Opinion
E052479 Super.Ct.No. RIJ117948
08-08-2011
In re R.P., et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. L.C., Defendant and Appellant.
Shobita Misra, under appointment by the Court of Appeal, for Defendant and Appellant. Pamela J. Walls, County Counsel, Anna M. Deckert and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Shobita Misra, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, Anna M. Deckert and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
Defendant and appellant L.C. (Mother) appeals from the juvenile court's order denying her Welfare and Institutions Code section 388 petitions seeking reinstatement of services or return of the children to her custody. On appeal, she makes no direct challenge to the findings and orders terminating her parental rights as to four of her children. Rather, she argues only that the juvenile court abused its discretion in denying her section 388 petitions. For the reasons explained below, we reject Mother's contention and affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
Mother has 10 children, seven of whom are subjects to this appeal: Child 1 (age 9), Child 2 (age 8), Child 3 (age 5), Child 4 (age 4), Child 5 (age 4), Child 6 (age 3), and Child 7 (age) The father of the two older children is R.P., and the father of the five younger children is D.T. (Father). Neither father is a party to this appeal.
Mother's three other children, who are not subjects of this appeal, have also been removed from her custody and presently reside with their biological father.
The family came to the attention of the Los Angeles County Department of Children and Family Services (DCFS) in July 2007 when an immediate response referral was received alleging caretaker absence/incapacity of Child 5 and her twin, K.T., then one month old. Following an investigation, the allegations were determined to be unfounded. However, K.T. died on August 19, 2007, as a result of sudden infant death syndrome (SIDS), and an allegation of substantial risk was sustained.
Mother subsequently suffered extreme grief, resulting in her inability to care for the children. She was offered voluntary family reunification services. The children were taken into custody and placed in different homes: Child 1 and Child 2 were placed in a foster home; Child 3 and Child 4 were placed with their paternal aunt, Aunt 1, and Child 5 was placed with a different paternal aunt, Aunt 2.
Mother minimally participated in her services. She also appeared to be uncooperative with the social worker and DCFS and had an antagonistic relationship with Father's mother and Father's sisters (Aunts 1 and 2). Mother and Father led a transient lifestyle, were unemployed, and relied on friends and relatives. Mother also had a criminal history involving battery, aggravated assault, and possession of a controlled substance.
In October 2007, following a violent altercation between Mother and Father, DCFS filed a petition on behalf of the five older children pursuant to Welfare and Institutions Code section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), and (g) (no provision for support). The petition was subsequently amended. The children were formally detained on October 26, 2007, and maintained in their respective placements. Mother did not regularly visit Child 1 and Child 2; however, she visited the other three children two to three times a week.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
The contested jurisdictional/dispositional hearing was held on January 29, 2008. The court found the allegations in the petition true as further amended and declared the children dependents of the court. The parents were provided with reunification services. Mother was ordered to participate in random drug testing, parenting classes, grief counseling, and individual and conjoint counseling with the children. Mother's counseling was to address issues involved in the dependency proceeding and anger management. Mother was also provided with visitation.
By April 2008, Mother was making some progress in her case plan. She had completed a parenting program but had failed to begin her counseling component. In addition, she had only partially complied with random drug testing.
Child 1 displayed aggressive behavioral problems in his foster home and was referred to a psychologist. He was angry that his stepfather had physically abused him and his sister (Child 2) and stated that "one day he would like to 'kill [Father] with a knife for what he has done.'" He was diagnosed with conduct disorder, and he feared he might not reunite with his mother. Child 2 was also referred to a psychologist and was diagnosed with adjustment disorder.
On March 26, 2008, Child 1 and Child 2 were moved into a new foster home located in the Palmdale area, a "great distance" from Mother's Los Angeles area residence. On the advice of Child 1's psychologist, Child 1 and Child 2 were placed in a foster home where they were the only children so the foster parent could closely supervise them. It was reported that they had a "tendency to sexually act out with one another." They began participating in weekly counseling sessions in June 2008.
Mother's visits with Child 1 and Child 2 were sporadic both before and after their relocation. She had also declined DCFS's offer to transport her to and from the children's placement in Palmdale because she did not want to go to an unfamiliar area. She still had not completed counseling and was only in partial compliance with her case plan.
By July 2008, Child 3, Child 4, and Child 5 were placed in the home of the paternal grandmother and Aunt 2 in Perris. Mother had regularly visited these three children. Although she had appeared to be "very bonded" to Child 3 and Child 4, she did not appear to have a bond with Child 5. She was not attentive to Child 5's needs and did not respond to the child's crying.
