Opinion
B313540 B317683
03-30-2023
In re T.P., et al., Persons Coming Under the Juvenile Court Law. v. TIFFANY P., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, Nos.CK38987, CK38987H, CK38987I Jean M. Nelson, Judge. Affirmed
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
COLLINS, J.
INTRODUCTION
This appeal arises from a decade-long dependency matter involving Te. and Ta., the two youngest of mother Tiffany P.'s nine children. Mother appeals from the juvenile court's denial of two petitions under Welfare and Institutions Code section 388.Mother's first petition sought to reinstate reunification services, which were terminated in 2014, and to expand mother's visitation. The juvenile court denied this petition after a hearing, finding that mother had not demonstrated changed circumstances. Mother's second petition, filed seven months after the first was denied, again sought to expand her visitation with the children. The juvenile court denied this petition without a hearing. Mother separately appealed the two rulings, and we consolidated the appeals. We find no error in either ruling and affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
In addition, mother contends the Los Angeles Department of Children and Family Services (DCFS) failed to comply with the requirements of the Indian Child Welfare Act (ICWA). DCFS contends this argument is moot, because the juvenile court has already ordered DCFS to comply with ICWA. We agree the issue is moot.
FACTUAL AND PROCEDURAL BACKGROUND
A. Previous opinion
Relevant background facts were set out in our previous opinion, In re T.P. (Feb. 6, 2020, No. B297465) (nonpub. opn.). The summary here has been edited and paraphrased to include only context relevant to this appeal.
Te., born in January 2009, and Ta., born in February 2010, as well as three of their siblings-Tr., age 14; Ty., age 6; and M., age 5-came to the attention of DCFS in April 2012. The reporting party said that if the children soil their clothing, "the mother becomes very angry and the children don't show up to school for days." Mother denied the allegations. Mother admitted that she had a criminal history, past DCFS history, and issues with domestic violence with the children's father, Michael B. (father).
Father told DCFS he was father to Ty., M., and Ta., and he "recognized [Te.] as his own child even though he is not the biological father." Mother reported that Te. was conceived as the result of a rape, and his biological father was unknown.
On May 1, 2012, DCFS received another referral regarding Tr., age 14, alleging physical abuse by mother. The reporting party said Tr. was "afraid to go home because the mother threatened to beat him" after one of the younger children got a cut on his hand while Tr. was watching the children. Tr. told the reporting party that mother had trained the children to lie to social workers, and "if they do not lie, she will beat them." "On one occasion, the mother beat one of the children to the point that they sustained a laceration to their head, and the mother super glued the laceration instead of seeking medical attention." Mother again denied the allegations.
Tr. reported that M., age five, was required to stand in the corner daily for two to three weeks, and he "could only move to eat and go to the bathroom and if he moved he would get slapped." The day before M. turned five, mother had been slapping him in the face, causing his nose to bleed. Mother took M. to the sink to clean his nose, then threw him to the floor, causing his head to "bust[ ] open." Mother panicked and searched the internet for instructions on what to do, and told Tr. to hold M.'s head closed in an attempt to stop the bleeding. Mother went to the store, and when she came back she put super glue on M.'s head to close the skin. Mother instructed the children to lie about what happened to M., and made them practice telling the story to ensure they got it right. Tr. said mother would not send the children to school when they had marks from her beating them.
On May 4, 2012, DCFS detained the children. Ty. confirmed many of Tr.'s allegations. M. reluctantly told the CSW that his head had been injured after mother dropped him on the floor; M. "went on to report that he was being punished because his mother was mad at him for not saying Good Morning to her the right way."
Mother had four additional children, then ages 18, 17, 10, and 7, who were not in mother's custody. The detention report noted that mother had an "extensive prior DCFS history." Referrals for abuse and neglect dated back to 1998. In 1999, mother was convicted of felony infliction of injury on a child. (Pen. Code, § 273.) Reunification services for her "three older children," apparently including Tr., had been terminated, with legal guardianship established with the children's maternal grandmother. Another child, born in 2001, had been adopted in 2006 after mother's parental rights were terminated. Mother's rights regarding another child were terminated in 2004. In 2010, DCFS found a substantial risk of emotional abuse and general neglect as to Ty., M., Te., and Ta. due to domestic violence between mother and father. Mother and father were reunited with the children and the case was closed.
DCFS filed a juvenile dependency petition on May 8, 2012, alleging 10 counts under section 300, subdivisions (a), (b), and (j). The counts alleged that mother physically abused the children, and that father knew of the abuse and failed to protect the children. On June 26, 2012, the parties entered into a mediation agreement that provided for the dependency petition to be amended and sustained on one count under section 300, subdivision (b).
Mother had unmonitored visitation with the children at times. Following reports that mother continued using physical punishment on the children, as well as mother's arrest in November 2013 for driving under the influence (DUI), the court ordered that mother's visitation be monitored. On February 21, 2014, the court terminated family reunification services for mother.
Te. and Ta. both had behavioral problems. A status review report dated February 19, 2015 stated that Te. "displays physical aggression, cries excessively, disregards directives, and screams excessively when things don't go his way." Ta. had been diagnosed with autism spectrum disorder and had severe temper tantrums that put him at risk of injuring himself. A status review report dated August 27, 2013 stated that Ta. had as many as eight tantrums or "meltdowns" in a day, during which he would bite or kick his caregivers, or attempt to hurt himself by banging his head on the wall or throwing himself down on a tile floor.
In late 2016, the court granted legal guardianship to Te. and Ta.'s foster parents. A status review report dated April 4, 2017 stated that Ta., now age seven, continued having behavioral issues, including becoming "increasingly defiant and aggressive. When tantrumming minor kicks, hits, and screams for multiple hours." He had thrown items and broken a door in the home. While driving to an emergency psychiatric appointment, Ta. "took off his seat belt and was shaking the [guardian's] seat as she was driving."
Parental rights were terminated as to M. on July 17, 2018. A status review report filed March 8, 2019 stated that Te. and Ta.'s "behaviors continue[d] to escalate[ ]." Te. told a CSW in January 2019 that he no longer wanted to see mother, because "I just don't think she's a nice person." The status review report noted that the behavior of Ta., age nine, "continues to spiral. Legal Guardian and CSW have increased concerns regarding minor's inability to practice safe behaviors while sitting in the car. Legal guardian will not transport [Ta.] without a second adult in the car on many occasions.... When [Ta.] is excited to reach his destination, he will attempt to open the door while the car is in motion in an attempt to jump out of the car. When upset or agitated [Ta.] will refuse to put his seatbelt on upon entering the vehicle or take the seatbelt off. [Ta.] will scream without warning startling the driver, [Ta.] kicks the front seats, leans forward and bangs his head on the seat in front of him. Transporting minor has become a huge safety concern to and from visits. As a result, CSW has attempted to obtain a second Department employee to travel with minor."
