Opinion
B315260
05-12-2023
In re B.K., A Person Coming Under the Juvenile Court Law. v. Susan S., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Jesse Frederic Rodriguez and Giselle Marie Achecar, under appointment by the Court of Appeal, for Defendant and Appellant Susan S. Dawyn Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Kimberly Roura, Senior Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 19CCJP01610) D. Brett Bianco, Judge. Affirmed.
Jesse Frederic Rodriguez and Giselle Marie Achecar, under appointment by the Court of Appeal, for Defendant and Appellant Susan S.
Dawyn Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Kimberly Roura, Senior Deputy County Counsel for Plaintiff and Respondent.
SEGAL, J.
INTRODUCTION
B.K. is 15 years old and has been diagnosed with autism spectrum disorder and intermittent explosive disorder. In 2019, when he was 11 years old, the Los Angeles County Department of Children and Family Services filed a petition under Welfare and Institutions Code section 300, subdivision (b), alleging that his mother, Susan S., overmedicated him and that her mental and emotional problems made her unable to provide regular care for him. The juvenile court sustained the petition, removed B.K. from Susan, and at the six-month review hearing maintained B.K.'s placement outside Susan's home. Susan appealed from the court's jurisdiction findings, disposition orders, and orders issued at the six-month review hearing, and we affirmed. (DCFS v. Susan S. (February 16, 2021, B300757, B305539) [nonpub. opn.] (Susan S. I).)
Statutory references are to the Welfare and Institutions Code.
The court also asserted jurisdiction over B.K.'s older sister, J.P., and removed her from Susan. The court subsequently terminated jurisdiction over J.P. following her 18th birthday. (DCFS v. Susan S. (February 16, 2021, B300757, B305539) [nonpub. opn.].)
At each subsequent review hearing, the court maintained B.K.'s placement with a caregiver. At the 18-month review hearing, the court terminated reunification services and set the matter for a selection and implementation hearing under section 366.26. Susan filed a petition under section 388 asking the juvenile court to return B.K. to her or to reinstate reunification services, to increase the frequency of her visits, and to allow unmonitored visitation. The court denied the petition and under section 366.26 appointed B.K.'s caregiver his legal guardian. Susan challenges the juvenile court's order denying her petition under section 388. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Juvenile Court Asserts Jurisdiction over B.K., Removes Him from Susan, and at the Six-month Review Hearing Maintains His Placement
In March 2019, after an investigation, the Department determined Susan was overmedicating B.K. because she believed B.K., like J.P., suffered from schizophrenia, even though doctors told her that B.K. did not. Susan gave B.K. a combination of prescription drugs that kept him sedated most of the day. The Department filed a petition under section 300, subdivision (b), alleging that Susan overmedicated B.K. or "'failed to administer [his] medication as prescribed'" and that Susan's mental and emotional problems rendered her "'unable to provide regular care'" for B.K. (Susan S. I, supra, B300757, B305539.)
The juvenile court detained B.K. and, under the supervision of the Department, B.K. stopped taking the medications Susan had been giving him. Psychiatrists assessed B.K. and adjusted his medications to help him manage the two medical conditions he actually had: autism and intermittent explosive disorder. Although B.K. engaged in some "self-harming behavior" and at times became agitated to the point of having a "'tantrum,'" his doctors reported he "displayed no symptoms of psychosis or schizophrenia," and a social worker who had previously worked with B.K. said, "'This is the best they have ever seen him.'" B.K.'s teachers and care providers observed B.K. showed "marked improvement" in his functioning when he stopped taking the medications Susan had been giving him. (Susan S. I, supra, B300757, B305539.)
In August 2019, approximately eight months after the Department began its investigation, the juvenile court declared B.K. a dependent child of the court. The court found that Susan "lacked insight into what was best" for B.K. and that she "'exaggerated'" B.K.'s symptoms, which made it difficult to obtain the correct diagnoses for B.K. and give the right medications at the appropriate dosages. The court expressed concern that Susan would resort to medicating B.K. if he acted out and that Susan did not yet fully appreciate "'the impact of her behaviors on [B.K.'s] quality of life.'" The court removed B.K. from Susan and ordered her to participate in individual counseling and therapy, take classes for parenting children with special needs, and have monitored visitation. (Susan S. I, supra, B300757, B305539.)