In June 2008, Mother gave birth to another child, Child 6. On June 25, 2008, Child 6 was removed from parental custody and placed in a foster home, and on June 30, 2008, DCFS filed a section 300 petition on his behalf. The child was formally detained but released to her parents' custody. Family maintenance services were provided to the parents in regard to this child.
By October 2008, Mother was in partial compliance with her case plan. She had completed two parenting education programs and had accomplished the goals of her counseling. She still needed to submit to three random drug tests. Additionally, she had not visited Child 1 and Child 2 since August 23, 2008, despite being given monthly bus passes and tokens to facilitate the visits. She also did not have any bond with Child 5 and had refused to participate in visits with her. Furthermore, although Mother had maintained regular visits with Child 3 and Child 4, she had failed to make any efforts to facilitate these visits; rather, their caregiver, the paternal grandmother, transported the children from Perris to Los Angeles each weekend. The paternal grandmother reported that she was frustrated in dealing with the parents: They had asked for money from her, and they did not have sufficient food for Child 3 and Child 4 during their weekend visits, despite having received sufficient government benefits to meet their financial obligations. The paternal grandmother also reported that the parents were being evicted from their apartment.
By November 2008, the parents were living in a motel with Child 6, after having been evicted from their apartment for failing to pay rent. They continued to be unemployed. Mother had completed her drug testing and had participated in visits with Child 1 and Child 2. The visits had gone well, and the children were sad to leave Mother and Father at the end of the visits. Due to Mother's progress in her case plan, Child 6 was allowed to remain in her care.
At the December 22, 2008, 12-month review hearing in regard to the five older children, the court noted that the parents were in compliance with their case plan and ordered Child 1 and Child 2 returned to the parents' home on family maintenance status and an agreed-upon safety plan. In regard to Child 3, Child 4, and Child 5, the parents were granted additional reunification services with overnight visits.
On March 23, 2009, the matter was transferred to Riverside County, since the parents had moved into appropriate housing in Perris with Child 1, Child 2, and Child 6, near where their other children resided with paternal relatives. The parents had continued to meet the children's basic needs and had enrolled the two oldest children in school. However, Mother still had no bond or attachment to Child 5.
On June 17, 2009, the Riverside County Department of Public Social Services (DPSS) filed a section 387 supplemental petition for a more restrictive placement on behalf of Child 1, Child 2, and Child 6. The petition alleged that the parents had continued to engage in acts of domestic violence in the children's presence, resulting in Mother stabbing Father in the arm with a knife on May 13, 2009. The petition also alleged that the parents had failed to abide by the agreed-upon safety plan. Mother denied the allegations, refused to participate in further services, and stated that she intended to return to Los Angeles. Mother and Father had previously engaged in acts of domestic violence where Mother had grabbed a knife and attempted to stab Father. Due to Mother's failure to sign a safety plan and poor cooperation with DPSS, the children were detained and placed in an interim foster home.
The parents had visited the children and interacted with them appropriately. However, while they displayed affection toward Child 6, they had only minimally interacted with Child 2 and Child 1. In addition, during a visit at a relative's home on July 18, 2009, Mother had discontinued the visit and left the residence early, because she was upset because one of the guests had previously had a romantic relationship with Father. Mother also ended another visit early on July 19, 2009. Moreover, Mother had cancelled a scheduled visit for September 9, 2009, and had complained the two-hour visits were too long.
The social worker noted that, although the parents had received services in Los Angeles County for the previous 18 months, they had failed to benefit from those services and required additional services to address the anger management and domestic violence issues. The social worker also believed that Mother required a psychological evaluation. The parents, however, believed that they had completed the necessary services in Los Angeles County and that they did not need additional services. The social worker recommended that services as to the other children, with the exception of Child 6, be terminated.
Mother gave birth to Child 7, and after his birth, in August 2009, DPSS filed a section 300 petition on his behalf. Since Father had not participated in reunification services and the parents had continued to reside together, DPSS alleged that the baby was at risk of harm. The child was formally detained on August 13, 2009, and placed with his paternal grandmother. Mother was provided with liberal visitation so that she could nurse the baby. However, she ceased nursing the baby because she did not want to go back and forth between her home and the paternal grandmother's home to do so. Mother also requested that DPSS supervise the visits, rather than the paternal grandmother. DPSS agreed to supervise the visits, but Mother then refused to participate if the children were transported to the visits by the paternal grandmother. The allegations in the petition were found true on September 15, 2009, and the baby was declared a dependent of the court. The parents were provided with reunification services and ordered to participate.