Citing transportation issues and the boys' increased extracurricular activities, DCFS proposed a new visitation schedule of one visit per month for one hour with mother, one visit per month for one hour with father, and one sibling visit per month for two hours. At the permanency planning review hearing on March 19, 2019, mother objected to "the department's recommendation that visitation goes down to once per month." The children's counsel agreed with DCFS's recommendation, and noted that transportation of Ta. was a safety issue. The children's counsel also noted that the children get emotional regarding the visits, Te. said he does not want to visit mother anymore, and "[m]y clients have been through more than enough with this case, and I don't think they need to be subjected to it anymore." DCFS submitted on the recommendation and joined the arguments of the children's counsel.
The court ordered that "mother's visits occur one time a month, one hour at a time." Mother appealed that order, and a different panel of this division affirmed it. (In re T.P., supra, B297465.)
B. Facts relevant to mother's October 2020 section 388 petition
1. Disruption of permanency plan
On April 17, 2019, Te. and Ta.'s legal guardians informed DCFS that they were no longer able to care for Ta. and they wanted to dissolve the guardianship for him. DCFS re-placed Ta. On June 10, the legal guardians for Te. and Ta. said they wanted to dissolve legal guardianship for both children, but remain as foster parents to Te. The court terminated legal guardianship for Ta. on July 1, 2019.
While that change was pending, last-minute informations filed in May and June 2019 stated that Te. had not wanted to visit with mother or take her calls since January, and mother had not called him since February. On June 10, Te.'s guardian said mother had called to speak with Te. twice in the past month, but Te. refused to speak with her.
After Ta. moved to his new placement, he told the CSW he did not want mother to have his new contact information. Ta. said he did not want to visit with mother because "his mother yells too much and it makes him both sad and angry." After one phone visit, according to Ta.'s new caregiver, Ta. "ran into the bathroom screaming and crying" with "an excruciating pain cry I have never heard before." Ta. apologized after coming out of the bathroom, and said he wanted to see mother at the next visit. Ta.'s behavior problems continued in his new placement, however; he had threatened to kill another foster child and "refused to respect personal space and boundaries with [the] youth he threatened."
Mother had a visit with Ta. in February 2019 and was appropriate for some of the time, but she became confrontational with a store clerk while Ta. was with her. In April 2019, the DCFS assistant regional administrator (ARA) "received word of mouth that mother had verbally threatened the life of ARA and various other DCFS staff." DCFS requested that mother's visits occur only at the DCFS office.
In August 2019, Ta. was re-placed to a new foster home following several behavioral outbursts, refusal to go to school, and an incident involving police. Ta. was removed from the next home as well, and placed in an "extended visit" with the family caring for Ty.
In October 2019, the legal guardians filed a request to terminate guardianship for Te. and requested that he be removed from their home. The guardians stated that Te.'s escalating aggressive, violent, and destructive behaviors posed a danger to himself and others. The court terminated guardianship for Te. on December 11, 2019.
Meanwhile, Te. continued refusing to visit mother, stating, "I don't like her." Te. requested that he not be in the courtroom at the same time as mother. Te. and Ta. both refused to have telephone contact with mother. Te. and Ta. both had regular visits with their father and siblings.
Te. and Ta. were placed together in a caregiver's home on October 8, 2019. In October or November 2019, Ta. was admitted to the hospital on a section 5585 hold after "experiencing a meltdown at school where he bit and kicked the school principal, destroyed school property, throwing [sic] chairs, and refused redirection." Ta. was discharged and released to his caregiver on November 19. On November 28, Ta. was again admitted to the hospital on a section 5585 hold; a last-minute information stated that he was due to be discharged on December 5. The caregiver had requested assistance with Ta. from law enforcement and the psychiatric emergency team. Ta.'s behaviors included kicking holes in screen doors, trying to break a window in the home, running away from the caregiver in public places, hanging his body out of the car while the car was in motion, destroying property at a store, refusing to go to school, running away from school staff, and making false allegations of abuse. On December 2, the caregiver asked that Ta. be removed from her home.
One report states that the hospitalization occurred on "10/18/2019," and another report states the hospitalization occurred on "11/18/2019." It is unclear which of these is correct. Both report that Ta. was discharged on November 19, 2019.
The Children's Civil Commitment and Mental Health Treatment Act of 1988 (§ 5585 et seq.) provides that a minor who, "as a result of mental disorder, is a danger to others, or to himself or herself," may be taken into temporary custody for evaluation and treatment. (§ 5585.50, subd. (a).)
DCFS stated in a last-minute information on December 11, 2019 that it was "preparing a 388 to terminate the mother's phone calls and visits with the children.... [Mother's] conversations with the children have continued to be inappropriate, and her behavior disrespectful and abusive toward the DCFS staff, when redirected." Following a child and family team meeting in December 2019, mother convinced DCFS to give her another chance and not file the section 388 petition. In January 2020, the court appointed an expert under Evidence Code section 730 to assess "mother's ability to visit the children without imposing her emotions on the children and discussing case issues" and whether visits would be detrimental.
Ta. was placed in a new home on December 16, 2019, where he stayed for 24 days. The caregiver asked that Ta. be re-placed after Ta. smashed a framed photograph of the caregiver's recently deceased father and threatened to cut the caregiver and another child with the broken glass; "trashed his bedroom" by destroying toys and other items; opened kitchen cupboards and threw their contents onto the floor; threw an object, hitting the caregiver on the forehead; played with the burners on the stove; and told the caregiver to "suck his dick." After involvement of the police and the psychiatric emergency team, DCFS removed Ta. from the home and re-placed him. The January 21, 2020 status review report noted that Ta. was receiving inconsistent mental health care "due to the child's numerous replacements in such a short period of time. [Ta.] has been in 4 different placements in the past 3 months, and in a total of 12 placements to date."
2. April 29, 2020 section 366.26 report
The April 2020 section 366.26 report stated that Ta. had been diagnosed with attention deficit and hyperactivity disorder (ADHD), along with his existing autism spectrum disorder diagnosis. Ta. was on various medications to treat his disorders, and participated in individual therapy and other services. Te. had been diagnosed with bipolar disorder and ADHD; he was doing well on medication and was in therapy.
