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In re Nikolas A.

California Court of Appeals, Fourth District, Second Division
Jul 24, 2008
No. E043154 (Cal. Ct. App. Jul. 24, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County No. RIJ107410, Christian F. Thierbach, Judge.

Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.

Janette Freeman Cochran, under appointment by the Court of Appeal, for Minor.


OPINION

HOLLENHORST, J.

Appellant Michelle S. (mother) contends that the juvenile court abused its discretion in denying her Welfare and Institutions Code section 388 petition as to her son, Nikolas A. She further argues that the court erred in terminating the dependency and placing Nikolas with his father. We affirm.

All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted.

Nikolas’s father is not a party to this appeal.

Counsel for Nikolas filed a letter brief on December 31, 2007, asking this court to affirm the juvenile court’s order.

FACTUAL AND PROCEDURAL BACKGROUND

The original dependency proceeding involved Nikolas and his half brother, G.S. (the children). The children first became the subjects of referrals to the Riverside County Department of Public Social Services (the department) when mother gave birth to G.S. prematurely in December 2003. Mother was bipolar and was taking medication. Before being discharged from the hospital after giving birth, she had panic attacks and attempted to remove her intravenous needles. The department filed a section 300 petition with regard to G.S. on February 11, 2004. Nikolas was subsequently added to an amended petition on February 25, 2004. Nikolas was 13 years old at the time. The amended petition alleged that the children came under section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). Specifically, the amended petition alleged that mother and Nikolas’s father, Rene A. (father), engaged in acts of domestic violence, and that father did not live with Nikolas and failed to provide for him. Father’s whereabouts were unknown at the time. (The petition made the same allegations against the father of G.S.) The court adjudged the children dependents of the court, allowed mother to retain custody, and placed the matter in family maintenance status.

The department filed a second amended petition on March 4, 2004. Father contacted the department in attempts to gain custody of Nikolas, but he did not follow through.

The court subsequently granted mother an extended visit with the children, to be with a family friend in Kansas. It also ordered the social worker to facilitate an expedited Interstate Compact for the Placement of Children (ICPC) evaluation with the State of Kansas. Mother became involved in various programs in Kansas and did well there. Nikolas wanted to stay in Kansas. The department recommended termination of the dependency upon the approval of the ICPC from Kansas.

On August 13, 2004, mother’s boyfriend stabbed G.S.’s father (mother’s estranged husband) in her apartment. The responding police officers reported to the Kansas Department of Social and Rehabilitation Services that the apartment was very dirty, and the floor was covered with old food and trash. As a result, the children were returned to California.

The department filed a section 387 petition on August 23, 2004, alleging the stabbing incident and mother’s failure to protect G.S., who was sleeping in the bedroom where the altercation took place. The petition contained no allegations against father. The social worker interviewed father on August 17, 2004, and he stated that he could provide Nikolas with stability. He was now married with three children, and he and his wife were willing to have Nikolas and G.S. placed with them. The children were detained in foster care. The court authorized visitation between Nikolas and father.

In a jurisdiction/disposition report dated September 15, 2004, the social worker reported that Nikolas wanted to return to Kansas to live with mother. Father said he did not want Nikolas to feel like he was being forced to live with him, but just wanted him to feel welcome. The social worker recommended overnight visits with father so they could become acquainted.

On September 15, 2004, the court continued Nikolas and G.S. as dependents and placed the case in family reunification status. The court authorized overnight visits between Nikolas and father to occur every other weekend. The social worker subsequently submitted a case plan, which required mother to participate in a domestic violence treatment program, comply with psychotropic medication prescriptions, participate in individual counseling, and complete a parenting education program. The case plan only required father to participate in conjoint counseling sessions with Nikolas, with the consent of Nikolas and his therapist.

The social worker filed a six-month status review report recommending that reunification services be terminated as to mother and father and that a section 366.26 hearing be set. Mother still lived in Kansas and had an unstable living situation. She failed to complete her case-plan requirements. Father was having regular contact with Nikolas, but Nikolas had become upset with him and refused to talk to him. Nikolas was doing well in his foster home, although he wanted to return to mother. Nikolas never consented to conjoint therapy with father. Mother apparently told Nikolas so much negative information about father that Nikolas did not want to be around him.

At a contested review hearing on June 8, 2005, the court allowed Nikolas to speak. Nikolas said he wanted to return to his mother’s care. The court informed Nikolas that the State of Kansas denied the ICPC evaluation, thus refusing to allow him to move to Kansas with mother. Nikolas said the weekend visits with father were going very well and that he wanted to continue them, but he wanted to remain living in his foster care home. The court commented that there was an ongoing order for mother not to discuss the case with Nikolas, but she had clearly talked to him about it, since he knew everything and even used the same language mother used regarding the case. The court terminated services as to mother and father and ordered legal guardianship as the permanent plan. At a section 366.26 hearing on August 24, 2005, the court terminated the dependencies while establishing legal guardianships for the two boys with the foster parents.

