Opinion
E070281
09-14-2018
In re K.M., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. K.M., Defendant and Appellant.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Prabhath Shettigar, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIJ1100622) OPINION APPEAL from the Superior Court of Riverside County. Walter H. Kubelun, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
K.M. (father) appeals from an order denying a petition for modification of existing orders in juvenile dependency proceedings concerning his son, Ke. We will affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
This case has a very long history and has entailed multiple appeals. For purposes of this appeal, the following are the pertinent facts.
Because the current appeal pertains only to Ke., we omit much of the history concerning his siblings. A guardianship was established for his older brother in 2014, and the juvenile court terminated dependency jurisdiction as to him. As to his sister, services were denied, parental rights were terminated, and she was adopted in 2014. (See generally, In re K.M. (Nov. 26, 2014, E060804) [nonpub. opn.], In re K.M. (Oct. 22, 2014, E059994) [nonpub. opn.], and In re K.M. (Apr. 28, 2014, E058604) [nonpub. opn.].)
On our own motion, we take judicial notice of the records in the following prior appeals in this case: case Nos. E056706, E057540, E058604, E059994, E060804, E063023, E066019, E066505, E067140, E067302 and E067704. (Evid. Code, § 452, subd. (d).) The factual and procedural history is derived from the unpublished opinion in In re K.M. (Apr. 6, 2017, E066505).
The Los Angeles County Department of Children and Family Services (DCFS) initiated this dependency in October 2009 after receiving a referral that Ke. and his brother were at risk for physical abuse by father. DCFS filed petitions pursuant to Welfare and Institutions Code section 300 with respect to both boys alleging father abused them by striking them, grabbing the six-year-old around the neck and threatening him by saying he would never see his family again if he told anyone about the abuse. As to their mother, the petition alleged that she failed to protect her children from father's abuse. The trial court placed the children with their mother. In September 2010, after father had completed reunification services, which included alcohol treatment, anger management, and parenting classes, the trial court allowed him to move back into the home with mother and the children. (See In re K.M., supra, E066505.)
All further statutory citations refer to the Welfare and Institutions Code unless another code is specified.
In March 2011, DCFS received another referral of physical abuse after Ke. reported that father had spanked him with a stick and, as a result, the child was in so much pain he could not sit down. The reporter stated that Ke.'s buttocks were severely bruised and marked. Based on the referral, DCFS filed a section 387 petition, superseded by an amended petition filed a month later, alleging both parents had physically abused the children by hitting them with belts, causing marks and bruises. The petition further alleged that father hit the children with a board, tied their hands and feet, and pinched them. This time, the court removed the children from the parents' custody and ordered reunification services and monitored visits. (See In re K.M., supra, E066505.)
Because the parents were living in Riverside County, the case was transferred to that county in May 2011. The Riverside County Department of Public Social Services (DPSS) placed Ke. with a foster family in Moreno Valley. Although the older boy had initially been placed with a foster family in Los Angeles, in June 2011 DPSS placed him in the same foster home as Ke. DPSS referred Ke. to the county department of mental health after he was suspended from school for five days, apparently because he had pushed a student and then banged on the classroom window. When he was sent to the principal's office, Ke. refused to go inside and flipped over a chair in the school office. (See In re K.M., supra, E066505.)
A psychologist diagnosed Ke. with ADHD combined with oppositional disorder and prescribed psychotropic drugs. By October 2011, DPSS recommended that the boys be returned to the care of their parents with family maintenance services. At the pertinent review hearing, the trial court followed that recommendation. (See In re K.M., supra, E066505.)
On March 6, 2012, DPSS received an immediate response referral through the child abuse hotline after Ke. ran away from the family's apartment to the leasing office of their apartment complex. Ke. reported that he was afraid to go home because he got "woopings" from both parents, but mostly father. He had a number of small bruises on the inside of his left leg that he said were caused by his mother hitting him with a belt. Ke. also had a large bruise on his buttocks and said father hit him with a wooden stick or paddle. (See In re K.M., supra, E066505.)
DPSS filed a supplemental petition on March 8, 2012, later superseded by an amended petition, with respect to both boys. Among other things, DPSS alleged that both parents physically abused the children, causing injury to each of them. The petition further alleged that Ke. refused to go home to his parents. According to the social worker's detention hearing report, Ke. said his mother "whooped" him because he misbehaved at school. Mother admitted she "whooped" him with a belt. The social worker noted that the parents had both been advised many times not to use physical discipline on the children. The social worker also reported that the parents did not agree that Ke. had ADHD and did not believe in psychotropic medication. They apparently had taken Ke. off his medication and, as a result, Ke. engaged in very disruptive behavior at school. (See In re K.M., supra, E066505.)