At the six-month review hearing under section 366.21, subdivision (e), the court found that, while Susan had substantially complied with her case plan, she "had not yet shown sufficient insight into her role in her children's circumstances." The Department reported instances where Susan accused social workers of failing to fill B.K.'s prescriptions and where Susan denied she exaggerated B.K.'s behaviors or overmedicated him. The court, finding that returning B.K. to Susan would create a substantial risk of detriment to him, maintained B.K.'s placement.
B. Susan Appeals, and This Court Affirms
Susan appealed, arguing substantial evidence did not support the juvenile court's initial or continued jurisdiction findings or the court's finding the Department made reasonable efforts to prevent or eliminate the need to remove B.K. She also contended the juvenile court, both at disposition and at the six-month review hearing, abused its discretion in removing B.K. and in ordering monitored visitation. We concluded substantial evidence supported the court's finding Susan caused B.K. physical harm by seeking out and giving B.K. medications to treat schizophrenia "despite a lack of medical support for that diagnosis." We also determined the record showed that, with the proper diagnoses and medications, B.K. was more alert, functional, and communicative, but that Susan continued her efforts to obtain prescriptions for medications she believed were necessary for B.K. (Susan S. I, supra, B300757, B305539.)
Citing evidence Susan's psychiatrist stated that it would take several months for Susan to "overcome her belief" B.K. was schizophrenic and that Susan needed treatment for her mental health condition, we also concluded substantial evidence supported the juvenile court's order removing B.K. from Susan. We cited evidence Susan "was reluctant to accept the fact B.K. was more functional and more independent without heavy doses of anti-psychotic medications." We held that substantial evidence supported the juvenile court's finding the Department made reasonable efforts to prevent removal by providing "'a litany of services,'" but that Susan continued to act against the advice of multiple physicians and caregivers. We concluded the court did not abuse its discretion in requiring Susan's visits with B.K. to be monitored. (Susan S. I, supra, B300757, B305539.)
Finally, we determined the juvenile court did not err in continuing B.K.'s placement and visitation orders following the six-month review hearing. We concluded substantial evidence supported the court's findings that Susan "continued to lack insight into the reasons B.K. was removed" and that, instead of accepting responsibility for her role in his removal, Susan "accused the Department of mistreating B.K. and conspiring against her." Therefore, we held that substantial evidence supported the court's finding returning B.K. to Susan would create a substantial risk of detriment and that the court did not abuse its discretion in requiring monitored visitation. (Susan S. I, supra, B300757, B305539.)
C. The Court Maintains B.K.'s Placement and Terminates Susan's Reunification Services
While Susan's first appeal was pending, B.K. continued to make progress in the care of his caregiver, Ms. C. The Department found B.K. had developed a "strong bond" with Ms. C., looked to her for comfort, and followed her directions "with no issues." The Department reported that Ms. C. expressed an interest in adopting B.K. if he did not reunify with his parents, but that Susan had made several allegations of abuse against Ms. C. While the Department had "no concerns" Ms. C. was abusing or neglecting B.K., the Department referred B.K. to a child abuse expert "due to the multiple abuse allegations" from Susan. After a forensic examination, the expert could not determine the cause of B.K.'s bruises, but said that the bruises were "non-pattern" and that B.K. "could have caused these bruises himself." The Department also investigated Susan's allegations and found no evidence of abuse by Ms. C. The Department reported that Susan demonstrated she still did not understand "what brought her to the attention of" the Department and that she continued to send emails accusing the Department of "lack of insight," "Child Neglect," and "Child Endangerment" and the juvenile court of ruling on "'feelings and concerns'" instead of facts. The Department observed that Susan's mental health issues continued to "misguide her to inaccurately perceive [B.K.'s] statements and actions and perceive[ ] that [B.K.] is being abused by [Ms. C.]." The Department reported that, while Susan rarely missed a visit with B.K., she frequently told B.K. that he would return home soon (even though the social worker told her it was inappropriate to discuss case-related issues with B.K.) and used her cell phone to take pictures of B.K. to document any bruises she saw on him. This conduct caused the monitor to end the visits early, sometimes after only 20 minutes.
