Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Anthony Trendacosta, Commissioner, Los Angeles County Super. Ct. No. CK16697
Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.
KLEIN, P. J.
Carmen R. (mother) appeals an order of the juvenile court terminating her parental rights with respect to Perla M. and denying mother’s petition for modification under Welfare and Institutions Code section 388. We affirm the juvenile court’s order.
Subsequent unspecified statutory references are to the Welfare and Institutions Code.
BACKGROUND
1. The family receives voluntary family maintenance services.
Mother has eight children, Christopher R., Iris R., Jonathan R., Maureen R., Ricardo M., Ezequiel M., Jose M. and Perla M., the only child at issue in this case and the youngest of mother’s children. In July of 2003, the Department of Children and Family Services (DCFS) investigated allegations that Iris R. was the victim of physical abuse by Perla M.’s father, Guillermo M. (hereinafter referred to as father). Mother and father agreed to participate in voluntary family maintenance (VFM) services. While these services were being provided, mother and father failed to disclose that Perla M. was born prematurely in November of 2003, and was not released from the hospital for more than three weeks. DCFS personnel observed that mother seemed uninvolved with the children. Although there were 10 people living in mother’s home, Perla M. appeared to lack stimulation.
In December of 2003, then 17-year-old Iris R. disclosed allegations of sexual abuse by father’s brother. DCFS reported Iris R. often was responsible for Perla M.’s care and mother failed to enroll Iris R. and Ezequiel M. in school for three months.
2. The children are detained; Perla M. is placed with the L. family.
On April 7, 2004, DCFS detained the children based on mother and father’s failure to comply with the VFM plan. Four-month-old Perla M. was placed in the foster care of the L. family. When first placed, Perla M.’s ears and navel were black with dirt and it took her foster mother, Anita L., a week to clean those areas completely. Further, Perla M. had no movement in her legs or arms. She rarely cooed or cried for the first two weeks she was in the L. home.
As sustained in June of 2004, the dependency petition alleged mother and father inappropriately disciplined Iris R.; mother and father engaged in domestic confrontations; father and Christian R. engaged in physical confrontations; mother’s home was unsanitary; and, father’s adult brother, Juan M., sexually abused Iris R. and mother and father failed to take action to protect her.
The juvenile court ordered mother to attend parent education, individual counseling and CSAP (Child Sexual Abuse Treatment Program).
3. The reunification period.
At the six-month review hearing on December 1, 2004, the juvenile court found the main impediment to returning the children to mother was the lack of appropriate housing. A social report filed December 10, 2004, indicated, “The members of this family all love each other and look forward to their visits with each other.” Anita L. reported Perla M. and Iris R. enjoyed visiting each other.
DCFS held a family group decision-making meeting (FGDM) on February 5, 2005. Mother and father agreed to apply for specialized funds for housing and to follow up on a lead about an apartment. However, at the time of the 12-month review hearing in June of 2005, mother and father were living with friends. Mother had been employed since March of 2005 and had completed domestic violence classes but not CSAP.
For a review hearing on September 2, 2005, DCFS reported mother and father had been arriving late for visits. The juvenile court acknowledged that DCFS had attempted to provide financial assistance to the parents, but their immigration status interfered with their ability to locate appropriate housing. The juvenile court ordered DCFS to continue to help mother and father to obtain housing.
For the 18-month review hearing in October of 2005, DCFS reported mother and father did not contact the FGDM coordinator until September of 2005 and, by that time, the specialized housing funds had run out. Mother was living in a friend’s garage. The FGDM coordinator had located a landlord willing to accept specialized funds for the family’s housing. Mother visited but consistently was late. Although mother showed affection toward her other children, she did not demonstrate affection toward Perla M. Mother appeared to have the strongest bond with Iris R. and Jonathan R. Perla M., on the other hand, was bonded to the L. family and her foster siblings. The L.’s reported Perla M. required constant stimulation or she would sit for hours without making any noise. The L.’s were supportive of Perla M.’s return to her family but admitted it would be heartbreaking for them because they regarded her as their daughter.