Section 388 Petition

On January 9, 2007, mother filed a section 388 petition in propria persona, seeking to have the guardianships terminated and the children returned to her custody. Mother also requested that “visitation be re-evaluated and enforced,” as she claimed that the foster parents were not cooperating with visitation. As to changed circumstances, mother alleged that she moved back to California, had suitable housing, and was gainfully employed. As to the best interests of the children, mother alleged that she loved her children and they loved her, that being separated was “shredding the hearts of each of [them],” and that all they really wanted was to be together. The court reviewed the petition and found that the best interests of the children “may be promoted by the requested new order” and set a hearing for February 21, 2007.

Section 388 Hearings

At the hearing on February 21, 2007, counsel for the department asked the court to continue the matter so that the department could investigate mother’s request. The court continued the hearing to March 28, 2007. Mother’s counsel informed the court that mother was not getting visitation with Nikolas, and counsel asked the court to enforce the prior visitation order. Counsel for the legal guardian responded that the guardian would comply with any court orders regarding visitation. The court then stated that visitation was to be supervised by a guardian or an adult selected by the department.

On March 28, 2007, the court held a continued hearing. Counsel for Nikolas requested that the matter be continued again. Nikolas’s counsel then informed the court that Nikolas wanted to return to mother’s home. The court continued the matter to May 3, 2007, so that it could get the history of the case.

The social worker filed an addendum report on April 30, 2007, recommending that the court terminate Nikolas’s legal guardianship and place him in father’s custody, without dependency. Nikolas’s guardian told the social worker that his behavior had deteriorated rapidly after mother gave him a cell phone (without the guardian’s consent), and that she bought him “Gothic” clothing. Since then, Nikolas had been disrespectful, ditched school, and, at times, yelled at others at home. The legal guardian expressed her desire to terminate the guardianship due to Nikolas’s negative behavior. She told the social worker that after one incident when she smelled marijuana in Nikolas’s room and called the police, Nikolas was so angry and combative that she contacted father for help. Father picked up Nikolas for an extended visit. Father reported to the social worker that after the guardian permitted Nikolas to live with him, Nikolas’s behavior improved. At the time of the social worker’s report, Nikolas was attending school and working part time. Father placed great emphasis on Nikolas’s education. The social worker further reported that father had a good job working as a building engineer, with a lot of potential for promotion. He lived in La Jolla with his wife and three children.

On April 23, 2007, Nikolas told the social worker that he realized he was 17 years old and could make his own decisions. He then said he was doing well in father’s home and that he wanted to remain there.

Mother testified at the hearing on May 3, 2007. She essentially testified about the unsuitability of father as a custodial parent. She claimed that father was manipulative and violent, that she was afraid he would be physically violent with Nikolas, that in 1983 he was arrested for unlawful sexual intercourse, and that numerous illegal weapons had been found in his truck. On cross-examination, the department’s attorney indicated that Nikolas’s father had no criminal history. Counsel for mother argued that mother felt she had a very strong bond with Nikolas, that he was very close to her, and that it would be in his best interest to be placed back with her. Counsel for Nikolas submitted on the department’s recommendations. The court expressed its concern with terminating the dependency, in light of Nikolas’s negative behavior. Counsel for the department stated that, technically, the department did not have a dependency with Nikolas, and that it was requesting to terminate the guardianship and “just leave [Nikolas] with his father.” The department explained the reason for its request as being that Nikolas had no behavior problems in the legal guardian’s home until mother came back into the picture. However, since Nikolas had been with father, his negative behavior stopped. The court granted the legal guardian’s petition to terminate the legal guardianship. The court then denied mother’s petition because it did not feel that her requests would promote Nikolas’s best interests. The court ordered Nikolas to be placed in father’s custody.

We note that the court set a section 366.26 hearing for G.S. On August 6, 2007, mother filed a petition for extraordinary writ, pursuant to section 8.452(a), as to G.S. She contended that the court erred in denying her section 388 petition because she had established that her circumstances had changed for the better and that he would be better off with her. This court denied the petition.

ANALYSIS

I. The Court Properly Denied Mother’s Section 388 Petition

Mother contends that the juvenile court abused its discretion in denying her section 388 petition as to Nikolas. We find no abuse of discretion.

