Opinion
D042039.
10-14-2003
In re RYAN B., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. MELISSA H., Defendant and Appellant.
Melissa H., the mother of Ryan B., appeals orders of the juvenile court (1) denying her an evidentiary hearing on her modification petition based on changed circumstances (Welf. & Inst. Code, § 388) and (2) reducing the amount of her visitation and requiring the visitation to be supervised. We affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
PROCEDURAL AND FACTUAL BACKGROUND
Responding to a report of child neglect, police took Ryan, who was then seven years old, to Polinsky Childrens Center on June 20, 2001, because he was living in dirty and unacceptable conditions. Ryan and his family were homeless, living in a dirt lot under a tree and using a flattened cardboard box as a bed. Trash, human body waste and many flies were in the immediate area. Ryan, Melissa and Ryans stepfather had been living there for about 12 days because they had no money to pay rent.
The following day, Melissa told a social worker that Ryan had Attention Deficit Hyperactivity Disorder and had stopped going to school four months earlier. Melissa also said Ryan wore diapers because he often soiled himself and used a bottle overnight. The intake person at Polinsky Childrens Center said Ryan appeared developmentally delayed.
On June 25, the San Diego County Health and Human Services Agency (Agency) filed a two-count petition under section 300, subdivision (b), alleging Melissas failure to provide a suitable home for Ryan and proper care for his developmental disability placed him at a substantial risk of serious harm.
On August 17, the court sustained the petition after dismissing the unsuitable housing count. Ryan was declared a dependent of the court.
Ryan previously had been declared a dependent in October 1995 after Melissa had subjected him to numerous unnecessary medical procedures and hospitalizations. Medical staff suspected Munchausens Syndrome by proxy. Agency provided reunification services and Ryan was placed with Melissa in November 1997. The dependency was terminated in April 1998.
The court ordered Melissa to comply with her case plan, which required her to obtain a stable and suitable residence, show her ability to provide adequate care for Ryans special needs, and make sure Ryan attend school when returned to her care. Melissa was to undergo a psychological evaluation. The court granted Melissa two 4-hour visits on the weekends. In October, Melissa began eight-hour unsupervised visits with Ryan on the weekends.
According to her psychological evaluation, Melissa functioned in the borderline range of intelligence and had a history of erratic, unstable behavior. Her antisocial history included criminal convictions and suicide attempts. Melissa was able to disguise and deny her symptoms. The evaluator opined Melissas lack of compliance with medication and treatments did not support a favorable prognosis.
For the six-month review hearing, the social worker reported Melissa was living in a tent with her husband on East San Ysidro Boulevard. Melissa was on the waiting list for federally subsidized housing. Ryan had unsupervised visits with Melissa at her tent every Saturday. A psychological evaluation of Ryan concluded he functioned in the mildly retarded range and may have a learning disability. Ryan continued to suffer from enuresis. The social worker recommended parenting classes and general therapy be added to Melissas case plan. The court ordered six more months of services.
A psychiatric evaluation of Melissa performed in February 2002 diagnosed Melissa with a personality disorder. Melissa did not see herself as having any problems. The evaluator found Melissas lack of understanding about caring for Ryan "striking." Noting that Melissa was dependent on her husband and not inclined to take medications to improve her mental health, the evaluator was doubtful Melissa could provide for her own safety, let alone Ryans safety.
Melissa told the social worker she wanted to live in Tijuana because rent was much cheaper there, and Ryan could attend school in Chula Vista. However if Ryan lived in Tijuana, the family would have to pay a $300 monthly fee for him to attend school in Chula Vista and he would not be eligible for Medi-Cal insurance. Nor would Melissa be eligible for food stamps. Melissa completed a parenting course but was rarely attending her therapy sessions.
For the 12-week hearing, the social worker opined that Ryan should not be returned to Melissa until she had adequate housing. At that point, the social worker said Melissa could obtain daily instruction on meeting Ryans needs from the Family Preservation Program.