In September 2019, mother had a visit with Ta. at the DCFS office. Mother complained that all the visit rooms were full and the visit had to be held in an alcove, commenting to a passer-by that if DCFS stopped taking children from their parents this would not be an issue. Mother tried to talk to the CSW about a check for court, and the CSW redirected mother to focus on the visit with Ta. Mother shouted at the CSW, "Do not tell me what to do[.] I asked nicely. I'm grown, don't tell me what to do." Mother and Ta. played for a little while on her phone, and "Mother held [Ta.] in silence for nearly 15 minutes while he played games on her tablet." The remainder of the visit was unremarkable.
In December 2019, Ta. did not want to have contact with mother. He stated that mother talks about things that make him sad, and when "someone tells her something she cusses."
On March 13, 2020, Te. was re-placed to the home of Ms. B., the foster parent who was also caring for M. On April 15, Ms. B. reported that mother had spoken with Te. on the phone once, and had not visited him.
A status review report dated November 3, 2020 stated that Te. remained in Ms. B.'s home Te. was "doing well and is in the process of being gradually taken off psychotropic medication." Ta. remained in the home of Mr. M., where he had been placed in September 2020. Mr. M. did not report "any extreme behavioral outbursts," but "expressed concerns with [Ta.'s] behavioral tantrums and testing of boundaries."
On August 4, 2020, mother had a monitored visit with M., Te., and Ta. Mother brought the children food and candy, and watched them play together. The CSW noted that the children felt comfortable in mother's presence, they hugged her, and she told them she loved them. As the children painted and drew, they sought mother's approval; the CSW noted that mother "had difficulty praising the children on their art work [sic]."
At another visit with the three children on September 10, 2020, mother again brought food and candy for the children. Mother "talked to the children about respecting one another, their caregivers, and taking care of one another. The mother kept the conversation appropriate during the visit."
Mr. and Mrs. C., the caregivers of another sibling, Ty., expressed interest in adopting M. and Te. They were also potentially interested in adopting Ta., if appropriate services could be provided for him. (Mother's and father's parental rights had been terminated as to M. and Ty.) Te. stated that he would like to be adopted by the C. family. Ta. stated that he would like to return to mother's care, but if that was not possible, he would like to be adopted by the C. family.
3. October 2020 section 388 petition
On October 23, 2020, mother filed a petition under section 388 requesting that Te. and Ta. be returned to her care, or that reunification services be reinstated, or for increased visitation. Mother's petition stated there was a change in circumstances because mother had completed drug treatment, weekly testing, a DUI program, and individual counseling. Mother stated that the Evidence Code section 730 evaluation was pending, and she had "taken the concern of DCFS/Court seriously and made persistent efforts to address the reasons the children were removed." Mother stated that the children would benefit from the change in orders because they "are older and there is a strong preexisting bond shared between them and" mother.
Mother submitted a letter addressed to the judge, stating that her involvement in various programs "have helped me learn from my mistakes, learn from them and grow into a better person today." Mother stated that she had completed drug treatment programs, including a court-ordered DUI program, and she was committed to sobriety. She was also seeing a therapist, and stated, "I am committed to continuing to treat mental health issues and work with my therapist to learn from my prior mistakes." Mother said she and the children enjoy their visits, and she requested that the visitation and phone calls be increased. Mother said she was separated from her husband and had a two-bedroom apartment "where it is safe and loving." Mother contended that she would provide a more stable home than the multiple placements the children had experienced.
Mother's letter also stated that "DCFS has already made up their minds about my sons['] futures. I am not given any proper consideration when it comes to my accomplishments and have been met with disregard when I seek out their assistance in any matter to help my children. I still have the rights to my kids and I feel it [is] unfair to rule me out altogether, especially when I was on such a fast track to getting my kids back prior to my horrible mistake to drive while intoxicated." Mother stated that she was working on her issues in therapy, and she "hope[d] that you will see through the various snags/complaints that the dept [sic] keeps finding to say about me. It is obvious at this point that they do not share my same goals, so it makes it extremely challenging to ever have the ideal relationship with them." Mother asked again that reunification services be reinstated, including conjoint therapy with the children, which would "enable us a chance to heal together and address their needs as we move forward."
On November 3, 2020, a one-page letter written by clinical and forensic psychologist Nancy Kaiser-Boyd was filed with the court. Dr. Kaiser-Boyd stated that she had completed an interview and psychological testing of mother, and observed a monitored visit with mother, Te., and Ta. Dr. Kaiser-Boyd stated that mother's test results "are a very significant concern. Individuals with similar test results have a deeply ingrained personality disorder. She is very elevated on Scale 4, which is associated with impulsivity, poor judgment, defiance of legal and social rules, and acting out. She is very elevated on Scale 6 which is seen in individuals who blame others (projection) for their problems and feel justified in acting out against authority. The two-point code is seen in individuals who are chronically angry and combative in their relationships. The referral issue focused on whether Mother would be able to keep from talking about the case issues and imposing her emotions on the children. Mother did not talk about case issues, but I observed that she spent a lot of time talking about herself rather than listening to things the children might have said." Dr. Kaiser-Boyd stated that she would like to speak with mother's therapist "before offering an ultimate opinion." She observed that Te. and Ta. "seemed to enjoy their visit" with mother, and "it seems reasonable to continue these monitored visits." Dr. Kaiser-Boyd suggested that mother provide a release so she could speak with mother's therapist, and said she "need[s] to speak to each minor about their feelings."
At a hearing on November 3, the court admitted Dr. Kaiser-Boyd's letter, and invited the parties to argue their positions as to whether mother's section 388 petition warranted a hearing. Counsel for the children argued that mother had not demonstrated changed circumstances, stating that the children had been under court supervision for eight years, and mother's recent completion of programs did nothing to alleviate the personality disorder noted by Dr. Kaiser-Boyd. Counsel for the children also asserted that it would not be in the children's best interest to reinstate reunification services or increase visitation with mother. Counsel for DCFS agreed, and noted that with the new permanency plan being implemented, the emphasis should be on strengthening the children's bond with the C. family and increased visitation with mother could undermine that. Mother's counsel argued that the court should allow a hearing, noting mother's involvement in drug treatment and counseling.
As discussed more fully below, a juvenile court may summarily deny a section 388 petition without a hearing if "the petition fails to make a prima facie showing (1) that a change of circumstances or new evidence requires a changed order, and (2) that the requested change would promote the best interests of the child." (In re Christopher L. (2022) 12 Cal.5th 1063, 1079-1080.)
The juvenile court held that mother made a prima facie showing "because she has completed two substance abuse programs and she is involved in counseling." The court therefore set a hearing for mother's section 388 petition. The court ordered that Dr. Kaiser-Boyd's full Evidence Code section 730 evaluation be completed before the section 388 hearing. The court ordered that mother's visitation remain the same in the meantime.