At the 12-month review hearing under section 366.21, subdivision (f), the juvenile court found returning B.K. to Susan would create a substantial risk of detriment to B.K. and maintained his placement with Ms. C. The court continued reunification services for Susan and ordered that "[n]o one is to discuss the petition allegations with [B.K.]." The court subsequently issued an order prohibiting Susan from bringing her cell phone to visits with B.K.
In January 2021 B.K. moved to the home of a new caregiver, Ms. W., after Ms. C. stated she could no longer care for B.K. because Susan had made so many unfounded allegations of abuse against her and she felt "accosted" by Susan. B.K. had resided with Ms. C. for almost two years. On his last day with Ms. C., when the monitor picked up one of the boxes containing B.K.'s belongings, B.K. began to cry and "clung to" Ms. C. when she hugged him.
For the 18-month review hearing under section 366.22, the Department reported that Susan "had not come to terms" with the reasons the juvenile court removed B.K. from her care and that she continued "to be fixated with proving that the Department and the juvenile court system illegally detained [B.K.,] instead of taking responsibility for her actions." The Department concluded Susan had not gained "sufficient insight as to what brought her to the attention of" the Department or "how she can prevent future misreporting and over medication." The Department reported that Susan continued to send emails claiming the petition "was wrongfully sustained." In one email Susan sent to various public officials, she asserted the "reasons" the Department became involved "were based upon lies." In an email to a social worker, Susan claimed the Department's "perception" of her was "inaccurate." Susan's psychologist observed on February 2, 2021 that Susan remained "entrenched in her belief" B.K. "suffered setbacks" in his "psycho-emotional functioning" under the juvenile court's supervision.
Meanwhile, Susan wrote a letter to the juvenile court stating she had reflected on the reasons the Department became involved with her family. Susan acknowledged her reaction to the removal of her children "furthered the original misperception of [her] as a Mom." Susan also stated that she had learned "there is no perfect combination or dosage that is guaranteed to be effective at any given time" and that "medication should not be the first response when it comes to kids with autism[ ] and/or mental health issues." Susan described how she put into practice the techniques she had learned to help B.K. calm down when he was "in crisis."
At the March 2021 hearing under section 366.22 the court found that Susan had made substantial progress toward alleviating or mitigating the causes necessitating placement, but that returning B.K. to Susan would create a "substantial risk of detriment" to him. The court terminated reunification services and set the matter for a hearing under section 366.26.
D. The Juvenile Court Denies Susan's Petition Under Section 388 and Selects Legal Guardianship as the Permanent Plan Under Section 366.26
Four months later, Susan filed a petition under section 388 asking the court to return B.K. to her home or, in the alternative, to reinstate her reunification services, liberalize her visitation, and grant her unmonitored visits. Susan argued that, because B.K. received "extensive in-home support services" while he resided with his caregiver, those same service providers, along with people at his school, could ensure B.K. was safe in Susan's home by providing the court with "feedback and updates." Susan also pointed out that the caregiver could provide permanence only through legal guardianship and only with the Department's support and ongoing services. Susan argued placing B.K. with her and reinstating reunification services would be better for B.K. because she had "the most extensive understanding of [B.K.'s] service history" and "already has the knowledge in and capability of coordinating all of [B.K.'s] services." Reinstating reunification services, Susan claimed, would allow her to continue working with B.K.'s providers "in ensuring [B.K.'s] ongoing care."
