Opinion
F082722
03-17-2022
In re J.M. et al., Persons Coming Under the Juvenile Court Law. v. E.M., Defendant and Appellant. KINGS COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent,
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant. Diane Freeman, County Counsel, Risé A. Donlon and Thomas Y. Lin, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Kings County. Nos. 19JD0095, 19JD0096 & 19JD0097 Jennifer Lee Giuliani, Judge.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
Diane Freeman, County Counsel, Risé A. Donlon and Thomas Y. Lin, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
POOCHIGIAN, ACTING P. J. 1
Appellant E.M. (Mother) is the mother of the children J.M., A.M., and I.H. (collectively "the children"), who are the subjects of a dependency case. Mother challenges the juvenile court's orders issued at a hearing on Mother's request for a change in a prior order terminating her reunification services. Mother contends the juvenile court erred when it denied her request for additional reunification services. We reject Mother's contention and affirm the order of the juvenile court.
FACTUAL AND PROCEDURAL BACKGROUND
Initial Removal
On May 7, 2019, the Kings County Human Services Agency (Agency) received an immediate response referral after I.H., at two months of age, was found to have multiple posterior rib fractures and a fracture of his second cervical vertebrae. A sergeant with the Corcoran Police Department indicated that Mother brought I.H. to Valley Children's Hospital (VCH) due to concerns with his breathing. Medical professionals at VCH reported concerns of nonaccidental trauma, and Mother was unable to provide an explanation for I.H.'s injuries. The sergeant also received a report that A.M., at three years of age, disclosed sexual abuse by Jose H., who is Mother's boyfriend and I.H.'s father.
Mother claimed I.H.'s injuries could have been caused by the various and frequent medical procedures I.H. underwent during the first two months of his life. I.H. was born prematurely and treated at VCH for breathing issues on multiple prior occasions. The various medical treatments included sedation, cardiopulmonary resuscitation (CPR), and tubes placed into his body to assist with his breathing. Medical professionals noted that the injuries were not consistent with performing CPR, and the injuries appeared to be at least seven days old.
Mother was the sole care provider for I.H., and she never left I.H. unattended with another person. I.H. typically cried frequently and for most of a day, including when he was picked up or had his diaper changed. Mother acknowledged physical discipline of 2 her five-year-old son J.M., but she denied ever spanking or hitting I.H. J.M. told an Agency social worker that Mother hit I.H." 'because he cried a lot in the day and night.'" J.M. also reported that Mother would hit him with a stick or belt for discipline. A.M. was able to describe to the social worker how Jose H. touched and hurt her vaginal area. After the investigation was complete, law enforcement placed the children into protective custody with the Agency.
The Agency filed an original petition alleging the children were described by various subdivisions of Welfare and Institutions Code section 300. The petition alleged that A.M. suffered sexual abuse by a member of the household, I.H. suffered severe physical abuse by Mother, and all three children were at risk of serious physical harm due to Mother's neglect.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
At the detention hearing held May 10, 2019, the juvenile court ordered that the children be removed from Mother's home, and it set a jurisdiction and disposition hearing for June 19, 2019.
Jurisdiction and Disposition
The Agency filed a jurisdiction report on June 17, 2019, which requested a continuance of the hearing for medical records to be reviewed by a child abuse expert. The children were placed together in a nonrelative resource family home. An addendum report filed the day before the hearing included a child advocacy report from VCH detailing concerns of physical abuse. The jurisdiction and disposition hearing was reset for July 9, 2019, with all parties in agreement to continue the matter.
A first amended petition was filed on July 1, 2019, which omitted the previous allegations of sexual abuse of A.M. by a member of the household and severe physical abuse of I.H. by Mother under section 300, subdivisions (d) and (e). In the Agency's 3 disposition report, filed on July 2, 2019, it was recommended that the allegations in the amended petition under section 300, subdivisions (a), (b), and (j) be found true, the children remain in out-of-home care, and Mother be provided family reunification services.
Mother was participating in weekly supervised visits with the children, and she interacted with the children without any noted concerns. The child abuse expert who reviewed I.H.'s medical records provided an opinion that the injuries were a result of physical abuse. The Agency determined the sexual abuse allegations were inconclusive after J.M. and A.M. provided no additional information during a follow up forensic interview.
