Opinion
G055472
12-13-2017
R.B., Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; ORANGE COUNTY SOCIAL SERVICES AGENCY et al., Real Parties in Interest.
Law Offices of Arthur J. LaCilento and Arthur J. LaCilento for Petitioner. No appearance for Respondent. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DP026050-001 & DP026051-001) OPINION Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, Dennis J. Keough, Judge. Denied. Law Offices of Arthur J. LaCilento and Arthur J. LaCilento for Petitioner. No appearance for Respondent. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Real Parties in Interest.
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INTRODUCTION
R.B. (mother) is the biological mother of minors E.J. and K.J., now 13 and 12 years of age, respectively. These children were removed from mother's custody in March 2015, when their half sibling, J.B., suffered nonaccidental leg fractures and other injuries. Mother denied causing the injuries, but was unable to provide any other reasonable explanation for them; therefore, the juvenile court denied her reunification services with the children.
In August 2017, the juvenile court denied mother's petition requesting reunification services and increased visitation with E.J. and K.J., pursuant to Welfare and Institutions Code section 388. (All further statutory references are to the Welfare and Institutions Code.) We deny mother's petition for a writ of mandate or prohibition challenging the juvenile court's order. Mother's section 388 petition failed to make a prima facie showing of changed circumstances and failed to offer sufficient evidence that the relief requested was in E.J. and K.J.'s best interests.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
1. Previous Juvenile Court and Appellate Court Proceedings.
The facts bringing E.J. and K.J. into the dependency system were set out in our unpublished opinion affirming the juvenile court's jurisdiction and disposition orders. (In re E.J. I (May 23, 2017, G054076), opn. mod. June 15, 2017 [nonpub. opn.]). We quote from that opinion here: "E.J., K.J., and J.B., then ages 11, nine, and one, respectively, were taken into protective custody based on physical injuries suffered by J.B. R.B., the mother of all the children (mother) had brought J.B. to the emergency room due to bruising on his head that 'just appeared yesterday.' It was discovered that J.B. had two fractured tibias; numerous brown bruises, which were the size of fingers, on the right side of his head; other bruises on his head, back, and scrotum; subconjunctival hemorrhages in both eyes; and elevated liver enzymes that could indicate trauma to his abdomen. A child abuse expert at the hospital advised that the fractures were nonaccidental and had been caused by 'significant force.' Mother could not explain any of J.B.'s injuries. A juvenile dependency petition was filed, alleging the children came within the juvenile court's jurisdiction pursuant to section 300, subdivisions (a), (b), and (e). [¶] . . . [¶]
"A.B. was born during the pendency of the dependency proceedings. A.B.'s parents are mother and J.K. (J.K. is also J.B.'s father.) A.B. was immediately taken into protective custody, and a juvenile dependency petition was filed, alleging that he came within the juvenile court's jurisdiction pursuant to section 300, subdivisions (a), (b), and (j).
"After a contested evidentiary hearing, held on multiple days over two months, the juvenile court found that it had jurisdiction over E.J., K.J., and J.B. under section 300, subdivisions (a) and (b), and over A.B. under section 300, subdivisions (a), (b), and (j). The court dismissed the section 300, subdivision (e) count.
"The disposition hearing took place on multiple days between February and September 2016. At the end of the hearing, the juvenile court declared all four children to be dependents of the juvenile court, removed them from the custody and care of mother, and found by clear and convincing evidence 'that there would be a substantial danger to the physical health, safety, protection, physical or emotional well-being of each of the minors if the minors were returned to mother; and that [the] court would find, in addition, that there are no reasonable means by which the minors' physical health can be protected without the removal of the minors from mother's home; and that there are no reasonable means by which they can be maintained in the home with the provision of services.'
"The court denied reunification services to mother, pursuant to section 361.5, subdivision (b)(6). The court vested custody of E.J. and K.J. with their father, C.J., pursuant to section 361.2, subdivision (a), retained jurisdiction, and adopted the recommended family maintenance plan. The court vested custody of J.B. and A.B. with nonrelative caregivers, the de facto parents. The court also ordered reunification services for J.K. as to J.B. and A.B. Mother and J.K. filed separate notices of appeal." (In re E.J. I, supra, G054076.)
