Opinion
F077193 F077254
09-24-2018
In re R.H. et al., Persons Coming Under the Juvenile Court Law. KINGS COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. A.H., Defendant and Appellant.
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 16JD0181, 16JD0182)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kings County. Jennifer Lee Giuliani, Judge. Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Before Levy, Acting P.J., Detjen, J. and Snauffer, J.
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Appellant Alexis H., mother of now four-year-old, R.H., and two-year-old, L.H., appealed from the juvenile court's March 7, 2018, orders denying her Welfare and Institutions Code section 388 petition and terminating her parental rights. After reviewing the juvenile court record, court-appointed counsel informed this court she could find no arguable issues to raise on appellant's behalf. This court granted Alexis (mother) leave to personally file a letter setting forth a good cause showing that an arguable issue of reversible error exists. (In re Phoenix H., (2009) 47 Cal.4th 835, 844 (Phoenix H.).) Mother filed an 88-page handwritten letter.
All statutory references are to the Welfare and Institutions Code.
Alexis filed separate notices of appeal in our case Nos. F077193 and F077254. On our own motion, we consolidate the appeals under case No. F077193. --------
We conclude mother failed to set forth a good cause showing that any arguable issue of reversible error arose from the termination hearing. (Phoenix H. supra, 47 Cal.4th at p. 844.) Consequently, we dismiss the appeal.
PROCEDURAL AND FACTUAL SUMMARY
In November 2016, the Kings County Human Services Agency (agency) took then two-year-old R.H. and 11-month-old L.H. into protective custody after mother was arrested for beating Tony, L.H.'s father. Mother assaulted Tony because he would not let her use his cell phone. The couple had a history of domestic violence and mother had a history of mental health issues, necessitating the agency's involvement the year before. Mother admitted not attending her mental health appointments because she did not believe she needed the services. The agency placed the children together with their maternal grandmother.
The juvenile court exercised its dependency jurisdiction over the children and ordered them removed from parental custody. The court ordered reunification services for mother as well as the fathers of the children and set the six-month review hearing for June 2017.
Mother and Tony remained an intact couple and were moderately compliant with their services plan. Mother attended a "Batterer's Intervention Program" but was not fully participating or demonstrating behavioral changes. She was hearing voices and her therapist was working on a modified therapy plan for her.
In June 2017, the juvenile court continued reunification services for mother and Tony at the six-month review hearing and terminated services for R.H.'s father. The court set the 12-month review hearing for November 2017.
Shortly after the hearing, mother had a verbal altercation with another client in her batterer's program. The dispute occurred because mother tested positive for methamphetamine after smoking marijuana with another client. She claimed she did not know she was using methamphetamine and the client tried to sabotage her. She had to be escorted out of the group. A week later, she had another verbal altercation during a group session. She became verbally aggressive with the group and stated she was going to "crack their heads." She was escorted out and asked to leave. She was discharged from that program and referred to another. In August 2017, the social worker conferred with Debra Parham, mother's therapist, about her progress. Parham said mother attended her appointments but remained mentally unstable. Parham believed mother was "very ill" as she heard voices and had strange ideas about her life. She believed mother needed medication and continued therapy.
In August 2017, the agency filed a modification petition asking the juvenile court to terminate mother's reunification services. The juvenile court granted the petition in October 2017, terminated reunification services and set a section 366.26 hearing for January 2018. Mother did not challenge the setting order by filing an extraordinary writ petition.
In its report for the section 366.26 hearing, the agency reported the children had been placed in separate homes with relatives who wanted to adopt them and agreed to maintain sibling contact. The agency opined the children were likely to be adopted and recommended termination of parental rights.
In January 2018, on the date set for the section 366.26 hearing, the juvenile court set the matter as a contested hearing in February 2018 at mother's request. Meanwhile, mother's attorney filed a section 388 petition (form JV-180) on her behalf seeking reinstatement of reunification services or family maintenance services. As changed circumstances, he averred that she completed a domestic violence course and a parenting class. He attached certificates of completion to the petition. He stated she was in counseling but stopped attending in November 2017 because she did not believe it was helping her. He attached a letter from mother stating how she thought she had changed. As to how mother's request would serve the children's best interests, her attorney said she was able to provide the children a safe and loving home. The court set a hearing on mother's petition. The agency recommended the court deny it.
On March 7, 2018, the juvenile court conducted a contested hearing under sections 388 and 366.26. Mother was the sole witness. She testified the children should be returned to her custody and it would be in their best interests because they need her, and she needs them. The children called her "Mommy" and told her they loved her. She graduated from a parenting class where she learned to be patient and understand the child. She also completed a domestic violence class and learned to diffuse volatile situations. She also learned not to yell in front of the children and to protect them. Tony was the perpetrator of domestic violence in her situation and she was the victim. She and Tony still lived together, and he had not completed a domestic violence class. However, she would protect the children by not exposing them to domestic violence. She and the children visited every month. They laughed with each other and she taught them new things. She enjoyed looking at them and getting to know them and their personalities better. The children also enjoyed seeing her.
The juvenile court denied mother's section 388 petition, finding mother failed to establish there had been a change of circumstances and that the children's best interests would be serviced by her proposed order. The court heard argument on the agency's recommendation to terminate parental rights and allowed mother to address the court. The court found the children were likely to be adopted and that none of the exceptions to adoption applied. The court terminated parental rights and selected adoption as the children's permanent plan.
DISCUSSION
An appealed-from judgment or order is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is appellant's burden to raise claims of reversible error or other defect and present argument and authority on each point made. If appellant fails to do so, the appeal may be dismissed. (In re Sade C. (1996) 13 Cal.4th 952, 994.)
Here, the juvenile court conducted a combined hearing under sections 388 and 366.26. Section 388 allows a parent to petition the court to change a prior order on the grounds that there is new evidence or circumstances have changed such that the proposed new order would better serve the child's interests. The parent bears the burden of proof by a preponderance of the evidence. (§ 388; In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Under section 366.26, the court's focus is on whether it is likely the child will be adopted. If the court finds the child is adoptable, it must terminate parental rights unless the parent proves there is a compelling reason for finding that termination would be detrimental to the child under any of the circumstances listed in section 366.26, subdivision (c)(1)(B).)
The juvenile court denied mother's section 388 petition, finding she failed to establish her circumstances had changed and that providing her reunification or family maintenance services served the children's best interest. The court found the children were adoptable, none of the exceptions applied and terminated parental rights.
Mother does not argue the juvenile court erred in denying her section 388 petition or terminating her parental rights. Instead, she seeks to persuade this court that she is a good mother and should have custody of her children. We conclude she failed to raise any arguable issues from the termination hearing that merit briefing. Though we are not required to, we have reviewed the record as it relates to the combined hearing under sections 388 and 366.26 and we have found no arguable issues for briefing. (Phoenix H., supra, 47 Cal.4th at pp. 841-842.) Accordingly, we dismiss this appeal.
DISPOSITION
This appeal is dismissed.