Appellant] continues to struggle with the problems which led to the Departments initial intervention." The Department noted that Mahogany had been returned to the custody of B.W. on January 7, 1999, and that B.W. expressed an interest in becoming Mahoganys guardian.

The court set a .26 hearing for September 28, 1999. The Departments report for that hearing stated that Mahogany "does not identify [appellant] as her mother." The Department noted that B.W. "has demonstrated an ability to provide a warm and nurturing environment for Mahogany to develop in." The Department recommended the court appoint B.W. Mahoganys guardian.

The juvenile court appointed B.W. the guardian of Mahogany on October 14, 1999. In a report for a review hearing on April 4, 2000, the Department noted Mahogany continued to reside with B.W. and was doing well. Appellant continued to have an unstable living environment, and had been loud and disruptive during visits with Mahogany. Appellant took Mahogany for a day visit and kept her overnight against B.W.s wishes. The court ordered no contact between appellant and B.W. and directed that the Department supervise all visitation.

In a report prepared for the next review hearing on October 6, 2000, the Department noted that Mahogany continued to do well in B.W.s care, and was healthy and comfortable. Appellant had visited with Mahogany in April and May 2000 but missed a visit on June 28 and had not contacted the Department to reschedule. The Department concluded that B.W. was "providing a safe, stable and comfortable family environment in which Mahogany is thriving well." The Department recommended that the permanent plan of guardianship was the most appropriate for Mahogany, and that guardianship should continue.

The next review hearing was initially set for March 23, 2001. The Department reported that Mahogany continued to thrive with B.W., and recommended that the permanent plan of guardianship be continued. Because B.W. and Mahogany no longer needed the Departments supervision, the Department further recommended that the dependency be vacated and the dependency petition be dismissed. The Department noted that B.W. had spanked Mahogany on occasion, but that the Department had admonished B.W. not to discipline Mahogany by spanking. B.W. understood spanking was not acceptable, and there were no signs Mahogany was physically abused.

The review hearing was held April 27, 2001. The court took evidence and determined to follow the recommendations of the Department. The court found that continuing guardianship was in Mahoganys best interests. The court vacated dependency and dismissed the petition.

On April 25, 2002—almost a year later—appellant filed her first petition to modify the juvenile courts orders pursuant to section 388. Appellant presented a March 15, 2002 status report from the Born Free program showing she had begun substance abuse treatment, drug testing and parenting classes on January 3, 2002. Appellant asked the court to order family reunification or family maintenance services, claiming Mahogany would benefit by living alone with appellant.

The Department opposed the 388 petition. In a report to the court, the Department acknowledged that appellant was "currently in the process of making positive changes in her permanent stability." But the Department believed that reunification services would disrupt the stability Mahogany had achieved with B.W. The Department also noted it did not believe appellants allegations that B.W. was interfering with appellants visitation or was not providing adequate care for Mahogany.

Appellants first 388 petition came on for hearing July 3, 2002. Appellant was not present, and apparently had not even told her attorney she would be absent. Appellants counsel presented a proffer of the testimony of an absent witness, B.W.s brother C.W. C.W.s proffered testimony was to the effect that B.W. had smoked marijuana in front of Mahogany on May 31, 2002; that she had a control problem and cursed at Mahogany; that she threw things at Mahogany and spanked her with her hand and a belt; and that she punished Mahogany by making her "remain in a straight-armed push-up position" for 20 to 30 minutes.

Appellants counsel also presented the testimony of Ronnie J., who lived with appellant. Ronnie testified he had heard appellant and B.W. shouting at each other over the phone "during [the] last year"—but he denied ever seeing B.W. obstruct appellants visitation.

Finally, appellants counsel presented a July 2, 2002 status report from Born Free, which indicated appellant was still in the program and had last tested negative for drugs on May 21, 2002. Appellants counsel then rested because appellant was not present to testify.

B.W. called Department social worker Rhonda Smith, who testified that Born Free did not report positive drug tests, only negative ones. Smith further testified that Mahogany did not want to live with appellant, and became "very quiet" and "sullen" when asked it she wanted to. Smith also testified that appellant claimed B.W. was interfering with visitation, but B.W. denied that claim. Appellant had not visited Mahogany since January and did not contact Mahogany on her birthday in April.

