Opinion
H047113
12-11-2019
In re A.M. et al., Persons Coming Under the Juvenile Court Law. SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. V.M., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. Nos. 18JU00270, 18JU00271)
V.M. (mother) appeals from the juvenile court's summary denial of her Welfare and Institutions Code section 388 petition requesting either that her children be placed in her care under a plan of family maintenance or for reunification services. On appeal, mother argues that the juvenile court abused its discretion when it denied her petition without conducting an evidentiary hearing. We conclude that mother did not meet her burden to demonstrate a prima facie showing of changed circumstances or that the proposed change would promote the best interests of the children. We affirm the juvenile court's order.
Unspecified statutory references are to the Welfare and Institutions Code.
BACKGROUND
1. The Section 300 Petitions
On October 26, 2018, the Santa Cruz County Human Services Department (Department) filed two section 300 petitions alleging that A.M. (daughter, born 2003) and D.H. (son, born 2005) came within the juvenile court's jurisdiction. As to daughter, the petition alleged that she came within the juvenile court's jurisdiction under section 300, subdivisions (a) (serious physical harm), (b)(1) (failure to protect), (c) (serious emotional damage), and (g) (no provision for support). As to son, the petition alleged that he came within the juvenile court's jurisdiction under section 300, subdivisions (b)(1) (failure to protect), (c) (serious emotional damage), and (g) (no provision for support).
The petitions alleged that mother pulled daughter's hair, in one instance dragging her off a chair, mother was unable and unwilling to protect daughter and son from abusive behavior perpetrated by mother's boyfriend (J.B.), and both children witnessed ongoing domestic violence between mother and J.B. The petitions further alleged that the whereabouts of the children's father, A.H. (father), were unknown and reasonable efforts to locate him had not been successful.
According to the Department's investigative report, a referral had been made on October 24, 2018, by the children's godmother (godmother), after both children claimed verbal and physical abuse by J.B. Godmother stated that both children said they did not want to be in their home anymore because of J.B. Godmother also reported that son had a bruise on his arm from when J.B. grabbed him, and both children said that J.B. punched them. Mother had a history of prior referrals to the Department.
A social worker investigated the October 24, 2018 referral and interviewed the children. Daughter told the social worker that she heard J.B. and mother fight, but she did not see any physical altercations. One time, J.B. broke down mother's bedroom door after she locked him out. Mother later showed daughter a bruise on her thigh that she claimed was the result of J.B.'s abuse. Mother sometimes pulled daughter's hair and once dragged her off a chair. Daughter also described the incident that gave rise to the dependency petition. On the morning of October 24, 2018, daughter and son were getting ready for school when J.B. got into an argument with son. J.B. eventually chased son into his room, and daughter could hear screaming and crying. Mother was at home but did not intervene. Daughter alleged that J.B. had a history of hitting son.
Son also spoke with the social worker. He said that on October 24, 2018, he argued with J.B. After the argument, son walked towards his bedroom, and J.B. shoved him inside. Once inside, J.B. grabbed him and began "throwing him around" and pulling his hair. Mother walked in during the assault and told son that he should not be disrespectful to J.B. Son suffered a bloody nose during the altercation. Afterwards, J.B. forced son to look at himself in the bathroom mirror and told him to clean his blood from the bathroom. Son said that mother did nothing to intervene during the incident. Son also reported that J.B. had hit him approximately 20 times in the past.
The social worker also spoke with mother after responding to the family's home with two sheriff's deputies. Mother said she was not sure where father lived, and father had previously molested daughter. Mother also told the social worker that she was concerned about son's academics, and son had anger issues. One of the deputies met with mother, and mother admitted that she saw J.B. become aggressive with son. Mother said that J.B. was " 'trying to pick [son] up from throwing a tantrum.' " She also said that she told son not to be disrespectful to J.B. Mother admitted to pulling daughter's hair but insisted that she did so in a playful manner. The deputy informed mother that J.B. had admitted to becoming aggressive with son, and mother replied, " 'I don't know anything about that.' " Mother was placed under arrest.
At the initial detention hearing, the children were temporarily detained, and the trial court ordered a minimum of two supervised visits a week with mother.
2. The Jurisdiction/Disposition Report
On November 19, 2018, the Department filed a jurisdiction/disposition report recommending that the juvenile court find the allegations in the section 300 petitions to be true, both children be declared dependents of the juvenile court, and family reunification services be provided to mother and father. The children had been placed with their godparents. Father had been located and had been informed about the children's detention and placement. Father expressed that he wanted to attend court hearings and was willing to participate in services.
The jurisdiction/disposition report summarized some of the family's prior referrals, which included referrals where mother hit daughter and pulled her hair, a male cousin hit the children with a belt, son witnessed mother having sex, and mother made a suicide attempt.
Mother and father were interviewed by the Department. Father said he was now in a more stable living environment and was no longer engaging in behaviors that placed the children at risk. He also believed that he would benefit from counseling services.
On November 20, 2018, the juvenile court found father to be the presumed father of both children. --------
Mother said she wanted her children to be happy even if it meant that her children did not live with her. Mother believed that the children could benefit from counseling services, but she did not believe she would personally benefit from services offered by the Department. She told the social worker that she had been living with J.B. for a year, and neither she nor J.B. were presently working because they wanted to focus on the children's needs.