4. Family reunification services terminated.
On December 8, 2005, the juvenile court found mother and father were not in compliance with the case plan and terminated family reunification services. At the hearing, DCFS indicated mother and father had been unable to rent the apartment located by the FGDM coordinator because they lacked proper identification. The juvenile court ordered DCFS to continue to assist mother and father to locate housing.
After several progress hearings, the juvenile court set the matter for a hearing under section 366.26 on June 8, 2006. The juvenile court indicated the proposed permanent plan for Maureen R. was legal guardianship by her cousin; the proposed permanent plan for Jose M., Ezequiel M. and Ricardo M. was adoption by their aunt; and, the permanent plan for Perla M. was adoption by the L.’s.
In a social report prepared for December of 2006, DCFS reported mother was living in a three-bedroom house in Orange with Iris R., Iris R.’s male companion, and maternal grandmother. Father was living in Los Angeles. Mother continued to arrive late for visits and failed to show Perla M. affection. Anita L. indicated she would support post-adoption sibling visits and visitation with father but would not support visitation by mother.
On December 7, 2006, the juvenile court ordered Jose M., Ezequiel M. and Ricardo M. returned to mother and terminated jurisdiction as to Iris R. The juvenile court continued the matter to February 1, 2007, for a permanency planning hearing with respect to Maureen R. and a hearing under section 366.26 as to Perla M., both of whom remained in their respective placements.
DCFS reported the L.’s would be excellent adoptive parents for Perla M. They had five adopted children, a 21-year-old son, and daughters 17, 6, 5, and 4 years of age. They live in a four-bedroom home in Laguna Hills and intended to build a room for Perla M. if they are able to adopt her. The L.’s home study was approved on December 1, 2006.
5. Mother files a section 388 petition with respect to Perla M.
On December 28, 2006, mother filed a petition for modification under section 388, seeking return of Perla M. to her care. Mother alleged she had completed the case plan and had obtained appropriate housing. Mother further alleged the return of Perla M.’s siblings constituted changed circumstances such that return was in Perla M.’s best interests.
On January 2, 2007, the juvenile court granted a hearing on mother’s section 388 petition and continued the matter to February 1, 2007, for a combined hearing under section 366.26 and on mother’s petition. The juvenile court’s written order indicated it would not hold an evidentiary hearing. The order stated: “The judge will make a decision based on your request and any other papers filed by [the other parties]. You . . . may ask for a hearing which the judge will hold if there is good cause.”
A social report filed prior to the February 1, 2007 hearing indicated mother opposed adoption of Perla M. and preferred placement of Perla M. with maternal grandmother in Ensenada, Mexico. Mother continued to arrive late for visits and her relationship with Perla M. had not improved. On January 9, 2007, Anita L. asked the CSW to arrange further visits after mother failed to appear for three visits. The CSW contacted mother and learned mother and the children in her care had moved into a single room apartment in Los Angeles with father. Mother acknowledged she had missed visits with Perla M. and Maureen R. as a result of the move.
The CSW opposed return of Perla M. to mother. The CSW noted “Perla’s siblings were returned [to the] home of the mother and . . . father as their situation was different . . . .” The report indicated mother and Perla M. did not develop a mother/child bond. Thus, Perla M. sees the L.’s as her parents and there is a strong bond between Perla M. and the L.’s, who consider Perla M. their child. DCFS recommended termination of parental rights to free Perla M. for adoption by the L.’s.
On February 1, 2007, the juvenile court continued the matters on calendar to March 8, 2007. When the trial court indicated Anita L., who had appeared for the scheduled hearing, need not be present at the next hearing, counsel for DCFS indicated mother, who had not appeared for the hearing, might wish to cross-examine Anita L. The juvenile court responded mother was not entitled to cross-examine “anyone” with respect to her section 388 petition but might cross-examine Anita L. with respect to the contested hearing under section 366.26. Therefore, Anita L. should appear for the March 8 hearing.