4. DCFS response to October 2020 section 388 petition
DCFS filed a response to mother's section 388 petition on January 22, 2021, recommending that the court deny the petition. The response stated that a DCFS investigator contacted mother about interviewing her and assessing her home in response to mother's section 388 petition seeking to reunify with the children. Mother responded that she would not be available for the investigator to see her home. Mother told the investigator on the phone that Ta. called her that morning, but "she was a little snappy with him because she was sleepy." Mother told the investigator that she felt misunderstood by DCFS, and "her passion for her children is often taken in a threatening manner. [Mother] reported that the only time she gets loud is when it's about her children."
Mother stated that she understood what the children were experiencing with their multiple placements, because she had experienced the same thing as a foster child. She said the children were "deteriorating in this system, and that was not the case before. When they were with me I could see my boys having a future. Yeah there were times when I would spank them. Yes, but that is how I was raised, that is what I knew. I had all these boys and I had to run a tight ship and make sure things were together." Mother stated that she had completed "3 parenting classes, 3 anger management classes, over 14 months of conjoint counseling with my husband, and individual counseling." Mother said her individual therapy began in August or September 2020. Mother said "a social worker testified falsely against her" about threatening someone at the DCFS office. At the end of this conversation, the investigator asked mother to call back to set up the interview and home assessment. The interview and assessment were not completed before the report was filed.
The investigator spoke with Ta.'s caregiver, Mr. M., about mother. Mr. M. stated, "She's hostile. From the time I met her until now it's been the same hostile behavior. It's like she's bipolar. One moment she can talk nice to [Ta.] and the next she is cursing and screaming." He added, "I wish I had something good to say about her, but I don't." Mr. M. also stated that he and Ta. had run into mother at the store, including one instance in late December 2020, and he had observed that mother smelled of alcohol.
Ta. told the investigator that he last visited with mother at a park in December, and he feels happy and safe when he is with her. When asked about where he would like to live, Ta. said he would like Mr. M. to be his legal guardian, or he would like to reunify with mother, or he would like to live with his brother's caregiver. When the investigator asked about mother yelling or cursing on the phone, Ta. asked "Is that bad, will she get in trouble[?]" The investigator said she just wanted the truth. The investigator noted that Ta. became guarded, and responded that mother sometimes curses on the phone. Ta. said he does not feel bad when mother curses on the phone.
The investigator spoke with Te. and M.'s caregiver, Ms. B., who stated that mother is easily agitated and curses in every phone call. When the investigator asked if the cursing bothered the children, Ms. B. responded that the children seem to think it is normal. When the investigator asked whether mother is ever calm or collected, Ms. B., responded, "I hate to say these things, but there is always an issue with mom."
Te. told the investigator that he wanted to stay living with his brother. The investigator asked what Te. would prefer if he were returned to his parents, and Te. said he would rather be with his father, because sometimes mother "starts to bring up things and yells and will get mad." Te. said mother curses during phone calls, but explained that she was not cursing directly at him. When asked how he feels about that, Te. said, "I don't know[,] whenever I talk to her she has always acted that way." When the investigator asked, "What way?" Te. responded, "The cursing and screaming." When asked to describe a phone call, Te. said, "First she asks me how is your day, then 2-5 minutes later she'll start yelling about stuff and cursing." Te. said mother does not usually yell and curse at in-person visits, but once she ordered pizza and "she started yelling and cursing at the pizza guy." Te. said he "felt embarrassed. She was loud. Everyone could hear." Te. nevertheless said he felt safe with mother and enjoyed his time with her.
The investigator spoke with M., who also said mother yells and curses on the phone. When asked what made mother mad, M. responded, "At the last visit she didn't like the jacket [Te.] had, because she felt it was too small. So when she was on the phone with me she asked me about having a jacket and if [Te.] had a jacket. She kind of went on and on. I was trying to reassure her that she had nothing to worry about and we both had jackets. So that's what made her mad, the jackets."
The investigator spoke with the CSW handling the case, who stated that mother "continues to be argumentative and confrontational over the phone." The CSW stated that mother "goes from high to low all the time" and engages in inappropriate conversations with the children. The CSW said mother's interactions with the children were "always about her" and when "[w]hen the children try to hug[ ] her or embrace her she pushes them away." She also noted that at a recent visit, mother became very angry with the pizza delivery person and "spent about 30 minutes arguing and yelling about the pizza during the visit." The CSW did not believe that mother would be able to successfully reunify with the children in light of her unresolved mental health issues, stating that mother "doesn't have insight. She's impulsive. She snaps on a dime."
DCFS recommended that mother's section 388 petition be denied, citing ongoing concerns about mother's mental health and her lack of insight into her mental health issues.
In a last-minute information filed February 8, 2021, the dependency investigator described an interview and home assessment with mother on January 22, 2021. Mother's home was clean and free of obvious safety hazards. When the investigator asked mother about her request that the children be returned to her care, mother told the investigator that she "only stated return the children home in her petition because her attorney told her to. [Mother] explained that she would like to be considered for reunification services at this time." Mother said she receives disability payments due to her mental health; she stated that her diagnoses were post-traumatic stress disorder, attention deficit disorder, severe anxiety, and depression. Mother described the medications prescribed by her psychiatrist, said she meets with a therapist by phone once per month, and had had five or six sessions with a psychologist. Mother said she did not want to sign a release allowing DCFS to speak with the psychologist because she did not want DCFS to be privy to the matters discussed.
Mother also had not signed a release to allow DCFS to speak with her DUI program, so the investigator was not able to confirm mother's compliance. The investigator "question[ed] the length of time it took for [mother] to complete the program," and noted that "it appears from the document provided by [mother that] she did not complete all of the program['s] requirements." The document mother provided showing her participation in the program indicated that from May 2017 to August 2020, mother attended most of the required sessions (26 group, 26 individual, 26 self-help, 6 alcohol education), but she also missed several sessions (2 group, 5 individual, 1 alcohol education), and she had not yet met the 6-session "re-entry" requirement. Mother's probation from her DUI terminated in November 2020. Mother reported that she attends an online AA meeting once per week, but she did not have a sponsor. Mother also stated that she does drink, saying to the investigator, "I don't profess to be sober. There are some things and situations that trigger me to drink. This conversation is a trigger because it has been very, very, very traumatic."