In response to Susan's section 388 petition, the Department argued Susan failed to provide new evidence or demonstrate a change in circumstances. According to the Department, Susan continued to deny the allegations in the case and failed to take responsibility for her actions as described in the sustained petition. As recent examples, the Department reported (among other things) (1) Susan posted on her social media account video clips showing her reporting to law enforcement that B.K. had bruises on his body and showing her husband Cory with photographs of those bruises; (2) a neighbor said that Cory insisted the neighbor and others look at photographs of B.K.'s bruises and that he (Cory) and Susan believed B.K. was schizophrenic; (3) Susan wrote an email stating that the Department's perception she overreacts was a "'false narrative'"; and (4) Susan wrote in another email she wanted photographs documenting B.K.'s foot fungus "to dispel" the Department's false allegation she "exaggerate[ed]" B.K.'s symptoms.
The Department also summarized several of Susan's recent visits with B.K., where she violated court orders by photographing B.K. (which again caused the monitor to end the visits) and discussed "case issues" with B.K. (which caused B.K. distress and prompted him to tell the monitor he wanted to leave). The Department concluded Susan's conduct during the visits demonstrated she still did not accept the Department's health evaluations of B.K. and, instead, was trying to uncover evidence of mistreatment or abuse. For example, the Department stated that, during a visit in July 2021, Susan said B.K. had a fungal infection on his toenail for more than six months, which had spread to his fingernails. The social worker told Susan that a medical team had not found any fungal infection on B.K.'s toe and that B.K.'s medical records documented the examination. During a visit one month later, the social worker saw Susan remove B.K.'s shoes and socks and take pictures and videos of B.K.; Susan seemed "startled" the social worker saw her, and the social worker told Susan the visit had to end immediately. Susan proceeded to "rant" that B.K. has been "abused and neglected in the care of" the Department, that B.K. had foot fungus for six months, and that "no one has done anything about it." As Susan proceeded to accuse the social worker of child abuse, B.K. became agitated and said he wanted to leave with the Department monitor. B.K. calmed down as he walked with the monitor to the car, but in the car B.K. showed "signs of agitation." When B.K. returned to Ms. W.'s home, he had a "'tantrum'" that included "'throwing things and repeating phrases.'" The Department said B.K.'s tantrums and outbursts placed him "at risk of self-harm."
The Department also prepared a report for the hearing under section 366.26. The Department stated there had been several physical and forensic examinations of bruises on B.K. but none had yielded "concrete evidence indicative of abuse." The Department observed B.K. had bonded with Ms. W., "and vice versa." The Department said that Ms. W. was "well aware of the needs of an autistic child" and was "patient" with and "attentive" to B.K., that she "provided stability" to B.K., and that moving B.K. to a potential adoptive home would be "detrimental" to B.K.'s mental health. Ms. W. said she was willing to consider providing a permanent home for B.K. in the form of a legal guardianship, so long as the case remained open and she could receive support from the Department.
Ms. W. was a special education assistant at an elementary school and has an autistic sibling.
At the hearing on Susan's petition under section 388, an educational advocate for students with disabilities testified that, without Susan's involvement in advocating for resources for B.K., B.K. would not have received the considerable educational services the school district agreed to provide as part of a settlement agreement. The educational advocate stated the Department did not participate in the settlement agreement.
Counsel for Susan argued Susan was the only one who could provide B.K. with the educational services he needed. Counsel asked for "more reunification time" to allow Susan "to continue to engage in those services that is in [B.K.'s] interests." Counsel for Susan argued circumstances for B.K. had changed because he attended school "in a new school system," there was "a new social worker on this case," and thus "new eyes on this case." The Department argued that Susan had not shown changed circumstances and that granting any of the requests in Susan's petition was not in B.K.'s best interests.
The juvenile court found that Susan had not met her burden to show a change in circumstances and that granting the petition under section 388 was not in B.K.'s best interests. The court stated: "There has been no change in circumstances. If anything, there has been a regression in [Susan's] mental health and in her behavior." The court found Susan had "more than ample time" to demonstrate B.K. could be safe in her care, but "that hasn't happened." Again stating that, "if anything, things have gotten worse of late," the court denied Susan's section 388 petition.