The matter was eventually set for a contested hearing to take place on August 13, 2019. The children's care providers submitted information regarding statements J.M. and A.M. made that Mother had hurt I.H. An addendum report filed by the agency on July 19, 2019, detailed an incident, as reported by J.M., where Mother and I.H's father were fighting and Mother threw I.H. on the bed. Mother denied that such an incident ever occurred.
At the contested jurisdiction and disposition hearing, the parties proceeded with argument based upon the information contained in the Agency's reports and an offer of proof as to the child abuse expert's testimony. The juvenile court sustained the allegations in the first amended petition while finding that Mother caused the harm to I.H. Family reunification services were ordered for Mother, and her case plan requirements included a nonoffending sexual abuse program, parenting education, and need to maintain safe and stable housing.
Family Reunification Period
On December 11, 2019, the juvenile court denied a request by minor's counsel to suspend visitation between I.H. and his parents due to an alleged risk of further injury from transportation to in-person visits. The Agency prepared a report for the six-month 4 status review hearing to be held on February 4, 2020, which recommended continued family reunification services to Mother. As of the filing of the report, Mother had completed her nonoffending parenting and nurturing parenting classes. Mother was able to articulate information she learned through these classes, however, she continued to claim the injuries to I.H. were caused at the hospital.
The children remained in their same resource family home, and I.H. was progressing well despite his injuries and limited mobility for the first few months of his life. A.M. was scheduled to see a speech therapist to assist with her speech delay, and I.H. was referred for services to address developmental delays associated with his injuries. Mother participated regularly in weekly in-person supervised visits with all three children. The children were engaged with Mother during visitations, and Mother showed appropriate parenting skills in her time with the children.
At the six-month review hearing, Mother was in custody for criminal charges arising from the physical abuse of I.H. The juvenile court adopted the Agency's recommendation at the six-month review hearing by continuing Mother's reunification services.
The report prepared for the 12-month review hearing recommended that family reunification services be terminated for Mother and a section 366.26 hearing be set. Mother remained incarcerated for a majority of the reporting period, but she hoped to be released soon. Visitation continued through weekly video conferencing, and Mother was interacting appropriately with the children. Mother was participating in her case plan by completing assignments that were sent to her each month. The Agency did not believe the children could return to Mother by the 18-month review date due to Mother's incarceration without a tentative release date.
The juvenile court adopted the Agency's recommendation at the 12-month review hearing held on June 10, 2020, and it terminated reunification services to Mother. A section 366.26 hearing was scheduled for September 30, 2020. 5
Selection and Implementation Hearing
The children's care providers filed a request for de facto parent status for I.H., which the juvenile court granted on July 17, 2020. The father of J.M. and A.M. was located and ordered to be present for the section 366.26 hearing.
In August of 2020, Mother's counsel filed three separate section 388 petitions requesting a resumption of reunification services based upon the following alleged change of circumstances: Mother's release from custody, completion of her case plan services, stable employment and housing, desires of older children to return to her care, and current participation in unsupervised visits. The juvenile court denied each section 388 petition without a hearing.
The section 366.26 report, filed by the Agency on September 16, 2020, recommended that the juvenile court establish a permanent plan of placement in foster care with a goal of legal guardianship on behalf of the children. The children, now seven, four, and one year old respectively, remained placed in the same resource family home for most of their time since removal in May of 2019. This placement was briefly disrupted in July of 2020 due to the resource family's concerns over COVID-19, but the children returned to the home in September of 2020.
J.M., at age seven, was developing on target with no medical concerns. A.M., at four years of age, was meeting age-appropriate milestones and received treatment for a speech disorder. I.H., now one year old, received developmental services due to gross motor skills that were caused by the injuries he sustained prior to removal.
Mother continued to visit with the children regularly, and visitation was limited to supervised visits at once per week when the case was transferred to the adoption unit. There were no concerns noted during Mother's visits, and the children were excited to see Mother. Mother was observed to engage in age-appropriate conversations and be affectionate towards the children. 6
Each of the children were described as adoptable by the Agency, however, it believed termination of parental rights would be detrimental due to Mother's strong attachment with the children. The children's prospective legal guardians were motivated to take responsibility for the children because they had close relationships and a bond with each of the children.
J.M. reported that he wished to live with his mother and two siblings. A.M. loved and missed Mother, and her desire was to live with Mother, brothers, current care providers, prior care providers, and the Agency social worker. I.H. was too young to make a statement, but he enjoyed being around Mother and did not like to be separated from her.