When asked about why the family came to DCFS's attention, mother attributed it to Tr. running away. Mother said she was a "bomb ass mom. I did things with my children. Activities and sports and crafts." Mother admitted that she "whooped" her then-seven-year-old daughter and was convicted of child cruelty, but "[w]ith [Tr.] I didn't even whoop him, he took off on his bike before I could even get out of the car. I didn't even touch him." When asked about the incident in which M.'s head sustained a laceration, mother said, "He fell and I couldn't take him to the doctor because of my past." Mother also said, "I realize now that my kids did live in fear of me and at the same time I thought that was a part of having respect." She also said, "I am trying to be the best me I can be today. I just want my kids back. My boys mean the world to me."
The last-minute information stated, "The Department acknowledges that [mother] has made progress. However, the Department is not confident that there has been significant change." It noted ongoing concerns by the CSW, the children, and the children's caregivers about mother's mental health and emotional stability. DCFS quoted extensively from the jurisdiction report dated June 6, 2012, which stated that "for nearly fifteen years, and with every child this mother has given birth to, she has come before this Court," in part due to mother's alcohol use and explosive anger. The 2012 report stated that although mother had received counseling and other services over several years, she "still needs to demonstrate an ability to communicate and calm herself in a healthy manner" and to "engage in more effective means of communicating with [the children] and to build them up." The 2012 report also stated, "Over the last fourteen years this mother has been involved with DCFS and this court on behalf of nine children." The last-minute information noted, "The concerns that were outlined in 2012, are very similar to the concerns that were noted by the [CSW] and supervisor" recently, as well as Dr. Kaiser-Boyd. DCFS therefore recommended that mother's section 388 petition be denied.
DCFS submitted a 17-page assessment of mother by Dr. Kaiser-Boyd, dated February 5, 2021. Dr. Kaiser-Boyd noted the origins of the 2012 dependency case including domestic violence between the parents and physical abuse of Tr. and M., as well as earlier DCFS involvement for domestic violence and an incident in which a daughter had "fresh belt marks covering 40% of her body."
Dr. Kaiser-Boyd noted that mother seemed to disagree with the autism diagnosis for Ta., because she felt Ta. did not exhibit the symptoms she would expect with autism spectrum disorder. Mother felt that Ta. was "sensitive" and was reacting to his multiple placements, and "she knows how he feels because her childhood was really similar, and she calms him down by just being a good listener and telling him she understands." Mother was aware that Ta. had problems in school, "but she also believes that this is because the teachers are overly negative with him." Mother did not know what medications Ta. was taking. Mother did note that when Tr. was returned to her care in 2012, "she felt good about getting him off medication." But Dr. Kaiser-Boyd noted that "then [Tr.] began having severe behavioral problems. [Mother] does not voice an understanding of the connection between taking him off medication and the problems that ensued. It is noteworthy that she blames [Tr.] for the 2012 case."
Dr. Kaiser-Boyd noted again that mother was "very elevated on Scale 4, which is associated with impulsivity, poor judgment, defiance of legal and social rules, and acting out. She is very elevated on Scale 6, which is seen in individuals who blame others (projection) for their problems and feel justified in acting out against authority. The two-point code is seen in individuals who are chronically angry and combative in their relationships. She is also elevated on 'ideas of persecution' and family issues.... Mother is additionally elevated on MMPI-2 scales 'Anxiety,' and on 'Marital Distress,' as well as 'Addiction Potential.' . . . Mother is elevated on Scale 8 on Social Alienation and Emotional Alienation, as well as Lack of Ego Mastery, Vonative (which means impaired emotional control). She is elevated on the Content Scale Antisocial Behavior, which is likely elevated because she admitted to behaviors from the past."
Dr. Kaiser-Boyd spoke with Te. and Ta. by Zoom. Ta., now age 10, had been placed with the C. family on February 3, 2021. Ta. said he wanted Te. and M. to live with him, and he also said he would like to live with either mother or father. Ta. said he would like to see mother more. Te., now age 12, continued living in the same home as M. and two foster brothers. Te. knew about the case history, and recalled that when living with mother, it "wasn't safe" and there was too much spanking. Te. said visits with both parents were fine and he said he would like to see mother more often. Te. wished that he and M. could live with Ta. and the C. family.
Dr. Kaiser-Boyd noted that she was not asked to opine on mother's section 388 petition. She recommended that mother continue individual therapy, in part to address "a somewhat combative approach to authority figures and interpersonal relationships, and rather considerable skepticism about the diagnoses or observations about her children, particularly [Ta.]. Although it is normal for a parent to have empathy for their child, and Mother commented frequently in these interviews about how [Ta.] reminds her of herself and her perilous sojourn though foster care, she thinks of herself as more knowledgeable than she is about children's problems." Dr. Kaiser-Boyd continued, "I am also concerned that she said she admitted to the 2012 allegations because her private attorney urged her to do so, so that she could get on with reunification." She noted that both Te. and Ta. asked to be placed together "even before asking to [be] returned to a parent."
A section 366.26 report filed February 19, 2021 stated that Ta. was in the care of the C. family, while Te. was still with his previous caregiver, Ms. B. DCFS was "still working on a permanent plan" for the children with the C. family. Ms. B. noted that Te. visited with mother once per month and spoke with her by phone twice per week; no problems were noted. Ta.'s former caregiver said that monitored phone calls with mother would "set him off. The mom would ask me how his day was. When I told her how he was acting, I would tell her that he is calling me a bitch. Then she would side with him. She would try to belittle me. Then it would trigger him.... I was told that she would sabotage his placements. She would amp him up." The former caregiver noted that Ta. did not have any issues after visiting with father. Mrs. C. stated that Ta. had visited mother a couple of times since being placed in her home, and he "seems ok when he visits her," and "[h]e isn't angry or unhappy after the visits." DCFS recommended that the parents' rights be terminated and that the children be placed for adoption.
The hearing on the section 388 petition was continued multiple times.
A last-minute information filed March 2, 2021 stated that mother tested negative for all substances on February 18, 2021, and tested positive for amphetamine and hydrocodone on February 23. DCFS noted that mother's prescribed medications could have caused the positive result. The last-minute information also stated that at a recent visit (no date was stated), mother was crying when the children and CSW arrived. Mother was upset that she had dropped Ta.'s birthday cake. The CSW noted that the cake was still in the box and edible, and encouraged the family to enjoy it despite the damage. Mother and the children ate, drank, painted, and sang happy birthday to Ta. Mother raised her voice and scolded M. when he said something about his sexual orientation; the "CSW observed [M.] shut down." When M. and Ta. attempted to hug mother at the end of the visit, they accidentally hit mother's chest. "The mother lost her temper and verbally lashed out at the children and CSW indirectly. The mother stated this is why she likes her physical space because the children don't know how to behave."