Subsequently, the social worker concluded there was not a substantial probability that Ryan could be returned to Melissa by the 18-month date. This conclusion was based on Melissas lack of progress in therapy and her failure to take responsibility for Ryans problem with enuresis because he was not living with her. The social worker recommended the court terminate services and set a 366.26 hearing. On October 1, Melissa indicated she would submit on Agencys recommendation of long-term foster care. However, Agency changed its long-term plan to adoption after a pre-assessment social worker concluded Ryan was adoptable. On October 15, Melissa withdrew her request for a trial and submitted on the recommendation. The court terminated services and set a section 366.26 hearing.
In mid-December, Melissa and her husband found housing in Rosarito Beach, Mexico.
On February 11, 2003, the court continued the section 366.26 hearing after Agency asked for more time to find an adoptive placement for Ryan. Agency also asked that mothers visits be reduced and supervised. Melissa opposed the visitation request and set the matter for trial. For the interim, the court reduced Melissas weekend visit from 12 hours to six hours. The court also ordered that Melissa — not Ryans stepfather — must be present for the visit to take place and Ryan was not to be taken to Mexico during the visit.
On March 17, Melissa filed a section 388 petition in which she requested Ryan be placed with her and Family Preservation Services be ordered. As changed circumstances, the petition alleged Melissa and her husband were living in adequate housing. Further, the petition stated that because Ryan and Melissa were bonded, it was in Ryans best interests that he be placed with his mother.
On April 2, the court found Melissa had failed to state a prima facie case in her section 388 petition and denied an evidentiary hearing on the petition. On April 21, after a contested hearing, the court ordered Melissa was to have four hours per week of supervised visitation with Ryan. Melissa filed a timely notice of appeal from these orders.
DISCUSSION
I. Denial of Evidentiary Hearing on Section 388 Petition
Melissa contends the juvenile court erred in denying her request for an evidentiary hearing on her section 388 petition. The contention is without merit.
Section 388 provides that a parent may petition the court for a hearing to change, modify or set aside any previously made order of the court on the grounds of changed circumstances or new evidence. The statute goes on to state: "If it appears that the best interests of the child may be promoted by the proposed change of order . . . the court shall order that a hearing be held . . . ." (§ 388, subd. (c).)
However, if the petition fails to state a change of circumstances or new evidence that might require a change of order, the court may deny the application ex parte. (Cal. Rules of Court, rule 1432(b).) The parent must make a prima facie showing to trigger the right to a full hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 310; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416.) "A prima facie showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited." (In re Edward H. (1996) 43 Cal.App.4th 584, 593; see also In re Daijah T. (2000) 83 Cal.App.4th 666, 673.) The petitioners burden includes making a prima facie showing that the requested change would promote the best interests of the child. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)
A juvenile court has broad discretion in deciding whether to grant an evidentiary hearing on section 388 petitions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 805-808.) A juvenile courts discretionary ruling should not be reversed absent an "`"arbitrary, capricious, or patently absurd determination."" (In re Stephanie M . (1994) 7 Cal.4th 295, 318.)
On this record, we find no abuse of discretion. The juvenile court properly could conclude there was no prima facie showing of changed circumstances such that a renewed reunification effort and the resultant postponement or cancellation of the section 366.26 hearing were in the childrens best interests.
As changed circumstances, Melissa alleged she had secured suitable housing and completed an interactive parent education program. Assuming these allegations were true and that they would have been proven at an evidentiary hearing, "a change of circumstance warranting renewed reunification efforts . . . would not have been established." (In re Edward H., supra, 43 Cal.App.4th at p. 591.) To establish a prima facie case of changed circumstances, Melissa needed to allege the circumstances that caused the removal of her children were no longer present. She failed to do this.
It is true that the familys homelessness was the initial reason Ryan was taken into protective custody, and the section 300 petition alleged this factor in one of the counts. However, that count was dismissed, and the juvenile court sustained the petition on the basis of Melissas failure to provide care and treatment of Ryans developmental disability. Thus, it was not the suitable housing issue but rather Melissas inability to parent Ryan in light of his special needs that led to his removal from Melissas physical custody.