Anita L. then addressed the juvenile court and indicated the visitation situation was affecting Perla M.’s health. Mother had failed to appear for visits “for a whole month.” Anita L. believed this made Perla M. anxious and nervous to the point the child required therapy. The juvenile court ordered DCFS to arrange a specific visitation plan and to cancel any visit the parents did not confirm at least 24 hours in advance. The juvenile court indicated it might terminate visitation entirely if the parents again missed a visit without calling.
A social report prepared for March 8, 2007, stated that, according to Anita L., the visits at the FFA office in Commerce were causing Perla M. emotional disturbance and the child would become uneasy at the sight of the building. Perla M. had developed difficulty with her bowel movements. Perla M.’s doctor recommended a laxative and advised Anita L. to change the child’s diet and to remove the child’s feces manually if she became impacted.
6. The hearings conducted on March 8, 2007.
On March 8, 2007, the juvenile court called the matter for multiple hearings.
a. The progress report on Maureen R.
The juvenile court continued Maureen R.’s case to June 7, 2007, after her graduation from high school, at which time the juvenile court would consider placing her with mother.
b. Mother’s section 388 petition.
The juvenile court then turned to mother’s petition under section 388 and asked if mother’s counsel had anything to add to the petition. Counsel responded by clarifying that mother’s goal was to have Perla M. returned to her but mother also would be agreeable to additional family reunification services.
Counsel for Perla M., counsel for DCFS and counsel for the L.’s opposed mother’s petition. When counsel for the L.’s pointed out that mother no longer had adequate housing, the juvenile court agreed the most recently filed social report indicated mother was living in a one-room apartment with a number of children and there was the prospect that Maureen R. would be placed with mother in June.
After mother and her counsel conferred, counsel confirmed that mother had moved to a one-bedroom apartment and that six people would be living there. Nonetheless, counsel asserted mother had never been found to be an unfit parent and both parents had complied with the case plan. Counsel noted mother’s lack of housing was an insufficient basis upon which to remove Perla M. from her custody, especially where mother was a non-offending parent. Counsel noted the return of many of mother’s children to her care necessarily indicated there had been some change in circumstances and it was in Perla M.’s best interest to return to her family.
The juvenile court agreed a number of the children had been returned to mother and observed that mother and father have “complied with the case plan . . . and are seeming to be moving in the right direction.” Thus, the parents had shown changed circumstances. “However, there has been absolutely no evidence that I can see, other than an argument that the child should be with parents or the child should be with other siblings, that shows any kind of best interests.” The juvenile court noted mother again was residing in an overcrowded one-bedroom apartment. Further, based on the social reports, Perla M. looks to the L.’s as her parents, she has spent a considerable portion of her life with the L.’s, and the L.’s were uneasy about further visits with mother. The juvenile court noted the L.’s were devoted to Perla M. to the point where they are “essentially having to wear gloves and pull feces out of the child because the child’s impacted. I don’t know what more a parent can be expected to do than that.”
The juvenile court concluded that, even if mother had attended all visits on time, it did not believe further reunification services would change the situation. “And even if I were to believe that, this child needs permanence. This child needs to move on. This child is confused. I have no doubt that part of her medical problems have to do with the stress of what’s going on in her life. And I have an obligation to end that.” The juvenile court then denied mother’s section 388 petition.
c. The contested hearing under section 366.26 as to Perla M.
The contested hearing under section 366.26 commenced with the testimony of Anita L. who stated Perla M. was placed in her care at the age of four months and she will be four years of age in November. Anita L. feels bonded to Perla M. and wants to adopt her. Perla M. refers to Anita L. as her mother. During visits, mother and Perla M. do not communicate. Perla M. plays with Maureen R. and does not want to stay at the visit if Maureen R. is not there. Although father has not attended visits lately, Anita L. observed that, during visits in the first two years of the case, father changed Perla M.’s diaper, fed the child and played with her. Thus, Anita L. would be supportive of continuing visits with her father and Perla M.’s siblings if Perla M. wanted to maintain those relationships. However, Anita L. would not be supportive of continuing visitation with mother. Anita L. estimated mother had failed to appear for at least 20 visits over the three years this case has been in the juvenile court system. Mother never called to cancel or to see how Perla M. was doing.