A status review report filed on April 8, 2021 stated that M., Te., and Ta. were placed with the C. family; Mr. and Mrs. C. stated that they were willing to adopt the three children. This was Te.'s sixth placement, and Ta.'s sixteenth. In the section about the family's perception of their needs, the report noted that both Te. and Ta. said they would like to be adopted by the C. family if they were unable to return to mother.
A last-minute information filed April 26, 2021 stated that Te. and Ta. "[b]oth stated that they are happy to be placed together in the home of Mr. and Mrs. C. and that they do not want to leave the home." However, Te. and Ta. were engaging in verbal and physical altercations with each other, and Mrs. C. was concerned that the ongoing physical fights could impact longterm plans to keep the children together. Ta. was struggling in school, but he was not yet eligible for certain services. Mrs. C. requested additional support for Ta. before moving forward with adoption. DCFS stated that additional time was needed to allow Te. and Ta. to adjust to the home before adoption could move forward.
The last-minute information also stated that mother had not yet provided DCFS with contact information for her mental health providers. When the CSW attempted to discuss mother's mental health services with mother, mother responded that "the only thing that needed to be discussed was her transportation assistance" to and from mandatory drug testing. Ten drug tests from February 18, 2021 to April 19, 2021 showed one negative result, two no-shows, and the remainder of the results positive for amphetamines, hydrocodone, and/or hydromorphone. On April 22, 2021 the supervising CSW (SCSW) called and texted mother in the morning to cancel the monitored visit scheduled for that afternoon. Mother apparently did not receive the messages and called the SCSW from the park after the visit was scheduled to begin. When mother discovered the visit had been cancelled, she "immediately became irate and started yelling and screaming at the top of her lungs. Mother made statements of she's tired of this bullshit, this is a bunch of shit and did not allow [the] SCSW to further communicate." The SCSW ended the call, but mother called back and screamed similar statements.
The last-minute information also noted that mother was overheard on a monitored phone call "attempt[ing] to coach [Te.] on the upcoming hearing. According to the caregiver the mother continues to struggle with discussing the court case and coaching the children with how they need to respond to the mother's attorney. Example: tell mommy's attorney, mommy is a good mom and you want to live with me, etc."
5. Hearing and ruling on October 2020 section 388 petition
At the May 4, 2021 hearing on mother's section 388 petition, mother testified that changed circumstances included separating permanently from her husband and finding a stable living situation. Mother also testified that she had been working on resolving the issues that led to DCFS involvement with the family. Mother stated that she had completed a 90-day outpatient substance abuse program and an 18-month DUI offenders program, she attended AA meetings, and she was in therapy to address underlying issues. Mother stated that her positive drug test results were due to her prescribed medications, which she took as needed. Mother stated that her efforts "have affected me in a positive, a very positive manner," because she has a support system and "suggestions on correcting behaviors that . . . stem from past trauma" and she has learned "how to focus on dealing with the issues."
Mother discussed her once-monthly visits with the children, which she described as "the highlight of my month." She stated that her visits are "always a very positive experience," and the children are always excited to see her. Mother said Te. and Ta. had expressed to her that they would like to visit with her more often. Mother admitted using profanity toward the SCSW after the recent cancelled visit because she was upset. Mother explained, "I had been planning that visit for quite some time. I spoke to the children the night before. We got everything together. I got up early that morning, cooked chicken sandwiches. Got their bags together. Got everything. I made sure I took it out the last minute so they could be warm." Mother said she had been waiting at the park for an hour before finding out that the visit was cancelled. Mother testified that when she spoke to the SCSW, the SCSW "very nonchalantly disregarded like, you know, 'well, oh, yeah, you know, I was going to call you but.' [¶] You know, it was just - it was ridiculous."
Mother testified that she wanted "more reunification services" and "more frequent contact with my children," because her previous "visitation was decreased based upon, you know, falsehoods." (Mother did not expand upon the nature of the alleged falsehoods.)
On cross-examination, counsel for DCFS asked about one incident leading to the 2012 petition in which mother hit M. and threw him to the floor, causing a head laceration. Mother denied this allegation, stating, "Absolutely not. And that was not in any of the allegations. I don't know where that's coming from." When asked about gluing M.'s head laceration closed, mother said, "It's not gluing. It was a cut. And liquid skin is a bandage. So I did not glue his head together. No, I did not. That's not in any of the allegations. So where is that coming from?" Mother also stated that a previous child born testing positive for amphetamines was a result of prescribed medication, and mother denied ever having an issue with substance abuse other than alcohol. When asked which step of the AA program mother was on, she answered "I'm on three. I haven't moved to four yet." Counsel for DCFS asked, "So you're on step three?" Mother responded, "Well, I'm working on getting to three." Counsel asked, "So what step are you on?" Mother responded, "I [am] not really doing any steps at this point," explaining, "I think I left off on four" before the pandemic. Mother denied cursing at the children during visits, and said she does not have a problem with the children hugging her.
The court invited the parties to address whether mother had met her burden to demonstrate changed circumstances before introducing any evidence regarding the best interests of the children. Counsel for mother argued that mother was making a good faith effort to address her issues, and "she absolutely loves her children, and she wants to do everything she can to address the problems that brought this case before the court." Counsel for the children asserted that mother had not demonstrated any significant changes from the issues that led to jurisdiction in 2012. Counsel for DCFS joined the children's arguments.
The court denied mother's section 388 petition. It stated that mother had presented some evidence of changing-but not changed-circumstances. The court stated that the psychological evaluation "is very telling in that it helps identify the problems that the department has seen over the years," but mother had not yet fully addressed those issues. The court also expressed concern that mother did not seem committed to addressing substance abuse. The court noted that mother continued to deny physical abuse of the children, and "I think this ties into what the 730 evaluator found, which is mother tends to think she's the persecuted one and does not take responsibility." The court stated that "mother has not made enough change, enough progress, enough acceptance of responsibility to expose the children more to mother." The court continued the section 366.26 hearing.
Mother timely appealed the court's order.
C. Facts relevant to mother's December 2021 section 388 petition
1. June to December 2021
An addendum report filed in the juvenile court on July 16, 2021 stated that in June 2021, Mrs. C. reported that the conflicts between Te., age 12, and Ta., age 11, were becoming more violent. On July 7, 2021, the C. family asked for Ta. to be re-placed following an incident in which Ta. became physically aggressive toward Mrs. C., M., and the family dog; the home's front door and floors were damaged. DCFS began searching for a caregiver who could take Ta., and requested additional time to move forward with a permanent plan for the children. Ta. was placed with a new caregiver on August 25, 2021.