A. Standard of Review

A section 388 petition 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. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)

B. The Court Did Not Abuse its Discretion

Under section 388, “[t]he petitioning party has the burden of showing, by a preponderance of the evidence, that there is a change of circumstances or new evidence, and the proposed modification is in the child’s best interest. [Citations.]” (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)

Here, the court denied the section 388 petition because mother did not meet her burden of showing that returning Nikolas to her was in his best interests. Mother argues that, in denying her petition, the court neglected to make any finding of changed circumstances and did not even address that issue. It is true, as mother asserts, that she did show some changed circumstances from the time the dependency was initiated. She had employment and adequate housing. She had remarried, and the record does not reflect any suspicion of domestic violence in the marriage. These changes, however, did not demonstrate that the fundamental problems which triggered the dependency had been corrected. At the time the dependency began, mother had a long history of chaotic relationships. She admitted that her children were repeatedly exposed to the consequences of her own abusive relationships and that she knew these relationships put her children at risk. Her request for modification did not address these issues. To the extent that her mental health issues impacted her ability to provide a safe home for Nikolas, that issue was not addressed.

In any case, “[i]t is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of [Nikolas]. [Citation.]” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) Mother failed to do so. As to best interests, she merely alleged that she loved her children and they loved her and each other, that being separated was “shredding the hearts of each of [them],” and that all they really wanted was to be together. When given an opportunity to present evidence at the section 388 hearing, mother simply testified concerning the unsuitability of father as a custodial parent, and that she feared he would be physically violent with Nikolas and deny her visitation. Counsel for mother merely argued that mother felt she had a strong bond with Nikolas, and that he was very close to her. Mother clearly failed to demonstrate how returning Nikolas to her custody would be in his best interests. In fact, there was substantial evidence that mother’s contacts led to a deterioration in Nikolas’s behavior. Furthermore, Nikolas expressed to the social worker that he wished to remain with his father. At 17 years of age, he was capable of expressing a valid preference.

Ultimately, we cannot say that the court’s decision to deny the section 388 petition was arbitrary or capricious. We accordingly find no abuse of discretion.

II. The Court Properly Placed Nikolas With Father

Mother argues that the juvenile court had the power to issue exit orders establishing custody and visitation, which would then be filed in and enforced by the family law court. She then contends that the court abused its discretion in placing Nikolas in father’s custody and not ordering visitation, since there was “very little evidence and scant investigation” by the department to support the court’s order. We conclude that the court properly placed Nikolas with father.

Mother claims that since a juvenile court has discretion to make custody and visitation orders when it terminates a dependency, pursuant to section 362.4, it should have the same discretion when it terminates a legal guardianship. She specifically asserts that the court failed to make any visitation order. Mother fails to cite any authority to support this analogy. Section 362.4 addresses the court’s discretion in issuing protective orders and custody and/or visitation orders at the time it terminates a dependency proceeding. Section 366.3, subdivision (b), addresses the situation where the court has dismissed its dependency jurisdiction following the establishment of a legal guardianship, and the legal guardianship is subsequently terminated, such as in the instant case. Section 366.3, subdivision (b), provides that the court may consider the parents as custodians, but the child shall not be returned to the parents unless they prove, by a preponderance of the evidence, that reunification is the best alternative for the child. “The court may, if it is in the best interests of the child, order that reunification services again be provided to the parent or parents.” (§ 366.3, subd. (b).) Section 366.3 does not incorporate any language from section 362.4 regarding custody or visitation orders; thus, there is no basis to conclude that the court here was required to issue a visitation order.

Moreover, there was apparently no need for further court intervention. Subsequent to the filing of the section 387 petition, father was offered reunification services. The only component to his case plan was to participate in conjoint counseling with Nikolas. However, this requirement was conditioned upon Nikolas’s agreement to participate in the counseling, and he never agreed to it. In any case, by the time of the hearing at which the court terminated the legal guardianship, Nikolas was living with father and was thriving at home, school, and work. All of Nikolas’s negative behavior that his guardian reported, which was apparently a result of his contact with mother, stopped after he began living with father. In contrast to mother’s speculative claim that father would be physically violent with Nikolas, Nikolas never identified any violence on father’s part. Rather, Nikolas told the social worker that he wanted to remain with father because he was doing well there. Nikolas also reported that he had not had visits with mother, and the social worker observed that he was not distraught about it.

In addition, contrary to mother’s claim, the record indicates that the department conducted a background investigation of father and confirmed that he had no criminal history, he lived in a stable residence in La Jolla with his wife and three children, and he was gainfully employed.

Furthermore, the alternative to placing Nikolas in father’s custody was to place him back in foster care, resume the dependency, and order reunification services again. Considering that Nikolas was so close to the age of majority and that he was thriving in father’s care, we cannot see how that would have been in his best interests. The court thus properly placed Nikolas with father.

DISPOSITION

The judgment is affirmed.

We concur: RAMIREZ, P.J., KING, J.


Summaries of

In re Nikolas A.

California Court of Appeals, Fourth District, Second Division
Jul 24, 2008
No. E043154 (Cal. Ct. App. Jul. 24, 2008)
Case details for

In re Nikolas A.

Case Details

Full title:In re NIKOLAS A., a Person Coming Under the Juvenile Court Law. RIVERSIDE…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Jul 24, 2008

Citations

No. E043154 (Cal. Ct. App. Jul. 24, 2008)