The court proceeded to the hearing under section 366.26. The Department asked the court to select legal guardianship as the permanent plan for B.K., with Ms. W., the current caregiver, as the guardian. Counsel for Susan objected and argued that B.K. wanted to return home to live with Susan and that the Department had improperly elicited statements from B.K. that he wanted to go to his placement home. Counsel for Susan argued Susan was "the only person who has consistently stepped up and is able to take on [the] lifelong commitment" of securing the "extensive services" B.K. needed.
The juvenile court observed that B.K. had to be placed with his current caregiver because Susan "sabotaged" his relationship with his prior caregiver. The court stated that Susan had regressed in the last several months and that "her mental health issues [were] getting the best of her." The court explained that the Department would not be able to provide services around the clock to adequately supervise B.K. and that, if the court placed him in Susan's care without that constant supervision, it would be "substantially harmful to [B.K.'s] well-being." Therefore, the court concluded, returning B.K. to Susan was not in B.K.'s best interests. The court found that returning B.K. to Susan would be detrimental and that legal guardianship was in his best interests. The court appointed Ms. W. his legal guardian, maintained jurisdiction over the case, and ordered monitored visitation for Susan. Susan timely appealed.
DISCUSSION
A. Applicable Law and Standard of Review
Section 388, subdivision (a)(1), provides in relevant part: "Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court." ""The petition pursuant to section 388 lies to change or set aside any order of the juvenile court in the action from the time the child is made a dependent child of the juvenile court." (In re Jasmon O. (1994) 8 Cal.4th 398, 415; see In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Malick T. (2022) 73 Cal.App.5th 1109, 1122; In re N.F. (2021) 68 Cal.App.5th 112, 120-121; In re J.M. (2020) 50 Cal.App.5th 833, 845.) "At a hearing on a motion for change of placement, the burden of proof is on the moving party to show by a preponderance of the evidence that there is new evidence or that there are changed circumstances that make a change of placement in the best interests of the child." (Stephanie M., at p. 317; see Malick T., at p. 1122; N.F., at p. 120; J.M., at p. 845.) "In determining whether the petitioning party has carried his or her burden, 'the court may consider the entire factual and procedural history of the case.'" (N.F., at p. 120.)
"'Not every change in circumstance can justify modification of a prior order.' [Citation.] The change in circumstances supporting a section 388 petition must be material." (In re N.F., supra, 68 Cal.App.5th at p. 120; see In re Malick T., supra, 73 Cal.App.5th at p. 1122 [the change in circumstances must be "'"substantial"'"]; In re J.M., supra, 50 Cal.App.5th at p. 845 [same].) When a parent files a section 388 petition "after family reunification services have been terminated, the juvenile court's overriding concern is the child's best interests. [Citations.] The parent's interests in the care, custody and companionship of the child are no longer paramount; and the focus shifts to the needs of the child for permanency and stability." (Malik T., at pp. 11221123; see In re Stephanie M., supra, 7 Cal.4th at p. 317; N.F., at p. 121.) "After reunification services have been terminated, there is 'a rebuttable presumption that continued foster care is in the child's best interests.'" (J.M., at p. 847; see Stephanie M., at p. 317.)
We review the juvenile court's finding Susan failed to show a substantial change of circumstances by determining whether the evidence compels a finding in her favor on that issue as a matter of law. (See In re Matthew M. (2023) 88 Cal.App.5th 1186, 1194; In re N.O. (2019) 31 Cal.App.5th 899, 925; In re Aurora P. (2015) 241 Cal.App.4th 1142, 1163.) Specifically, we determine whether "the evidence 'was (1) "uncontradicted and unimpeached" and (2) "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding."'" (In re Luis H. (2017) 14 Cal.App.5th 1223, 1227; see In re I.W. (2009) 180 Cal.App.4th 1517, 1528, disapproved on another ground in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.) We review for abuse of discretion the juvenile court's ruling that neither providing Susan additional reunification services nor returning B.K. to her was in B.K.'s best interests. (See In re Stephanie M., supra, 7 Cal.4th at p. 318; Matthew M., at p. 1194; In re J.C. (2014) 226 Cal.App.4th 503, 525-526.)