A status review report filed on October 6 and an addendum report filed on October 12, 2021 stated that M. also had been moved out of the C. family's home; Te. remained with the C. family. When Te. was asked about a permanent plan, he expressed that "he does not want to be adopted in case he 'doesn't like it in the home later'. [Te.] reported wanting the ability to move from placement to placement and not wanting to be 'stuck' in one home forever." DCFS noted, "It seems he may have been influenced by conversations he has had with his birth parents. . . . Mother has reportedly encouraged [Te.] to move from the home of Mrs. [C.]." Te., who was in seventh grade, had recently been ditching classes with his friends and had been suspended for bringing a knife to school. The C. family had requested a mental health evaluation for Te.
The status review report also noted that Mrs. C. reported that before Ta. was moved, Te. and Ta. would engage in violent physical altercations three to five times per day, Ta. would purposely antagonize Te., the two could not be left alone together, and Mrs. C. had been injured trying to separate the children. Even the foster family agency social worker and the Intensive Field Capable Clinical Social Worker were unable to deescalate certain incidents. Ta. remained with the caregiver he was placed with in August, and was on a waiting list for intensive services foster care. Ta. had been expelled from his childcare facility for spraying staff and children with bleach, and for refusing to put down scissors even after law enforcement arrived. Ta. was taken to the hospital for a psychiatric assessment the same day, but was not admitted. Ta. said he would like to live with mother and father, or if that was not possible, with his former caregiver, Mr. M. In October 2021, Ta.'s current caregiver expressed interest in adopting Ta.
At a visit with mother on June 17, Te. and Ta. "antagonized each other the entire time during the visit which resulted in [Ta.] attempting to storm off several times." While walking back to the car, Te. and Ta. engaged in a verbal altercation that resulted in Ta. running away; the CSW "was able to stop and get to [Ta.] before he made it to the street."
On the way to a visit on August 25, 2021, Te. and Ta. engaged in verbal and physical altercations while in the CSW's car; when they arrived at the destination, Ta. tried to walk away. When mother tried to redirect Ta. and he refused to listen, mother told him, "People write these things down in my report." Ta. left the group later in the visit and refused to come back. As a result, the entire group had to move to get closer to him; mother and the children were visibly upset. The CSW informed mother that two monitors would be needed in the future because of the safety concerns inherent in Ta.'s running away from the group.
2. December 2021 section 388 petition
On December 8, 2021, mother filed a section 388 petition asking the court to expand mother's visitation. Her visitation remained set for monitored visits once per month, and she asked the court to instead order monitored visitation once per week or once every two weeks, with DCFS discretion to liberalize visits. In the section of the form petition asking what circumstances had changed, mother stated that the children had been in multiple placements and mother was "the only stable figure in the children's lives. The children enjoy their visits and are eager to visit with [mother] more." Mother attached a declaration of Edith Contreras, a former DCFS social worker who had monitored three of mother's visits from September to November 2021. Contreras stated that the children "enjoyed the time they get to spend with their mother" and "are warm and affectionate towards her." Contreras stated that mother was appropriate at visits, and "I did not observe any case discussion or concerning behavior at any of the visits." Mother also submitted a document from her therapist, Dr. Sheila D. Morris, setting out the dates of mother's therapy sessions from March to November 2021.
On December 17, 2021, the court denied mother's section 388 petition without a hearing. The court checked the boxes on Form JV-183 stating that mother's request did not state new evidence or a change in circumstances, and the proposed change did not promote the best interests of the children. The court wrote in the "other" section, "The Court denied Mother's 388 motion on May 4, 2021. The fact that Mother has continued in therapy and has had some good visits with her children is not evidence of [a] significant change of circumstances. Denial of the current 388 is also based on the court's findings made on May 4, 2021."
Mother timely appealed. We consolidated the two appeals.
DISCUSSION
Section 388 states that a parent "may, upon grounds of change of circumstance or new evidence, petition the [juvenile] court . . . for a hearing to change, modify, or set aside any order of court previously made." (§ 388, subd. (a)(1).) "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." (Id., subd. (d).) "A petition to change or modify a juvenile court order under section 388 must factually allege that there are (1) changed circumstances or new evidence to justify the requested order, and (2) that the requested order would serve the minors' best interests. [Citations.] The petitioner has the burden of proof on both points by a preponderance of the evidence." (In re D.P. (2022) 76 Cal.App.5th 153, 163.)
In determining whether to grant a section 388 petition, "[t]he court may consider factors such as the seriousness of the reason leading to the child's removal, the reason the problem was not resolved, the passage of time since the child's removal, the relative strength of the bonds with the child, the nature of the change of circumstance, and the reason the change was not made sooner." (In re Mickel O. (2011) 197 Cal.App.4th 586, 616.)
A. The October 2020 section 388 petition
1. Standard of review
Mother first contends the juvenile court erred in denying her October 2020 section 388 petition seeking additional reunification services and increased visitation with Te. and Ta. To be entitled to the relief requested in a section 388 petition, a moving parent must demonstrate the required showings by a preponderance of the evidence. (In re N.F. (2021) 68 Cal.App.5th 112, 122.) Because mother failed to carry this burden below, the question on appeal is whether the evidence compels a finding in her favor as a matter of law. (In re I.W. (2009) 180 Cal.App.4th 1517, 1528, disapproved of on other grounds in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010.) "Specifically, the question becomes whether the appellant's 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.'" (I.W., supra, at p. 1528.)
2. Analysis
Mother asserts her October 2020 section 388 petition should have been granted. She cites the evidence that she completed a drug treatment program and was attending therapy, and asserts, "As such, the evidence showed a substantial change in circumstances in Mother's participation in substance abuse programs and counseling, and [mother's] learning from these programs." She argues, "Yes, there would always be more Mother could do, but what she had done and learned through these programs was a significant change from Mother's situation seven years ago."
DCFS argues that mother's contention on appeal amounts to a recitation of the evidence and a conclusion, but fails to "identify any way in which the juvenile court erred in finding she did not show changed circumstances." DCFS also contends that mother's participation in certain programs was insufficient to show changed circumstances.
We agree mother did not meet her burden, either below or to show error on appeal. A section 388 petitioner "must show changed, not changing, circumstances. [Citation.] The change of circumstances or new evidence 'must be of such significant nature that it requires a setting aside or modification of the challenged prior order.'" (In re Mickel O., supra, 197 Cal.App.4th at p. 615.) Here, the juvenile court held that mother showed changing circumstances, not changed circumstances, and held that such changes were not sufficient to meet her burden under section 388. Mother offers no basis for finding that the juvenile court was incorrect as a matter of law.