Mother appealed from the disposition orders, and this court affirmed, concluding that, in light of the serious injury suffered by J.B., the juvenile court had correctly denied reunification services to mother. (In re E.J. I, supra, G054076.)
Mother filed a section 388 petition asking the juvenile court to vacate its jurisdiction and disposition orders as to all four children. Mother filed another section 388 petition asking the court to vacate the disposition orders as to all four children: "The mother is requesting the four children be returned to her care and custody or in the alternative, the mother is requesting family reunification services for all four children." Mother contended the disposition orders should be changed because she "has completed a 52 week child abuser program, individual counseling, parenting classes, a 730 evaluation and a 733 evaluation."
The juvenile court denied both section 388 petitions without a hearing, finding mother had failed to make a prima facie showing of changed circumstances. We affirmed. (In re E.J. II (Aug. 18, 2017, G054597) [nonpub. opn.].) As to mother's first section 388 petition, we concluded that, to the extent mother had established changed circumstances due to the lack of safety in the father's home where they were placed, the relief she requested would not have been in the children's best interests. (In re E.J. II, supra, G054597.) As to mother's second section 388 petition, we concluded that mother had failed to make a prima facie showing of changed circumstances. "[T]he evidence mother offered to support her claim of changed circumstances was evidence of her actions before the disposition hearing and before reunification services were terminated. Furthermore, this evidence was before the juvenile court during the jurisdiction and disposition hearings, and therefore was taken into consideration by the court in its orders." (In re E.J. II, supra, G054597.)
Mother's petition for review of our opinion in In re E.J. II was denied by the California Supreme Court. (In re E.J. (S244362, Oct. 25, 2017), order denying pet. for review.)
2. Mother's Current Section 388 Petitions.
In August 2017, mother filed new section 388 petitions requesting family reunification services and increased visitation with E.J. and K.J. Mother alleged E.J. and K.J. were extremely bonded to her and continued to express a desire to live with her. Mother also alleged she had made substantial progress in her programs, despite the fact she had not been provided services. In addition to the materials attached to her previous section 388 petitions, the August 2017 petitions included a letter from her counselor stating that mother demonstrated in her counseling sessions "an understanding of the impact of all forms of abuse and the adverse impact on the social, mental, and physical development of her children, issues of child safety, care, and protection." The counselor believed mother felt guilty because her children were still in foster care. Mother had also completed another parenting program in August 2017.
3. August Status Review Report.
In an August status review report, SSA recommended terminating father's reunification services and setting a section 366.26 hearing for E.J. and K.J. Mother continued to visit with E.J. and K.J. for seven hours every week. Mother was appropriate at the visits, which were monitored; mother, E.J. and K.J. shared "mutual affection" at the visits.
Father has not filed a petition for a writ from the juvenile court's order; therefore, we need not discuss the facts regarding his lack of performance of his case plan.
The children's therapist reported that "he has no concerns in regard to permanency with the current caregivers." The therapist was "surprised by the amount of visitation that still occurs between the children and the mother." The amount of visitation between mother and the children was negatively affecting the children's ability to bond with the caretakers. The current placement was positive and provided the children with consistency and stability. Both E.J. and K.J. wanted to remain in the same home as their younger siblings J.B. and A.B. (The four children are all currently placed together.) E.J. and K.J. would be fine moving to another home so long as they continued to have contact with their younger siblings, J.B. and A.B. The social worker observed mutual affection between the children and the foster parents, and also with J.B. and A.B.
In July 2017, mother gave birth to another child, who was immediately taken into protective custody. E.J. and K.J. do not have a relationship with this child.
4. Status Review Hearing and Hearing on Section 388 Petitions.
At the status review hearing, mother's counsel made a record as to how mother persevered through many services when the original 730 evaluator opined mother would not be able to complete anything. Mother completed a new parenting course, continued to meet with Dr. Glazer Burkhardt for individual therapy, and was in counseling with Dr. Peter Hilliard. Mother's counsel argued this case presented a "confession dilemma" because mother was being denied services due to her failure to admit she inflicted J.B.'s injuries; if she made such an admission, however, she would be subject to criminal prosecution.