DPSS was concerned that Mother suffered from depression and was suicidal, as she had attempted suicide on August 21, 2009. Mother reported that she was living separately from Father and that he had attempted to break into her home on August 23, 2009. She also reported that she did not have any income and that her father was paying her rent. The paternal grandmother, however, reported that the parents continued to reside together. Mother believed that the paternal relatives were making false allegations about her.
On September 15, 2009, the juvenile court found the allegations in the section 387 petition true as amended, terminated reunification services as to the five older children, and set a selection and implementation hearing. The parents were provided with additional reunification services as to Child 6's dependency.
Meanwhile, the children were developing well in their respective foster homes. Child 1 had not displayed "major conduct problems" since being placed in foster care and was adjusting well to his current placement. He had been observed to have a positive bond with his foster parents, his siblings, and other children in the home. Child 2 was also adjusting well in her foster home. She was placed in the same home as her brother Child 1. Their maternal grandfather was interested in providing a permanent home for them. Child 3 and Child 4 remained placed with the paternal grandmother and had strong bonds with her. The paternal grandmother was interested in adopting them. Child 5 remained placed with the paternal aunt and had a strong bond with her.
Child 6 had remained placed together in the same foster home as Child 1 and Child 2 and had a strong bond with Child 2 and an appropriate bond with the foster mother. Child 7 remained placed with Child 3 and Child 4 with their paternal grandmother. Child 7 had a strong bond with his paternal grandmother.
Mother was participating in her case plan and had completed individual therapy for depression, an anger management program, and a parenting education program. However, she was homeless, unemployed, and living a transient lifestyle. She was offered referrals to shelters but refused them. It was also believed that she had continued a relationship with Father, who had failed to participate in his case plan since the inception of the dependency proceedings. In February 2010, Mother and Father had arrived together in the same vehicle at the paternal grandmother's home and had an altercation resulting in the police being contacted. The social worker concluded that Mother had not benefitted from services.
Initially, the parents had maintained regular contact with Child 6 and Child 7. The visits, however, diminished over time, became sporadic, and eventually ceased. In addition, during the visits, Mother's interaction with Child 7, as well as the other children, was minimal. Moreover, Child 1 reported that the parents argued during a visit, resulting in Mother leaving.
On April 7, 2010, the juvenile court terminated Mother's reunification services as to Child 6 and Child 7 and set a selection and implementation hearing pursuant to section 366.26.
On May 12, 2010, Mother filed a request to change court order pursuant to section 388, along with supporting documents, requesting that services terminated in September 2009 be reinstated and the section 366.26 hearing be vacated. Mother filed two more section 388 petitions on August 3, 2010, requesting that the court return Child 6 and Child 7 to her care or reinstate the services that had been terminated in April 2010.
By June 2010, Mother reported that she was living in Los Angeles and working in her father's store from Monday to Friday. However, she had not visited the children since December 25, 2009, and reported that she could only visit on weekends. Mother had requested a weekend visit with the children on April 19, 2010, but did not want the visits to be supervised by the paternal grandmother. When the social worker had attempted to contact Mother following her request, Mother could not be reached by telephone. Mother had asked for visits with the children on July 15, 2010, but when the social worker informed Mother that DPSS would supervise the visits and provided her with available dates and times, Mother claimed that she worked and would not be able to visit on those dates. The social worker advised Mother to ask her father for time off during those days so that she could visit the children. Mother had failed to contact the social worker thereafter to arrange visits. She had also failed to take advantage of DPSS's offers to provide train tickets to travel from Los Angeles to Riverside to visit the children.
Moreover, Mother and Father had continued to be in a relationship, engage in acts of domestic violence, and live a transient lifestyle. Six days after the May 12, 2010, section 388 petition was filed, Father was arrested and charged with battery on a spouse and resisting arrest following a domestic dispute with Mother. Mother was arrested in June 2010 for punching her pregnant roommate and was charged with battery with injury. Mother had continued to blame the paternal relatives for the removal her children and had failed to take responsibility for her actions. The social worker believed that Mother "clearly" had not benefitted from the services provided to her, and Father had refused to participate in any services at all.