At the outset of mother’s testimony, the juvenile court stated the record reflected mother has “at least attempted to visit regularly.” Mother then testified Perla M. recently has referred to her as “mama” and they were “just getting to know each other.” Mother asserted she, not father, changed Perla M.’s diaper at the early visits and that Perla M. has told mother after each of the recent visits that she loves her.
The juvenile court found this case was unique in that some of Perla M.’s siblings had been returned to mother. However, Perla M. had spent a significant portion of her life in the care of the L.’s, she looked to them as her parents and she was entitled to permanence. The juvenile court noted it had doubts about mother’s veracity but it had been favorably impressed by Anita L.’s testimony. Although Anita L. admitted she wished to adopt Perla M., she did not “trash both parents. . . . [¶] She’s done everything she can to foster sibling visitation for the children. She’s adopted a number of other children and kept them in contact with their siblings. I don’t think you could find a better and more upright citizen than . . . Mrs. [L].”
The juvenile court found mother’s relationship with Perla M. was insufficient to trigger the continuing relationship exception to termination of parental rights. Regarding the sibling relationships, the juvenile court noted Perla M. was removed from the family home at the age of four months and Anita L. was willing to continue sibling visitation. The juvenile court concluded it would be detrimental to Perla M. to be returned to her parents and terminated parental rights.
CONTENTIONS
Mother contends the juvenile court erroneously denied her petition for modification under section 388 and abused its discretion in denying her a full evidentiary hearing on the petition.
DISCUSSION
1. The record supports the juvenile court’s denial of mother’s petition for modification.
Mother contends she demonstrated changed circumstances in that she had complied with the case plan and Jonathan R., Ricardo M., Ezequiel M. and Jose M. had been returned to her custody. Mother asserts it was in Perla M.’s best interests to return to “her family of origin.” Mother notes the juvenile court conceded mother had demonstrated changed circumstances and that mother had complied with the case plan. Mother contends that, in light of the history of this case and the demonstrated lack of risk to Perla M. given the return of Perla M.’s siblings to mother, the juvenile court erred in denying her petition for modification.
In addressing the merits of a petition for modification under section 388, it is helpful to refer to the factors set out in In re Kimberly F. (1997) 56 Cal.App.4th 519, namely: (1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of 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. (Id. at p. 532.)
Mother claims the first factor must be resolved in her favor because mother was in compliance with the case plan and Perla M. was not returned to mother sooner only because mother lacked adequate housing. However, mother was not in compliance with the case plan. Mother’s family reunification services were terminated after she failed to complete CSAP and failed to enroll in individual counseling. Although DCFS provided mother family reunification services for approximately three years, mother had not advanced beyond monitored visitation with respect to Perla M., her visitation was inconsistent, she failed to show Perla M. love and affection at visits and mother habitually lacked appropriate housing.
The second factor, the relative strength of the bond between the child and the parents and the bond between the child and the caretakers, appears to be easily resolved in favor of denial of mother’s petition. The juvenile court noted Perla M. looked to the L.’s as her parents and has spent a considerable portion of her life with them. Further, the social reports uniformly reflected that mother and Perla M. had not bonded and that mother failed to show affection to Perla M. at visits. Mother regularly appeared late for visits or cancelled without telephoning Anita L. Indeed, even after mother filed her petition for modification, she failed to visit for a month. Although mother testified at the hearing under section 366.26 that her relationship with Perla M. was improving, the juvenile court indicated it did not believe mother’s testimony. Thus, the record showed mother and Perla M. were not bonded and that Perla M. was bonded to the L. family.
Regarding the third factor, mother asserts she had resolved her housing problem, which had been preventing return of Perla M. However, as the juvenile court noted, although mother was living in a three-bedroom home in Orange when she filed the section 388 petition in December of 2006, by the time of the hearing on her petition, mother again was living with father and numerous of her children in a one-bedroom apartment and it was anticipated that Maureen R. would be returned to mother’s care at the end of the school year. Thus, mother’s circumstances no longer were “changed” and she again had inadequate housing.