On September 18, 2020, the juvenile court denied Mother's fourth section 388 petition requesting additional reunification services without a hearing. At the selection and implementation hearing held September 30, 2020, the juvenile court adopted the Agency's recommendation by ordering the children to remain in foster care with a permanent plan of legal guardianship.
Post Permanency Hearings
In November of 2020, Mother's fifth section 388 petition requesting reunification services was denied without a hearing due to "changing" circumstances. The juvenile court eventually set a hearing on Mother's sixth section 388 petition, which was filed on February 25, 2021.
The petition alleged the following changes of circumstances since termination of Mother's reunification services: plea deal in criminal case resolved as a misdemeanor conviction (Pen. Code, § 240) without additional jail time, stable housing and employment, ongoing unsupervised visits occurring at Mother's home, completion of two anger management classes, Agency's acknowledgment of strong parent-child bonds, and the desires of J.M. and A.M. to live with Mother. 7
On March 5, 2021, the Agency filed a status review report recommending that a selection and implementation hearing be set to order a permanent plan for the children. The children were continuing to visit Mother at a park each week for four hours. I.H. still had a broken bone in his cervical vertebrae, but he was too young for surgery. I.H. also continued to receive developmental services due to fine and gross motor skill delays from the fractures to his ribs and cervical vertebrae. J.M. and A.M. both reported they would prefer to live with Mother if they could only pick one home in which to live.
In an addendum report, filed March 22, 2021, the Agency recommended that a permanent plan of legal guardianship be ordered for the children with termination of dependency. The Agency also filed a report in response to Mother's section 388 petition, which recommended Mother's petition be denied. Mother described her belief that I.H. was injured during one of his hospital stays, and she denied any responsibility for I.H.'s injuries. Mother's home was found to be appropriate, and she completed the classes required by her case plan.
On April 28, 2021, the juvenile court held a contested hearing on Mother's section 388 petition and the Agency's recommendation to terminate dependency with a permanent plan of guardianship for the children. Mother testified that she and the children enjoy their visits with snacks, toys, and games. The children ran to her and hugged her at the beginning of visits. Mother also detailed instances where the children cried after visits because they did not want to leave her. Mother denied having an anger problem and claimed she only took an anger management class because the Agency told her to.
Mother's counsel argued that Mother established a change of circumstances and that her request for additional reunification services was in the children's best interests. Both counsel for the Agency and children argued that the petition should be denied, and a plan of guardianship should be established. 8
The juvenile court began its ruling with an acknowledgment of Mother's bond with the children, behavioral changes made by Mother, and J.M. and A.M.'s desires to return home. It also considered the loving and appropriate relationship that the children enjoyed for almost two years with their prospective guardians. The juvenile court concluded that it was unable to find a change of circumstances or that the change would be in the children's best interests due to the continued inability of Mother to provide a reasonable explanation for I.H.'s severe injuries. Mother's section 388 petition was denied, and a plan of legal guardianship was established without ongoing dependency.
DISCUSSION
Mother contends the juvenile court erred when it failed to grant her section 388 petition requesting additional reunification services. She argues that the strength of her bond with the children and progress in ameliorating the problem that led to dependency required relief under section 388.
I. Legal Principles
A petition to modify a juvenile court order under section 388 must allege facts showing new evidence or changed circumstances exist and changing the order will serve the child's best interests. (§ 388, subd. (a); In re Nolan W. (2009) 45 Cal.4th 1217, 1235.) The petitioner has the burden of proof by a preponderance of the evidence. (Cal. Rules of Court, rule 5.570(h)(1)(D).) In assessing the petition, the juvenile court may consider the entire history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.)
Section 388 serves as an" 'escape mechanism' when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights. [Citation.]" (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528.) (Kimberly F.) "After the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer 9 paramount. Rather, at this point 'the focus shifts to the needs of the child for permanency and stability' [citation] …." (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
"The change in circumstances must relate to the purpose of the order and be such that the modification of the prior order is appropriate. [Citations.] In other words, the problem that initially brought the child within the dependency system must be removed or ameliorated. [Citation.] The change in circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged order. [Citation.]" (In re A.A. (2012) 203 Cal.App.4th 597, 612.) "A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child's best interests. [Citation.]" (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
When determining whether a modification under section 388 would be in the best interests of the child, courts have considered several factors including but not limited to: "(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.…" (Kimberly F., supra, 56 Cal.App.4th at p. 532.)