B. The Juvenile Court Did Not Err in Denying Susan's Petition Under Section 388
Susan argues the court erred in denying her section 388 petition because her circumstances had significantly changed and granting her request was in B.K.'s best interests. According to Susan, she "completed and complied with every juvenile court order" and expressed "her regret for her prior behavior and her insight into how her behavior impacted her case." Susan asserts she "is the best chance B.K. has of permanency and stability, accompanied by consistent, unconditional, love and care." The record shows, however, that although Susan's circumstances did in fact change, they changed for the worse and that returning B.K. to Susan or reinstating reunification services was not in B.K.'s best interests.
Susan did not make this argument in the juvenile court. Susan's petition under section 388 asserted that, if the court returned B.K. to her, the extensive services the Department had been providing the caregiver would protect B.K. At the hearing on the section 388 petition, counsel for Susan argued the changed circumstances were that B.K. was attending school in a new school district and that the Department had assigned a new social worker to the case. The juvenile court, however, appears to have considered Susan's compliance with the court's orders and her (lack of) remorse because the court found that Susan's mental health had "gotten worse" and that returning B.K. to Susan was not in B.K.'s best interests.
Although Susan's notice of appeal states she is appealing from the juvenile court's order under section 366.26 selecting the appointment of a guardian as the permanent plan, as well as the order denying her petition under section 388, Susan does not independently challenge the guardianship order. Susan asks only that we "reverse the juvenile court's order denying her section 388 and thereby reverse the section 366.26 order of legal guardianship."
1. To the Extent Susan Showed a Change of Circumstances, It Was the Wrong Kind
In finding Susan had "regressed" in the six months after the juvenile court terminated her reunification services, the court essentially found Susan had not demonstrated changed circumstances that would warrant returning B.K. to her care or reinstating reunification services. (See In re Malick T., supra, 73 Cal.App.5th at p. 1123 [parent must show "that circumstances have changed and would warrant further reunification services"].) The evidence did not compel a contrary finding as a matter of law.
Susan continued to refuse to accept responsibility for overmedicating B.K. and continued to seek medical treatment for him that he did not need. Susan's emails to the social worker and others suggested she still believed the Department's perception of her was "'false'" and that she had not misperceived or misunderstood B.K.'s behavior or injuries. In addition, Susan was fixated on her suspicion B.K. had toe fungus, despite the social worker informing her that a medical team had found there was no fungus (and that medical records documented the examination). Susan persisted in trying to prove the doctors wrong by taking photographs of B.K. during visits, contrary to the court's visitation orders. Her behavior during the visits- finding opportunities to disrobe B.K., obsessing about taking photographs of non-existent injuries or infections, and complaining about how the Department had allowed B.K. to be abused or neglected-agitated B.K., at times causing him to have tantrums. Her behavior had not changed, or at least had not changed for the better.
Susan's conduct also indicated she was still unwilling to accept the evaluation of health professionals and instead would continue, as she had all along, to insist on treating B.K. for conditions that he did not have. Indeed, according to Cory, Susan still (wrongly) believed B.K. was schizophrenic, which created the risk that, if the court returned B.K. to Susan, she was likely to reinstitute the regimen of medications that had caused him so much harm. Thus, as the juvenile court found, the circumstances Susan showed had changed (such as her worsening mental health) did not constitute a "substantial change of circumstances for purposes of section 388" because the changed circumstances did not resolve "the previously unresolved issues supporting juvenile court jurisdiction." (In re J.M., supra, 50 Cal.App.5th at p. 846; cf. In re I.B. (2020) 53 Cal.App.5th 133, 153 [section 388 "'is 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'"]; J.M., at p. 846 [mother "presented ample evidence that she had addressed the sole basis for juvenile court jurisdiction-domestic violence-as well as every other concern cited by the court in its order terminating reunification services"].)