To be sure, obtaining stable and suitable housing was one of the goals of Melissas case plan. But there were two other goals: showing her ability to provide adequate care for Ryans special needs; and making sure Ryan attend school when returned to her care. Melissas new circumstance of a Mexican residence did not promote the goal of being able to provide care for Ryans disability or the goal of ensuring he attend school.
In light of Melissas substantial mental health issues, the completion of an interactive parenting education program was not a sufficient change of circumstance to show she had gained the insight and capability to adequately address Ryans special needs.
Furthermore, Melissas petition did not make an adequate showing that her requested change — placing Ryan with her — would be in his best interests. Melissas allegation that she and Ryan were bonded is not enough to establish a prima facie case of best interests. The juvenile court may consider "the facts established as without dispute by the courts own file" in determining whether a prima facie showing has been made that modification would be in the childs best interests. (In re Angel B. (2002) 97 Cal.App.4th 454, 461.) At the age of nine, Ryan continued to soil his clothes. Meanwhile, Melissa continued to deny she had her own mental health issues and stopped going to therapy. Melissa was no further along in dealing with her problems than she was in February 2002, when a psychiatrist called Melissas lack of understanding about caring for Ryan "striking." The psychiatrist added that he doubted Melissa could safely take care of herself, let alone Ryan. Given Melissas serious mental health problems and her denial of them, it would not have been in Ryans best interests to place him with Melissa in Rosarito Beach. Moreover, Ryan would not be able to attend school in California unless the family, which was practically destitute, paid $300 a month. If Ryan lived in Mexico, he would not be eligible for Medi-Cal health insurance.
Melissa argues she was denied her right to due process when the court refused to grant a hearing. Melissa is mistaken. As indicated above, her petition to did not meet the requirements for an evidentiary hearing.
II. Limitations on Visitation
Melissa contends the court abused its discretion by reducing the amount of visitation and changing it from unsupervised to supervised visitation.
A reunification plan must include visitation. (§ 362.1.) The visitation should be as frequent as possible, consistent with the well-being of the child. (§ 362.1, subd. (a)(1)(A).) Unless there is a showing of detriment caused by the visitation, a suspension of visits is ordinarily improper — even after the end of the reunification period. (In re Luke L. (1996) 44 Cal.App.4th 670, 679; see also § 361.5, subd. (f).) However, in this case visitation was modified, not halted. A court may limit a parents contact with a child if the limitation is in the childs best interests. (In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1134, disapproved on other grounds in People v. Brown (1994) 8 Cal.4th 746, 764.)
Orders concerning visitation are reviewed under the abuse of discretion standard. (In re Emmanuel R. (2001) 94 Cal.App.4th 452, 465.) The juvenile court has broad discretion in making visitation orders, which should not be disturbed on review absent a clear abuse of discretion. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
Through testimony and Agency reports, the court was presented with evidence that Melissa often was inattentive and not engaged with Ryan during the supervised visits and that she did not adequately parent him. Ryan was left to play by himself for long periods of time during visits and sometimes in potentially dangerous areas. A February 2003 psychological evaluation of Ryan recommended supervised visits:
"Ryan should have supervised visits . . . based on current caretakers report that he come[s] back from visits carrying underpants with feces in them suggesting he is having accidents during the visits for unknown reasons. He needs to be learning how to take care of himself in public in an age appropriate manner."
Two weeks before the contested hearing on visitation, Ryan defecated in his pants during a visit. Melissa also displayed an inability to discipline Ryan during visits. On one occasion, Melissa ordered a time out when Ryan stood on a broken table top. But when Ryan immediately started crying, Melissa hugged him and cancelled the time out. Later, Melissa told Ryan he could stand on the broken table top.
We agree with the courts observation that the evidence presented raised "substantial issues reflect[ing] upon an ability of [Melissa] to effectively exercise supervision and protection of the minor when she has unsupervised visitation." The court did not abuse its discretion in changing the visits to supervised ones.
Since February 2003, Melissa had missed 10 visits. We also find no abuse of discretion in reducing the amount of her visitation.
DISPOSITION
The orders are affirmed.
WE CONCUR: NARES, J. and HALLER, J.