Meanwhile, the children were doing well in their respective foster homes. Child 1 and Child 2 were moved to a different foster home on May 21, 2010, and had adjusted well. They had developed a bond with the foster mother and reported that they were happy. The maternal grandfather had maintained an interest in providing care to Child 1 and Child 2, and DPSS was in the process of completing an assessment of him. On October 19, 2010, after DPSS determined that it was in their best interest, Child 1 and Child 2 were placed with their maternal grandfather, who had indicated an interest in obtaining legal guardianship of them in Los Angeles.
Child 3 and Child 4 had continued to reside with the paternal grandmother and had a "very strong attachment to her." Child 6 and Child 7 had also been placed with their paternal grandmother. They were developing well and had a strong attachment to her as well. She desired to adopt these four children and provide them with a permanent home. Child 5 had continued to be cared for by her paternal aunt, whom she called "mom." The paternal aunt had continued to meet Child 5's needs and had initially indicated a desire to adopt her, but she later changed her interest to obtaining legal guardianship of the child. The social worker recommended terminating parental rights for the four children placed with the paternal grandmother and guardianship with their respective relative caregivers for the other three children.
A hearing on Mother's section 388 petitions was held on November 22, 2010. Mother's stipulated testimony indicated that she was living with a maternal aunt and was not required to pay any rent; that she had had to leave her father's employ so that Child 1 and Child 2 could be placed in his care; and that her father was financially responsible for her care. Mother's stipulated testimony also noted that she had consistently visited the children and that the children loved her and recognized her as their mother.
Following argument from counsel, the juvenile court denied Mother's section 388 petitions, finding no changed circumstances and that the requested changes would be contrary to the children's best interests. The juvenile court then proceeded to the section 366.26 hearing. As to Child 3, Child 4, Child 6, and Child 7, the court found them to be adoptable and ordered parental rights terminated. As to Child 1, Child 2, and Child 5, the court found legal guardianships to be appropriate permanent plans.
II
DISCUSSION
Mother contends the juvenile court abused its discretion in denying her section 388 petitions. In her view, the evidence established that she had made significant changes in her life, completed her case plan, and had "eliminated domestic violence" and that it was in the children's best interests for them to have further opportunities to strengthen their existing bond and maintain a relationship with her. We disagree.
"A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new or changed circumstances exist, and (2) the proposed change would promote the best interest of the child. [Citation.] The parent bears the burden to show both '"a legitimate change of circumstances"' and that undoing the prior order would be in the best interest of the child. [Citation.] The petition is addressed to the sound discretion of the juvenile court, and its decision will not be overturned on appeal in the absence of a clear abuse of discretion. [Citation.]" (In re S.J. (2008) 167 Cal.App.4th 953, 959-960 [Fourth Dist., Div. Two].) "'"The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court."' [Citation.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319 (Stephanie M.), original quotation marks corrected.)
By the time of the section 388 hearing, the only changed circumstances that the court could reasonably find were that Mother and Father were presumably not residing together. Contrary to Mother's interpretation of the record, since the time services had been terminated, Mother had continued to engage in acts of domestic violence with Father, had not benefitted from anger management education, had continued to live a transient lifestyle, and had relied on her father for support. In fact, the record discloses that since her services were terminated in April 2010, Mother had done nothing. The evidence, as set out above, demonstrates that there was little that had changed in Mother's life since her services were terminated. Based on Mother's prior history, it is pure speculation that Mother would remain living in a stable environment, cease contact with Father, or be financially self-sufficient.
Moreover, Mother did not establish that resumption of reunification services would be in the children's best interests. "Once services have been terminated, the juvenile court's focus shifts from family reunification to the child's permanent placement and well-being, and the burden accordingly shifts to the parent to show that a termination of parental rights is not in the child's best interests. [Citations.]" (In re Nolan W. (2009) 45 Cal.4th 1217, 1235.) We reject Mother's asserted claims of changed circumstances warranting return of the children to her care. There was no evidence to show that the children were bonded with Mother. All of the children, with the exception of Child 1 and Child 2, and been removed from Mother's care at very young ages. In addition, although Child 1 and Child 2 had indicated a desire to go home to Mother, there is no evidence that the children showed any signs of distress. On the other hand, there was substantial evidence demonstrating that the younger children were bonded to and thriving with their respective caregivers. In fact, Child 5, Child 3, and Child 4 had been living separately from Mother with their respective relative caregivers since 2007, and Child 7 and Child 6 had been removed from Mother's care at infancy and at about age one, respectively. Moreover, Mother had failed to maintain regular contact with the children.