Dr. Vivanco examined both children on March 8, 2012, at Riverside County Regional Medical Center. The doctor reported that both boys had suffered severe physical abuse. Both had scars on their necks the doctor believed had been caused by fingernails, which were consistent with strangulation. They both had other patterned scars on the neck, chest, back, arms, thighs, and legs. Those scars were consistent with having been inflicted by a belt. According to Dr. Vivanco, both boys had described severe and repetitive trauma. (See In re K.M., supra, E066505.)
At the detention hearing on March 9, 2012, the trial court ordered the children detained and removed them from the physical custody of both parents. (See In re K.M., supra, E066505.)
Dr. Klebel, a psychologist to whom the children had been referred, reported in a May 2012 progress report for Ke. that the child had drawn a picture of himself tied to a chair, and then lying face down on a bed, being beaten with a belt. Ke. drew many scars on his body. Dr. Klebel reported that both boys had said that father told them "what happens in the family stays in the family." Dr. Klebel was particularly bothered by the fact that Ke. apparently had been sexually abusing his older brother for many years, including during the times the children lived with their parents. Another doctor, Dr. Kozman, evaluated Ke. and diagnosed him with PTSD, ADHD, conduct disorder, and depression. The doctor prescribed Clonidine and Vyvanse, which his caregiver reported resulted in a big improvement in Ke.'s behavior. (See In re K.M., supra, E066505.)
On July 18, 2012, the juvenile court found the allegations of the amended section 387 petition to be true as to both boys. The court found that although the parents had been provided services for nearly three years, they had made only minimal progress toward alleviating the cause of the dependency and had not benefitted from the services. The court also found that the parents had exceeded the statutory time limit for reunification services. The court denied further services and set a section 366.26 hearing to establish a permanent plan for the boys. (See In re K.M., supra, E066505.)
As noted ante, the older boy was placed in a guardianship and the dependency was dismissed as to him. On March 12, 2013, the juvenile court established a legal guardianship for Ke. and ordered visits between Ke. and his parents to be "reasonable and as directed by the legal guardian." The court then terminated dependency jurisdiction as to Ke. (See In re K.M., supra, E066505.)
On March 3, 2016, DPSS received a referral alleging Ke.'s guardian had abused him emotionally and physically. It was alleged that the guardian had held him over the balcony of her home and threatened to kill him. It was also alleged that she had threatened to "put him out" if he agreed to visits with his parents. On March 4, 2016, DPSS received an immediate response referral alleging that Ke. had run away that morning. Law enforcement located him and took him back to the guardian's home. It was alleged that the guardian refused to take custody of Ke. and said that she wanted to rescind the guardianship. She said she was unable and unwilling to care for Ke. because of his extensive behavioral problems. Ke. was removed from the guardian's home that day, and a petition pursuant to section 300, subdivision (g), was filed on his behalf. The guardian later stated that she was not interested in receiving services to reunify with Ke. (See In re K.M., supra, E066505.)
Section 300, subdivision (g), provides for dependency jurisdiction if a child's custodian with whom he or she resides is unwilling or unable to provide care or support for the child.
Ke. was placed in foster care, but the first foster mother asked to have him removed because of Ke.'s violent and oppositional behavior. A second foster placement also failed because of Ke.'s behavior. He was ultimately placed in a group home. (See In re K.M., supra, E066505.)
On May 10, 2016, the parents' petition for modification of the visitation order was granted "as modified." The court ordered visitation with Ke. a minimum of once a month in a therapy setting, once Ke.'s therapist indicated Ke. was ready. The court also granted DPSS's request to dismiss the pending dependency petition based on section 300, subdivision (g). The court reinstated the petition based on section 300, subdivision (b). The court also terminated the guardianship and denied services to the parents. It found compelling reasons not to set a permanency planning hearing in that Ke. was not suitable for adoption at that time, and there was currently no one available to accept legal guardianship. (See In re K.M., supra, E066505.)
In a November 2017 status review report, the social worker reported that Ke. had lived in a group home for a little over a year. The continued structure within the home helped Ke. make improvements and adjustments to his emotional and mental stability. A significant amount of his aggressive and impulsive behaviors had decreased tremendously. Subsequently, in September 2017, he was placed in a foster home.
However, after several weeks, Ke.'s behavior deteriorated again, and he was removed from that foster home. Placements at several other foster homes also failed, for the same reasons, and he was eventually returned to a group home. It appeared that one problem was that Ke.'s parents had given him a cell phone, and he was talking to his parents frequently. His contact with his parents seemed to trigger his negative behavior.
On January 12, 2018, Ke. left the group home without permission. DPSS did not know where he had gone, and a protective custody warrant was issued. Ke.'s parents stated in their section 388 petition that he was staying with an unidentified friend he had met in a group home. At the hearing on the petition, father's attorney said that father did not know where his son was staying.