Susan argues that, by requiring her to develop "'insight into what caused the removal of her children,'" the Department "was strong-arming" her to "stop blaming the Department for removing her special needs children." But whatever label Susan wants to attach to the Department's requirements, the juvenile court properly considered her failure to accept responsibility because it showed her circumstances had not improved. Susan's continuing accusations against the Department (for example, that the Department falsely accused her of exaggerating B.K.'s symptoms) confirmed she still did not recognize she had done anything wrong. (See In re A.R. (2015) 235 Cal.App.4th 1102, 1119 ["To support modification of a prior order, '[t]he change in circumstances must relate to the purpose of the order and be such that the modification of the prior order is appropriate.'"].)
Susan says she has expressed "regret for her prior behavior" and "insight into how her behavior impacted her case." She has not. Susan acknowledged in her emails how her mental health disorder may have caused her to overreact with social workers, but she did not admit she misunderstood or overreacted to B.K.'s behaviors and symptoms by seeking out unnecessary medications. In a letter to the court, Susan stated she had reflected on the reasons her family came to the attention of the Department (without saying what those reasons were) and admitted her reaction to the removal of her children contributed to the Department's misperception of her. Yet Susan did not acknowledge that her past misperception of B.K.'s needs led her to overmedicate him or that, when B.K. resided with caregivers, she erroneously suspected child abuse, even though the evidence showed he was healthy and displayed normal behaviors of an autistic child. And Susan's actions-accusing the caregiver and social worker of child abuse and relentlessly pursuing evidence to prove her misconceptions-again showed her circumstances had not changed for the better. Even on appeal, Susan insists that, because B.K. continued to take Guanfacine and Thorazine for "'psychiatric reasons'" while in foster care, she "was right about the medication B.K. needed while in [her] care."
Susan wrote the emails and the letter to the court before the court terminated reunification services. Thus, this evidence is not really probative of whether and how her circumstances changed from the date the court terminated reunification services in March 2021 to the date the court heard the section 388 petition in September 2021. (See In re J.M., supra, 50 Cal.App.5th at p. 846.)
Susan was not right. The report Susan cites states that the daily dosage of Thorazine B.K. was taking in August 2020 was 125 milligrams, half the amount he had been taking (along with high doses of other powerful anti-psychotic drugs) before the Department intervened. And while B.K. was residing with Susan, he was not taking Guanfacine, which is a medication used to treat attention deficit hyperactivity disorder. (Susan S. I, supra, B300757, B305539.)
Finally, contrary to her assertion she complied with all of the juvenile court's orders, Susan violated court orders prohibiting her from discussing case issues with B.K. and from taking pictures of him during visits. As for the classes and counseling the court ordered, it is true Susan completed them, but they do not seem to have made any difference. "'[S]imply complying with the reunification plan by attending the required therapy sessions and visiting the children is to be considered by the court; but it is not determinative. The court must also consider the parents' progress and their capacity to meet the objectives of the plan; otherwise the reasons for removing the children out-of-home will not have been ameliorated.'" (Georgeanne G. v. Superior Court (2020) 53 Cal.App.5th 856, 867.) The evidence did not compel a finding Susan met her burden to show (the right kind of) changed circumstances under section 388.
2. The Juvenile Court Did Not Abuse Its Discretion in Ruling That Neither Returning B.K. to Susan nor Reinstating Her Reunification Services Was in B.K.'s Best Interests
"The factors to be considered in evaluating the child's best interests under section 388 are: (1) the seriousness of the problem that led to the dependency and the reason for any continuation of that problem; (2) the strength of the child's bond with his or her new caretakers compared with the strength of the child's bond with the parent; and (3) the degree to which the problem leading to the dependency may be easily removed or ameliorated, and the degree to which it actually has been." (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223; see In re J.M., supra, 50 Cal.App.5th at p. 848.) None of the factors favored a finding that granting Susan's petition was in B.K.'s best interests.