B.W. testified that appellant had last visited Mahogany "a week before Thanksgiving 2001." Appellant did not acknowledge Mahoganys birthday. When asked about C.W.s proffered testimony, B.W. denied using drugs, denied forcing Mahogany to remain in a push-up position, and denied hitting her with a belt. B.W. testified C.W. stopped living with her in April 2002 when she moved to a new house. He didnt move along with her "[b]ecause he is irresponsible." C.W. was "very upset" because B.W. stopped supporting him.

The Department called B.W.s other brother, 21-year-old Z.W. Z.W. testified he lived with B.W. and Mahogany. He had never seen B.W. strike Mahogany or force her into a push-up position. B.W. disciplined Mahogany with time-outs. He had never seen B.W., or anyone else at the house, smoke marijuana.

The court ruled that appellants failure to appear at the hearing "speaks volumes in itself. I think it is clear that [appellant], while she loves her children, is not very responsible about following through with her commitments." The court acknowledged the gist of C.W.s proffered testimony but found "the evidence, on a whole . . . is in the other direction . . . ." B.W. "is doing an outstanding job raising" Mahogany. "She has been the one who has stepped up to the plate . . . ." The court also observed the Born Free status report was "less than useless" because the program does not report positive tests.

The court found that neither changed circumstances nor the best interests of Mahogany justified modification, and denied the 388 petition.

Appellant filed a second 388 petition on December 20, 2002, again seeking reunification services with Mahogany. Appellant alleged she "is clean and sober and active in her recovery; . . . works and maintains a stable residence"; and had been visiting Mahogany and was prepared to have her live with her. She also alleged she had seen B.W. abuse Mahogany; B.W. was providing "inappropriate care"; and there was "possible substance abuse" in B.W.s home.

The Department recommended that the court deny the second 388 petition. In a report to the court, the Department noted the various documents appellant submitted as proof of drug rehabilitation participation predated the ruling on the first 388 petition, with one exception. In the Departments view, appellant had failed to show recent actual participation in drug treatment programs. The Department stated that appellants allegations of physical abuse could not be proven, and that B.W. had denied substance abuse. The Department noted Mahogany wanted to stay with B.W.—and that continuing the guardianship was in her best interests.

The second 388 petition came on for hearing March 7, 2003, before the same juvenile court judge who heard the first petition. Appellant was present and called numerous witnesses. Candice W. testified that "[a]bout a couple of years ago" B.W. left Mahogany in the care of a family member who spanked her and forced her in a push-up position. Mahogany was not hurt. Candice did not report the alleged abuse to police or Child Protective Services (CPS). She had not seen B.W. in two years.

Michael B. was appellants ex-fiancé. He testified that in March 2001—apparently right after he was released from prison for auto burglary—he saw B.W. sell someone a small bag of marijuana in her house. In August 2001 he smelled marijuana on her. On that occasion he saw a known drug dealer in her house. Mahogany once told Michael to take her away from B.W.. But Michael never raised any concerns about Mahogany with CPS.

Ronnie J. testified he saw B.W. under the influence of marijuana about two years before the March 2003 hearing. He had not seen B.W. spank Mahogany. He did not see B.W. force Mahogany into a push-up position, but he "heard it." A few months before the hearing he saw Mahogany with a black eye she claimed she got from B.W.. He did not call the police or CPS about the black eye.

Appellant also called Department social worker Lisa Livingston. She had interviewed Michael B. about his allegation of a marijuana sale, but did not ask B.W. to submit to a drug test. Livingston had received a letter from appellants son, Stephan W. stating that a drug dealer named Playa Lee had brought drugs into B.W.s home and had slept in Mahoganys bunk bed. This information did not compel Livingston to ask B.W. to submit to drug testing. Neither Livingston nor anyone who had interviewed B.W. saw signs of drug abuse, so Livingston did not think testing was necessary.

Livingston did interview Mahogany, who told her an adult male named Bob occasionally slept in her bedroom. Livingston interviewed B.W., who did not confirm this claim.