Moreover, mother ignores the considerable evidence supporting the juvenile court's finding. In her testimony at the hearing, mother continued to deny the allegations of physical abuse that led to juvenile court jurisdiction, including denying that she threw M. to floor and caused him to injure his head-an incident confirmed by the children in 2012. Mother continued to act inappropriately around the children and struggled with emotional control. The children and their caregivers reported that mother typically yelled and cursed during her phone visits. Indeed, the evidence suggested that mother's triggers remained similar to what they were in 2012: it was reported in 2012 that mother would get upset about the children's clothing, and in 2021 M. stated that the last time mother was upset on the phone she was upset about Te.'s jacket.
The evidence also showed that mother continued to struggle with appropriate emotional responses to everyday upsets, such as the cancelled visit, the damaged birthday cake, and the children bumping her when they hugged her. And although mother's participation in therapy and completion of drug treatment are laudable, the evidence did not suggest that mother was taking sobriety seriously. Indeed, she told the social worker "I don't profess to be sober," Mr. M. told the social worker he observed mother smelling of alcohol in December 2020, and mother's testimony about the AA steps was inconsistent. In addition, the Evidence Code section 730 report suggested that some of mother's most concerning issues continued, including issues with impulsivity, judgment, defiance of legal and social rules, projection, blaming authority, addiction potential, and lack of emotional control.
Furthermore, mother's actions remained consistent with the problems DCFS had observed for two decades. As the February 8, 2021 last-minute information noted, nearly identical issues were detailed in the jurisdiction report from 2012, which in turn said that mother had been displaying similar issues in her 14-year history with DCFS. The 2012 report stated that although mother had received counseling and other services, she "still needs to demonstrate an ability to communicate and calm herself in a healthy manner" and to "engage in more effective means of communicating with" the children. DCFS noted that the concerns outlined in 2012 were very similar to recent concerns highlighted by DCFS and Dr. Kaiser-Boyd.
In short, mother has not demonstrated that her participation in programs and therapy constituted changed circumstances under section 388. Mother therefore has not demonstrated that the evidence presented below compels a finding in her favor as a matter of law.
Because mother did not demonstrate changed circumstances, we need not consider the second factor, whether a change would have served the best interests of the children.
B. The December 2021 section 388 petition
1. Standard of review
Mother also contends the juvenile court erred in denying her December 2021 section 388 petition without a hearing. A juvenile court may summarily deny a section 388 petition where "the petition fails to make a prima facie showing (1) that a change of circumstances or new evidence requires a changed order, and (2) that the requested change would promote the best interests of the child." (In re Christopher L., supra, 12 Cal.5th at pp. 1079-1080; see also Cal. Rules of Court, rule 5.570(d)(1) [the juvenile court may deny a section 388 petition that "fails to state a change of circumstance . . . or fails to show that the requested modification would promote the best interest of the child"].)
We review a juvenile court's decision to deny a section 388 petition without a hearing for abuse of discretion. (In re G.B. (2014) 227 Cal.App.4th 1147, 1158.) "In determining whether a parent has made a prima facie showing under section 388, we may consider the entire factual and procedural history of the case." (In re Daniel F. (2021) 64 Cal.App.5th 701, 711.)
2. Analysis
Mother contends the December 2021 section 388 petition established a prima facie showing of a change in circumstances in light of Ta.'s recent re-placement from the C. family's home, and Te.'s statement that he might not want to be adopted. Mother contends, "Clearly, this was a substantial change of circumstances since the court denied the section 388 petition[ ] in May 2021." Mother also points out that she had continued her participation in therapy between May and December 2021.
Unfortunately, the continued lack of permanency was not a changed circumstance for Te. and Ta. Both children had been in multiple placements since the beginning of the case in 2012. According to the October 6, 2021 status review report, placement with the C. family was Te.'s sixth placement and Ta.'s sixteenth. Moreover, mother herself may have been sabotaging the children's prospects for permanency. Ta.'s caregiver before the C. family said mother's calls would "trigger" Ta. and she would "amp him up" against the caregivers, and DCFS noted that Te.'s resistance to adoption arose after discussions with mother that included encouraging him to move out of the C. family's home.
Mother's continuing participation in therapy also did not constitute a changed circumstance. She was attending therapy at the time of the hearing in May 2021, and her December 2021 petition did not suggest any significant changes in this regard. As the juvenile court stated in its order denying the December 2021 petition, "The fact that Mother has continued in therapy and has had some good visits with her children is not evidence of [a] significant change of circumstances." Under section 388, the change of circumstances "'must be of such significant nature that it requires a setting aside or modification of the challenged prior order.'" (In re Mickel O., supra, 197 Cal.App.4th at p. 615, quoting Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485.) Mother's petition did not make such a showing here.
Moreover, mother did not demonstrate that the increased visitation she sought would be in the best interests of the children. She points out that the children enjoyed their monthly visits with mother. However, the evidence showed that visits were hard on everyone involved, with Te. and Ta. antagonizing each other, Ta. leaving the group and refusing to come back, and Ta. misbehaving while traveling to and from visits. Furthermore, to the extent mother's contact with the children influenced their ongoing lack of permanency, such as mother encouraging Te. to move out of the C. family's home, additional visitation could be detrimental to the children's best interest. (See, e.g., In re J.C. (2014) 226 Cal.App.4th 503, 527 ["Adoption gives a child the best chance at a full emotional commitment from a responsible caretaker"].) Mother has not demonstrated that the juvenile court abused its discretion in denying her December 2021 section 388 petition without a hearing.
C. ICWA
Throughout the case, mother and father denied any Indian heritage. In her opening brief on appeal, mother contends DCFS failed to satisfy its duty under ICWA to inquire with extended family members as to any possible Indian heritage. (§ 224.2, subd. (b).) DCFS filed a request for judicial notice attaching a juvenile court order dated July 21, 2022 requiring DCFS to interview extended family members about possible Indian heritage as required by ICWA. We granted the request for judicial notice.
DCFS argues that because the juvenile court has already ordered DCFS to make the required ICWA inquiries, this court can provide no effective relief and mother's ICWA contention is moot. Mother does not respond to this argument in her reply brief. We agree with DCFS that the issue is moot because it has already been addressed by the juvenile court. (See, e.g., In re D.P. (2023) 14 Cal.5th 266, 276 [a case becomes moot when the appellate court cannot grant any effective relief].) We therefore do not address this contention.
DISPOSITION
The juvenile court's May 4, 2021 and December 17, 2021 orders denying mother's section 388 petitions are affirmed.
We concur: CURREY, ACTING, P.J. STONE, J. [*]
[*] Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.