County counsel confirmed that SSA was "not asking there be a confession [by mother]," but argued that mother had failed to show she had dealt with the court's sustained petition or that she had taken any responsibility for what had happened to J.B. Counsel for SSA argued that if mother could not acknowledge she or someone close to her had inflicted J.B.'s injuries, there could not be a change of circumstances to support a section 388 petition. Counsel for E.J. and K.J. requested denial of the section 388 petitions.
The juvenile court found it had sustained the allegations of the original dependency petition, and that the vast majority of the information in the section 388 petitions had already been litigated in previous section 388 petitions. The court further found the issue before it was whether mother had digested the court's findings and rulings, not whether she made a full confession. The court concluded mother failed to meaningfully engage in addressing the court's earlier findings. The court found there was no prima facie showing of changed circumstances, and no sufficient evidence that the relief requested by mother was in the children's best interests. Therefore, the court denied mother's section 388 petitions without a hearing.
The court concluded return of E.J. and K.J. to mother or father would create a substantial risk of detriment to the safety, protection, and well-being of the children. The court terminated reunification services for father and set a section 366.26 hearing for January 2018.
Mother filed a timely notice of intent to file a writ petition, pursuant to California Rules of Court, rule 8.450.
DISCUSSION
Section 388 allows a parent to petition the juvenile court for a hearing to change, modify or set aside a previous order if the petitioner can establish (1) changed circumstances and (2) that the proposed order would be in the best interests of the child. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 423.) In order to obtain an evidentiary hearing on the petition, the petitioner must make a prima facie showing of both prongs of the test. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) We apply the abuse of discretion standard in our review of the juvenile court's decision to deny the section 388 petitions without a hearing. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)
In In re E.J. II, supra, G054597, we affirmed the summary denial of previous section 388 petitions based on the juvenile court's finding that mother had not made a prima facie showing of changed circumstances. In the August 2017 section 388 petitions, mother presented essentially the same justification for her request, but added her participation in additional individual therapy sessions, weekly counseling, and the completion of a six-session parenting program.
A letter from mother's counselor stated, in relevant part: "She reported issues of insomnia, headaches, crying spells, social withdrawal, restlessness, poor concentration, and guilt.
The letter includes the following footnote here: "Note: Guilt feelings pertain to her children being in placement." --------
" . . . [S]he shared court documents and talked about incidents that lead to the placement of her children. During counseling sessions, the client demonstrated an understanding of the impact of all forms of abuse and the adverse impact on the social, mental, and physical development of her children. Issues of child safety, care, and protection were addressed.
"At present, it is my opinion that [mother]'s symptoms are related to the stress and adjustment issues related to this case; the removal of children, litigation, and fear of the children being adopted are her primary stressors. She presented no significant mental or mood disorders. Her past issues have been related to poor decision making and choices.
"[Mother] is currently stable and should benefit from family counseling with her children."
The juvenile court found mother's participation in counseling did not constitute changed circumstances. "There's nothing of substance in this which would address the core issues that were the basis of the court's finding that no reunification services would be provided. There's no indication that she has addressed the substantive issues again or even inferentially in counseling. The poor choices is a vague generalized reference that does not seem to relate to intentional acts, may very well refer to issues of—prior issues of domestic violence or abuse, choice of partners, but there's nothing going to the core issues of abuse."
Regarding the parenting program mother had recently completed, the juvenile court found: "There's no indication as to, again, whether this addressed the core issues that led to the sustaining of the allegations and the denial of reunification services." The court noted that "the opinions and the evidentiary basis of the court's ruling regarding no reunification services . . . were significantly based on the 730 evaluator's evidence, and the dimension and extent of therapeutic involvement that was stated as requisite for Mother to meaningfully address the issues. There's no indication that any of those have been addressed."
Ultimately, after allowing counsel for all parties to argue, the juvenile court found: "There's specific facts which the court found to be true in sustaining the allegations of the petition as to each child. I would agree the children are indeed differently situated. The court made specific findings as to each child with regards to removal and specific findings as to each child with regards to ordering there be no reunification services provided or offered. [¶] The court would note . . . the wealth of material contained in the 388 is information that predates a good deal of this case that was available previously. The court would also note that with reference to the counseling . . . it addresses mother's issues in digesting the court's findings and rulings. [¶] What it does not purport to address is the underl[y]ing issues that led to the sustaining of the allegations of the petition, the removal and the denial of reunification services. There's testimony before the court in terms of the processes that would be requisite for mother to engage in. The court would note those did not entail a quote/unquote 'confession.' [¶] But there's no indication that that process has been meaningfully engaged. The court would find . . . that there's not been a prima facie showing as to a change of circumstances."