On February 20, 2018, the parents filed a section 388 petition seeking an order placing Ke. in a setting other than a group home. The petition stated that Ke. was very unhappy in the group home and was being mistreated, and that he wanted to live with his parents or another relative. The juvenile court set a hearing on the petition. At the hearing, after listening to argument, the court denied the petition, stating that the petition "cannot be ruled upon based upon the AWOL status of the minor." The court denied the petition without prejudice and stated that the parents would be allowed to "re-bring" the matter to the court's attention once Ke. had been located.
Father appealed from the order. Mother did not file a notice of appeal.
LEGAL ANALYSIS
DENIAL OF THE SECTION 388 PETITION
WAS NOT AN ABUSE OF DISCRETION
Under section 388, a parent may petition to change or set aside a prior order "upon grounds of change of circumstance or new evidence." (§ 388, subd. (a)(1).) The juvenile court shall order a hearing where "it appears that the best interests of the child . . . may be promoted" by the new order. (§ 388, subd. (d).) Thus, the parent must sufficiently allege both a change in circumstances or new evidence and the promotion of the child's best interests. (In re G.B. (2014) 227 Cal.App.4th 1147, 1157.) We review a juvenile court's decision to deny a section 388 petition for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) A trial court's discretionary decisions will not be disturbed on appeal unless an abuse of discretion is clearly established. (Ibid.)
Here, the parents' section 388 petition asked the court to change the existing order and place Ke. in a setting other than a group home. They requested that Ke. be returned to the parents' custody or placed with a relative. They also request the dependency case be closed. They further asked to have the case transferred to Los Angeles County because the relatives who were interested in placement lived in that county. They attached an unsigned statement describing Ke.'s unhappiness with the group home placement and his lack of trust in DPSS, as well as an unsigned letter from a cousin, C.P., expressing his desire to be the legal guardian of Ke. and his brother. C.P.'s mother had adopted Ke.'s sister.
At the hearing on the petition, father's attorney reported that father had said that Ke. was refusing to return to any group home or foster care and wanted to return to father's care. Father believed that the only way to bring Ke. in safely was to guarantee he would be placed with father or with relatives. County counsel informed the court that the social worker indicated Ke.'s grandmother was being assessed, but that ever since Ke. had been AWOL, the grandmother had stopped responding to the social worker's calls. As noted ante, the court denied the section 388 petition without prejudice, stating that until Ke. returned, it could not rule on the petition.
The court notes that the reporter's transcript shows an incorrect spelling of Ke.'s name. However, the minute order of the hearing shows the correct spelling.
Father contends that the juvenile court abused its discretion by denying the petition without an evidentiary hearing. Father has forfeited this contention, however. Based on its finding that the parents' petition had made a sufficient prima facie showing of both a change in circumstances and potential benefit to Ke., the court set the matter for a hearing, as it was required to do. (In re Lesly G. (2008) 162 Cal.App.4th 904, 912 [juvenile court must order hearing on a section 388 petition if the petition presents "'any evidence'" that a hearing would promote the best interests of the child].) Father was present at the hearing, represented by his attorney. The attorney argued father's position but did not ask to present evidence. Accordingly, father has forfeited any claim of error based on the juvenile court's failure to hold an evidentiary hearing. (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1080-1081.)
Father also contends that the court abused its discretion by failing to take any action solely because Ke.'s whereabouts were unknown. He contends that the court should have taken the petition as an opportunity "to explore potential alternatives" to a group home or to "a foster placement chosen by the department," as opposed to one chosen by Ke. or by father. DPSS correctly points out that exploration of potential alternatives is not what the parents sought in their petition. Rather, they sought to have Ke. returned to the parents' custody and to have the dependency dismissed or to have him placed with C.P. Even during the hearing, the parents did not ask the court to order an assessment of C.P. or to take any other action to explore potential placements in order to have something in place whenever Ke. was found. Accordingly, father has forfeited any claim of error based on that contention.
Even if the issue was not forfeited, however, we are not persuaded that it was an abuse of discretion for the court to choose to wait until Ke. returned to resume exploring potential placements for him. DPSS relies on In re Jonathan P. (2014) 226 Cal.App.4th 1240 in support of its contention that the court properly declined to act because of Ke.'s absence. In that case, the minor was AWOL from his placement. The court held that because the minor's condition and well-being could not be fully and properly assessed in his absence, it was not possible to evaluate whether it would be detrimental to place the minor with his nonoffending father without the minor's participation in the process. (Id. at pp. 1256-1257.) For the same reason, if the juvenile court in this case had been asked to assess possible placements for Ke., it would not have abused its discretion by declining to engage in assessments of placements whose suitability would have been purely hypothetical. Ke. is an adolescent with significant emotional issues. The court could not predict what Ke.'s mental or emotional state would be when he returned to DPSS's custody and, therefore, could not determine in advance what type of placement would promote Ke.'s best interest. The test for abuse of discretion is whether the trial court exceeded the bounds of reason, based on the circumstances before it. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) Under these circumstances, it was not an abuse of discretion to decline to act until Ke. returned and was no longer AWOL.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. CODRINGTON
J.