Mother focuses on factors advanced by the appellate court in In re Kimberly F. (1997) 56 Cal.App.4th 519 (Kimberly F.) to evaluate the children's best interests. In that case, the Court of Appeal rejected a trial court's use of a simple best interest test of comparing the household and upbringing offered by the natural parent or parents with that of the caretakers in analyzing a section 388 petition. (Id. at pp. 526-530.) The appellate court then determined a list of factors, not meant to be exhaustive, that should be considered: the seriousness of the problem leading to dependency and the reason that problem was not overcome by the time of the final review; the strength of relative bonds between the dependent children to both parent and caretakers and the length of time a child has been in the dependency system in relationship to the parental bond; and the degree to which the problem may be easily removed or ameliorated and the degree to which it actually has been. (Id. at pp. 530-532.)
These factors, however, appear to focus primarily on the parent, not on the child's need for permanency and stability. (Compare Stephanie M., supra, 7 Cal.4th at p. 317.) In any event, Mother cannot prevail under any of the Kimberly F. factors. First, the problems that led to dependency in this case were serious: neglect, caretaker incapacity, homelessness, and domestic violence. This is not a case of simply a "dirty house." (Kimberly F., supra, 56 Cal.App.4th at pp. 522, 532 [a "rare" case in which denial of a section 388 petition merited reversal].) Second, the bond between Mother and the children was not strong. Although the two older children, Child 1 and Child 2, missed their mother and desired to return home, Mother had not visited these children since Christmas 2009 and did not play a significant parental role in their lives. She still had no means to financially support them, besides relying on her father; it was unknown how long she would be residing rent-free in the maternal aunt's home; and she still continued to engage in acts of violence. The relationship between Mother and the children was not typical of a successful parent-child relationship. Third, the evidence showed that the bond between the younger children and their respective caregivers was much stronger than that between the children and Mother. Finally, Mother had not shown that she had ameliorated the problems that led to the dependency and the removal of the children. The juvenile court could reasonably conclude that any progress Mother had made was insufficient to show she could provide the children with the stability and permanency they had with their respective caregivers.
Parent and child share a fundamental interest in reuniting up to the point at which reunification efforts cease. (In re R.H. (2009) 170 Cal. App.4th 678, 697.) By the time of a section 366.26 hearing to select and implement a child's permanent plan, however, the interests of the parent and the child have diverged. (Cynthia D. v. Superior Court (1993) 5 Cal. 4th 242, 254.) Indeed, children have a fundamental independent interest in belonging to a family unit. They have compelling rights to be protected from abuse and neglect and to have a stable and permanent placement, one that allows the caretaker to make a full emotional commitment to the child. (In re Marilyn H. (1993) 5 Cal.4th 295, 306 (Marilyn H.).) Adoption, as well as legal guardianship, gives a child the best chance at a full emotional commitment from a responsible caretaker. (In re Celine R. (2003) 31 Cal.4th 45, 53.)
Therefore, after reunification efforts have terminated, the court's focus shifts from family reunification to promoting the child's needs for permanency and stability. (Marilyn H., supra, 5 Cal.4th at p. 309.) In fact, there is a rebuttable presumption that continued out-of-home placement is in the best interests of a child. (Id. at p. 310.) A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it: the best interests of the child. (Stephanie M., supra, 7 Cal.4th at p. 317.)
Here, Mother made no attempt to rebut the presumption that continued out-of-home placement was in the best interests of the children. (Marilyn H., supra, 5 Cal.4th at p. 302.) The prospective adoptive mother and the prospective legal guardians were committed to providing the children with stability, love, and support. The children's stability and permanency were of paramount concern at this stage of the proceedings. Mother has not shown that it was in the children's best interest to provide Mother with additional services, or return them to her care, in the hope that she could turn her life around for good and provide the children with the stability that they need.
Unfortunately, Mother's attempts to reunify with her children were too little and too late. In sum, we conclude that the juvenile court did not abuse its discretion in denying Mother's section 388 petitions. The juvenile court could reasonably conclude that the children's best interests lay in the permanence they would gain from adoption or legal guardianship, rather than in delaying that permanence in the sentimental hope that the children could be reunited and bond with Mother.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
RAMIREZ
P.J.
KING
J.