Finally, mother asserts her parental rights with respect to Perla M. cannot be terminated unless the juvenile court first finds her unfit as a parent. (In re Gladys L. (2006) 141 Cal.App.4th 845, 848.) However, DCFS had no obligation to demonstrate parental unfitness in order for the juvenile court to deny mother’s petition for modification. By the time a hearing under section 366.26 has been set, the juvenile court already has made findings of parental unfitness. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254.) In re Gladys L. does not assist mother’s argument. The father in that case was never found to be unfit. In this case, several of the dependency allegations were based on mother’s conduct or her failure to act.
In sum, the record supports the juvenile court’s order denying mother’s petition for modification under section 388.
2. Mother never requested a full evidentiary hearing.
Mother asserts the juvenile court should have conducted a full evidentiary hearing on her petition for modification to address whether Perla M. would be at risk if returned to mother and the child’s best interests. Mother claims the juvenile court was unable to assess the quality of mother’s bond with Perla M., the second factor under In re Kimberly F., without conducting a hearing on the issue. Mother argues the juvenile court’s statement that mother was not entitled to cross-examine “anyone” at a section 388 hearing demonstrates that the juvenile court foreclosed mother from presenting evidence. Mother asserts the failure to conduct a hearing was error because the declaration testimony was in conflict and the declarant’s credibility was at issue. (In re Clifton V. (2001) 93 Cal.App.4th 1400, 1401.)
Mother’s claim fails because the record does not reflect that mother ever requested a full evidentiary hearing. Section 388 requires the petitioning party to show, by a preponderance of the evidence, that there is a change of circumstances or new evidence, and the proposed change in the juvenile court’s previous order is in the child’s best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415.) The petition must be liberally construed in favor of granting a hearing to consider the parent’s request. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Consistent with this policy, the juvenile court granted mother’s request for a hearing on the section 388 petition. However, the written order granting the request indicated the juvenile court would decide mother’s petition based on the petition itself and any other documents filed by the parties. The juvenile court also indicated the parties could “ask for a hearing which the [juvenile court would] hold if there is good cause.”
The record does not indicate that mother or her counsel thereafter requested a hearing, asked to call or cross-examine witnesses, or attempted to introduce additional evidence. On the contrary, when the juvenile court asked mother’s counsel if mother had anything to add to her petition, counsel responded by requesting return of the child or additional family reunification services. Thus, this is not a case in which a parent requested, but was denied a contested hearing. (See David B. v. Superior Court (2006) 140 Cal.App.4th 772, 777; In re James Q. (2000) 81 Cal.App.4th 255, 268.)
With respect to the juvenile court’s remark mother was not entitled to cross-examine Anita L. in connection with the section 388 petition, it is noteworthy that mother was not even present at the hearing at which the discussion regarding mother’s right to cross-examine took place. The conversation occurred in the context of whether Anita L. should return for the March 7, 2007 hearing and it was counsel for DCFS who suggested mother might want to cross-examine Anita L. In any event, the juvenile court’s assessment of the situation was correct. Because mother had not requested a contested hearing on the petition, she was not entitled to cross-examine Anita L.
In sum, the record demonstrates mother never requested a full evidentiary hearing on her section 388 petition. Consequently, no abuse of discretion or denial of due process appears.
Similarly unavailing is mother’s claim that her children constituted a sibling group. This suggestion is based on the comment of an attorney who appeared for counsel for the children at a hearing on October 3, 2005. Counsel stated: “The children are in three separate placements. And with Iris going home, it will be four separate placements. However, I have never seen such an intact family. So I don’t know if we’ve done this before, but they need to be declared a sibling unit.” The juvenile court declined to act on the request and it was never reiterated.
DISPOSITION
The order of the juvenile court is affirmed.
We concur: CROSKEY, J., ALDRICH, J.