Because B.W. was then living in Alameda County, Livingston asked the Alameda County Social Services Department to investigate. The Alameda County investigation was inconclusive regarding physical abuse of Mahogany, because the Alameda investigator was unable to make direct contact with B.W.. But the investigator contacted Mahogany and reported no outward signs of physical abuse or injury.

Mahogany apparently recanted her story that an adult male slept in her room. When Livingston visited B.W.s home, B.W. told her no one but Mahogany slept in Mahoganys bedroom.

Livingston had no concern Mahogany was being exposed to drugs. She felt Mahogany was safe with B.W.: "The records of [Mahoganys] previous placement in [B.W.s] home indicate that this is a nurturing environment for her. The home appeared to be safe, clean, and [B.W.] appeared to have [a] significant amount of insight into her parenting issues, and [Mahogany] did not indicate any concern to me about her current placement."

Appellant testified. She denied any current problem with substance abuse. She attended church services and Bible study, as well as an outpatient drug treatment program which included a parenting class. She said she had been clean and sober since November 23, 2001. She said she had a stable living situation—she lived in a two bedroom house in Berkeley with Ronnie J. She was working on call through the Manpower program. She was "ready and able" to provide "a clean and sober, stable home" for Mahogany.

The juvenile court ruled that "[m]uch of what we heard today is repetitive of what went on in the contested 388 hearing last summer." The court noted the relationship between B.W. and appellant was strained, and the "family is choosing up sides and going at one another . . . ." The court noted that appellant "has made some very significant improvements in her life" and "is much more stable . . . ." But the court found, from the Departments report and Livingstons testimony, that Mahogany was "in a safe placement" and that there was insufficient evidence to grant the 388 petition.

II. DISCUSSION

A party seeking to modify a juvenile courts dependency order bears the burden of showing by a preponderance of the evidence that (1) new evidence or changed circumstances exist which (2) demonstrate that the modification is in the best interests of the dependent child. (In re Jasmon O. (1994) 8 Cal.4th 398, 415 (Jasmon O.); In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) A request for modification is addressed to the sound discretion of the juvenile court, and will not be disturbed on appeal absent a manifest abuse of that discretion. (Jasmon O., supra, at pp. 415-416; Stephanie M., supra, at pp. 318-319.)

Where more than one inference may reasonably be deduced from the evidence before the juvenile court, we will not supplant the juvenile courts decision with ours. (Stephanie M., supra, 7 Cal.4th at p. 319.) And where conflicting evidence is presented to the juvenile court, we must resolve all conflicts in the evidence in favor of the ruling and "indulge in all legitimate inferences to uphold the courts order." (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) We cannot reweigh conflicting evidence to change a juvenile courts determination in a dependency case. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.)

Appellant argues she demonstrated the changed circumstances of sobriety and stability, which made her ready to "assume her responsibility as a mother." She further argues that modification was in Mahoganys best interests due to the number of witnesses who testified to B.W.s alleged drug abuse and physical abuse of Mahogany, and due to the ultimate goal of family preservation. But the juvenile court judge clearly did not believe the witnesses who testified against B.W.; and we are required to disregard conflicting evidence where, as here, there is substantial evidence to support a trial courts ruling. Despite the goal of family preservation, the juvenile court was required to consider the best interests of Mahogany—as well as her interests in long-term stability. The record demonstrates that the court acted in the best interests of Mahogany.

We find no abuse of discretion. The juvenile court properly denied appellants second request for modification.

III. DISPOSITION

The order denying appellants section 388 petition is affirmed.

We concur: Stein, J., Margulies, J.

Subsequent statutory citations are to the Welfare and Institutions Code unless otherwise indicated.


Summaries of

In re Mahogany

Court of Appeals of California, First Appellate District, Division One.
Nov 21, 2003
No. A102042 (Cal. Ct. App. Nov. 21, 2003)
Case details for

In re Mahogany

Case Details

Full title:In re MAHOGANY B., a Person Coming Under the Juvenile Court Law. CONTRA…

Court:Court of Appeals of California, First Appellate District, Division One.

Date published: Nov 21, 2003

Citations

No. A102042 (Cal. Ct. App. Nov. 21, 2003)