The juvenile court correctly found mother had failed to make a prima facie showing of changed circumstances. Therefore, the court did not err in summarily denying the section 388 petitions.
Mother argues in her writ petition that she was precluded from establishing changed circumstances because of the "confession dilemma"—that the court's requirement that mother address the findings leading to the dependency proceeding would have required her to confess to inflicting the injuries on J.B.
The issue of the "confession dilemma" was recently addressed by the court in In re Madison S. (2017) 15 Cal.App.5th 308. In that case, the minor was made a dependent of the juvenile court pursuant to section 300, subdivision (e), and the juvenile court therefore denied reunification services. (In re Madison S., supra, 15 Cal.App.5th at p. 325.) The father argued the denial of reunification services was based "on the fact that neither parent would admit to causing Andrew's injuries, a so-called '"confession dilemma."'" (Ibid., citing Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1752-1753.)
The appellate court rejected the father's argument: "This leaves father's argument, based on Blanca P., that it was improper to condition his reunification services on either he or mother accepting responsibility for Andrew's injuries. In Blanca P., the appellate court was faced with a situation where significant evidence indicated that the father had been falsely accused of sexual molestation; the juvenile court had failed to consider seriously the allegation in finding jurisdiction on a subsequent petition; and the father's continued denials negatively impacted his ability to reunify. [Citation.] Under such circumstances, the Blanca P. court stressed the 'critical importance' of jurisdictional hearings under the juvenile court law: 'The hearing on a contested petition alleging child sexual abuse is thus, to repeat, extraordinarily important. It is not the sort of thing to be rushed, or taken routinely. Allegations of child molestation are serious; they merit more than a rubber stamp.' [Citation.] Since the sexual abuse allegation had not been properly considered by the juvenile court, the Blanca P. court remanded the matter so that the issue could be 'fully explored and resolved.' [Citation.] Here, in obvious contrast, the issue of father's culpability was extensively and thoughtfully explored by the juvenile court, and the court expressly found that Andrew was the victim of nonaccidental injury at the hands of father. It is possible that services for father might have been appropriate without an unequivocal admission of guilt on his part, if, for example, mother was willing to take affirmative steps to keep the child safe and/or both parents agreed that Andrew was a victim of abuse and should be treated as such. Here, however, neither parent was even willing to acknowledge that nonaccidental injury occurred, conduct amounting to 'a willful denial of the injuries themselves.' [Citation.] On these facts, it is difficult to imagine how any services would have been likely to prevent reabuse." (In re Madison S., supra, 15 Cal.App.5th at p. 327.)
The present case is on all fours with In re Madison S. The juvenile court exercised jurisdiction over E.J., K.J., and J.B. pursuant to, inter alia, section 300, subdivision (e), as a result of the serious nonaccidental injury suffered by J.B., and that mother was the only person who could have possibly caused those injuries. Mother's counsel argued that the injuries could have been inflicted by mother's boyfriend, Christopher B., or Christopher's daughter. Mother has continued to reside with Christopher and his daughter, and indeed recently had another child with Christopher. If Christopher or his daughter had caused J.B.'s injuries, mother has shown an unwillingness to take the necessary steps to protect her children from further harm.
The allegations of abuse against mother were not addressed in a perfunctory or hasty fashion. To the contrary, the contested jurisdiction and disposition hearings were lengthy and thorough. Eighteen months passed between detention and disposition.
Mother did not need to make an unequivocal admission of guilt in order to have obtained services. However, she has never acknowledged J.B. is the victim of abuse, and has continued to willfully deny the nonaccidental nature of the injuries or her role in their occurrence. As in In re Madison S., supra, at page 327, "it is difficult to imagine how any services would have been likely to prevent reabuse."
Further, there is no evidence reunification services would be in E.J. or K.J.'s best interests. To the contrary, the children's therapist believed their contact with mother was detrimental to them.
DISPOSITION
The petition for a writ of mandate or prohibition is denied.
FYBEL, J. WE CONCUR: MOORE, ACTING P. J. THOMPSON, J.