II. Standard of Review
We review the denial of a section 388 petition after an evidentiary hearing for abuse of discretion. (In re Stephanie M., supra, 7 Cal.4th at p. 318.)"' "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason." '" (Id. at pp. 318-319.)" 'The denial of a section 388 motion rarely merits reversal as an abuse of discretion.'" (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.) Where 10 there is conflicting evidence, we reverse only if the evidence compels a finding for the appellant as a matter of law. (In re I.W. (2009) 180 Cal.App.4th 1517, 1527-1529.)
III. Analysis
In the present case, the juvenile court determined that Mother did not prove the existence of a change in circumstance or the children's best interests were served by granting her request. Mother provided evidence that she completed anger management courses, would not face additional jail time related to her misdemeanor assault conviction arising from I.H.'s injuries, maintained stable housing and employment, participated in unsupervised visits, and enjoyed a strong bond with children that wanted to live with her.
Citing to Kimberly F., Mother argues that her alleged progress and strength of bond required the juvenile court to grant her section 388 petition for renewed reunification efforts. In Kimberly F., the court of appeal rejected a trial court's use of a simple best interest test - of comparing the household and upbringing offered by the natural parent or parents with that of the caretakers - in analyzing a section 388 petition. (Kimberly F., supra, 56 Cal.App.4th at pp. 526-530.) The appellate court then determined a list of factors that may be considered: the seriousness of the problem leading to dependency and the reason that problem was not overcome by the final review; the strength of relative bonds between the dependent children to both parent and caretakers and the length of time a child has been in the dependency system in relationship to the parental bond; and, the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been. (Id. at pp. 530- 532.)
Here, it cannot be disputed that Mother consistently engaged in appropriate and affectionate visits with the children, and she completed courses that were required by her case plan. These facts were understood and acknowledged by the juvenile court. The reasons provided by the juvenile court in denying Mother's request related directly to the "seriousness of the problem which led to dependency," and the "degree to which it 11 actually has been" ameliorated. (Kimberly F., supra, 56 Cal.App.4th at p. 532.) The juvenile court also properly focused on the children's permanence and stability when it considered the children's successful long-term placement with their prospective guardians.
Mother's argument that her lasting bond with the children and completion of classes required resumption of reunification efforts ignores the legally required shift in focus once her prior efforts failed. We acknowledge that a request for an order increasing the frequency and decreasing the supervision of visits for J.M. and A.M. would have likely promoted those children's best interests while also ensuring permanency through the establishment of a legal guardianship. However, that was not the request before the juvenile court, and it is not clear which specific services Mother was requesting as part of her proposed reunification case plan. In addition, the juvenile court's order did nothing to prevent her from continually seeking expanded visitation in a manner that is consistent with the children's best interests as long as they remain in a plan of legal guardianship.
Mother's section 388 petition contemplated further delay in permanency for children that had remained in out of home care for almost two years. Although Mother had made progress by participating in anger management classes, the circumstances before the court showed that Mother still lacked insight into the cause of I.H.'s severe injuries that remained unhealed. Based upon these circumstances, the juvenile court could reasonably conclude that the children were not likely to be returned to Mother's care within the additional six-month period. (See section 366.3, subd. (e)(4)&(f).)
In the context of an almost two-year dependency for the children, Mother's sincere efforts to maintain a bond and complete classes demonstrated changing, but not changed, circumstances. I.H. was still in a vulnerable state with a broken cervical vertebrae, and the children had already endured months of uncertainty while in out of home care. Throughout the course of the case and in her testimony supporting her section 388 petition, Mother never took responsibility for the child's injuries. Instead, she continued 12 to blame the hospital despite the juvenile court's express jurisdictional finding that she caused the injuries to I.H.
We are not unsympathetic to Mother's circumstance in which three children in a loving relationship are affected by the actions taken, and there is the prospect for restoration of her parental responsibilities - at least as to the two older children. However, the failure to acknowledge responsibility or offer legally adequate explanation for the injuries to I.H. creates a significant challenge to Mother. Considering the children's heightened need for permanence and stability, extreme severity of the injuries of I.H. that led to the children's removal, and inability of Mother to accept her role in causing those injuries, the juvenile court's decision to forego additional reunification efforts was not arbitrary or beyond the bounds of reason. Accordingly, we find the juvenile court did not abuse its discretion in denying the section 388 petition.
DISPOSITION
The juvenile court's orders are affirmed.
WE CONCUR: FRANSON, J., DE SANTOS, J. 13