The first factor weighed strongly against returning B.K. to Susan or reinstating reunification services. The dosages of psychotropic medication Susan (wrongly) gave B.K. caused his white blood cell count to drop and led to his hospitalization for possible serotonin withdrawal syndrome. In Susan S. I we observed the medications "kept B.K. in a near-catatonic state." And, as the juvenile court stated in sustaining the allegations in the petition, once off this medication B.K. "'was not a zombie anymore.'" (Susan S. I, supra, B300757, B305539.) Even more troubling was Susan's recalcitrance. B.K. will not be safe in Susan's care as long as she continues to refuse to take responsibility for overmedicating B.K. and to misunderstand the nature of B.K.'s heath issues (for example, obsessing for months over an imaginary case of toe fungus). Susan showed by her words and conduct that she will likely continue to seek treatment for B.K.'s "schizophrenia" because she still believes, contrary to the opinions of B.K.'s many doctors, he suffers from that condition.
The second factor also weighed against granting the petition. Susan and B.K. do have a strong bond, and the record shows B.K. usually enjoyed spending time with Susan. But B.K. was attached to Ms. W., who knew his likes and dislikes, gave him her full attention, and treated him with patience. And the quality of Susan's visits with B.K. declined as Susan continued to do things like discuss case issues with him, tell him he would be coming home soon, and secretly take pictures of him, conduct Susan knew would end her visits. Which explains why B.K. frequently asked to leave the visits with the monitor, not, as Susan asserts, with her. (See In re Mickel O. (2011) 197 Cal.App.4th 586, 617 [juvenile court did not abuse its discretion in denying the grandfather's section 388 petition because, although the children's relationship with him "was positive and important," the grandfather also created confusion and disruption "by talking about the case with the children and telling them they would be coming home"].)
The third factor too weighed strongly against granting the petition. In Susan S. I we cited a Department report submitted for the six-month review that stated "B.K. sensed Susan's agitation [during visits], which resulted in meltdowns, leading monitors to end visits early." Eighteen months after that review, not much had changed. Contrary to Susan's assertion, the mental health condition that prompted her to search incessantly for an injury on B.K.'s body where none existed has not been, nor does it appear it can be, easily removed or ameliorated. Susan completed a parenting program and many therapy sessions, but as her psychologist reported, Susan remained "entrenched" in the belief B.K. suffered psychologically and emotionally under the juvenile court's supervision. Susan repeatedly demonstrated she will do what she believes is best for B.K. and his medical needs, even when her belief is contrary to those of medical professionals. Returning B.K. to Susan or delaying his placement under a legal guardianship with Ms. W. would only mean more instability and uncertainty. The juvenile court did not abuse its discretion in concluding it was not in B.K.'s best interests to return him to Susan or to reinstate reunification services.
Susan argues she "has been B.K.'s strongest supporter in this case." While that may have been true when it came to securing special education services from the school district, the juvenile court properly prioritized the overriding goals of permanency and stability for B.K. (See In re J.C., supra, 226 Cal.App.4th at p. 527 ["after reunification services have terminated, a parent's petition for either an order returning custody or reopening reunification efforts must establish how such a change will advance the child's need for permanency and stability"].) As discussed, Susan's misguided beliefs about what B.K. needed created a substantial risk of harm, and her behavior upset B.K. In contrast, Ms. W., with whom B.K. had developed a bond, provided stability for B.K. and was committed to giving him a permanent home as his legal guardian. In addition, Ms. W. has a background in special education. With the support of the Department and its resources, Ms. W. will be able to advocate for B.K.'s special education services. Susan did not rebut the presumption that continuing B.K.'s current placement was in his best interests. (See In re Stephanie M., supra, 7 Cal.4th at p. 317.)
Finally, Susan argues that, because Ms. W. could not commit to adopting B.K., Susan is the only one who can offer a permanent home for B.K. As discussed, however, returning B.K. to Susan without a sufficient showing of changed circumstances risked sending B.K. back to where he was four years ago, a highly unstable situation. At one time Ms. C. (who the juvenile court said was a "a perfectly wonderful woman") might have adopted B.K., but as the court observed, Susan "sabotaged" that relationship. Just another way Susan contributed to instability in B.K.'s life. That Susan does not grasp this hard truth further shows how returning B.K. to her would be detrimental.
DISPOSITION
The juvenile court's order denying Susan's section 388 petition is affirmed.
We concur: PERLUSS, P. J. FEUER, J.