Mother said she was " 'supportive' " of the children living with their godmother. She also said she was " 'fine' " with living separately from the children. Mother said that before the children were removed, she had already arranged for daughter to live with godmother so she could " 'focus' " on son's behavior. Mother was not currently interested in visitation because she believed the children needed a " 'cooling off period.' " The Department's in-house visitation supervisor contacted mother to set up visitation with the children, but mother did not return the supervisor's phone call.
The social worker met with both children. Daughter told the social worker that she was comfortable with her placement, and she also thought it was best for son to be with godmother. Son said that mother had contacted them only once since they were placed with their godparents. Mother told son that she was not going to engage in visits, and she believed that son and daughter were " 'overreacting.' " A referral had been made for the children to receive mental health services. Otherwise, the children were adjusting well in their placement and seemed comfortable in their godparents' home.
The Department recommended a case plan for mother that included individual counseling, mental health services, parenting classes, a substance abuse assessment, and drug testing.
3. Jurisdiction/Disposition
On November 29, 2018, at the originally-scheduled jurisdiction/disposition hearing, mother indicated that she was willing to waive reunification services. Counsel for the children requested a continuance to discuss the issue with the children, which the juvenile court granted.
At the continued hearing on December 6, 2018, mother again indicated that she wished to waive reunification services. However, as the hearing progressed, mother became unsure of her decision.
After an off-the-record settlement conference, mother agreed to waive family reunification services. She submitted on the settlement conference and on the information contained in the social worker's jurisdiction/disposition report. Father was not present at the hearing on jurisdiction, and the juvenile court denied his counsel's request for a continuance.
Subsequently, with respect to daughter, the juvenile court found the allegations in the section 300 petition to be true except for the allegations set forth under section 300, subdivisions (a) (the abuse by mother where mother allegedly pulled daughter's hair) and (g) (father's whereabouts were unknown). With respect to son, the juvenile court found the allegations in the section 300 petition to be true except for the allegations set forth under section 300, subdivision (g) (father's whereabouts were unknown). The juvenile court adopted the recommendations in the social worker's jurisdiction/disposition report as to father and ordered reunification services. The juvenile court further found by clear and convincing evidence that reunification services would not be provided to mother pursuant to section 361.5, subdivision (b)(14) because mother was not interested in having the children returned to her and did not wish to receive reunification services. Supervised visits were ordered between mother and the children at a minimum of once per month.
4. Six-Month Review Report and the Department's Section 388 Petition
On May 28, 2019, the Department filed a six-month review report. The report recommended that both children remain dependents of the juvenile court, family reunification services for father be terminated, and a section 366.26 hearing be set to determine a permanent plan for both children.
During the reporting period, the children continued to live with their godparents. Both children had limited contact with mother and only had weekly supervised phone calls. The children had not had contact with father. Father had not followed through with his case plan in any substantive way and had stopped communicating with the Department. Daughter said she was interested in having more contact with mother but was not interested in having contact with father. Son said he was comfortable staying with his godparents and believed that he had more support and was doing better in their care. The godparents asked that the Department consider them as a concurrent placement for the children.
Subsequently, on May 29, 2019, the Department filed a section 388 petition requesting that the juvenile court terminate father's reunification services. The juvenile court set the matter for a hearing.
5. The Six-Month Review Hearing and the Hearing on the Department's Section 388 Petition
On June 13, 2019, the juvenile court held a combined six-month review hearing and hearing on the Department's section 388 petition. During the hearing, mother advised the juvenile court that she was reconsidering her earlier waiver of reunification services. The juvenile court granted the Department's section 388 petition and terminated father's reunification services. The juvenile court then adopted the recommendations contained in the Department's six-month review report and set a section 366.26 hearing. Supervised monthly telephone calls were scheduled between mother and the children.
6. Mother's Section 388 Petition
The same day as the combined six-month review hearing and hearing on the Department's section 388 petition, mother filed her own section 388 petition requesting that the juvenile court vacate the section 366.26 hearing, order family maintenance or reunification services, and increase mother's visitation to a minimum of every other week.
According to the section 388 petition, mother believed that it would be in her children's best interest to live with her or to reunify with her. Mother stated that she "participated in services on her own to address the issues that brought her child before the Dependency Court" after the jurisdiction/disposition hearing. Mother asserted that her mental health was now stable, and she was under the care and treatment of Dr. Katherine Kenny, who she saw monthly for medication management. Mother was presently enrolled and attending the "Positive Parenting Program," which she started on May 22, 2019. Mother attached three letters of support from family and friends. She also included a letter that she wrote claiming that she visited her children and maintained a parent-child relationship with them. She further included a lease agreement that reflected that she had stable housing and explained that the children would have their own room if they were returned to her care.
On June 21, 2019, the juvenile court set the matter for a hearing to decide whether to conduct an evidentiary hearing on the petition.
7. The Hearing on the Section 388 Petition
On July 18, 2019, the juvenile court held the hearing on mother's section 388 petition.
Counsel for the children argued that mother had reunified with her children after previous dependency proceedings, but the circumstances of each of the dependencies remained largely the same with "drug usage, corporal punishment and domestic violence" existing within the home. Furthermore, the criminal case against mother was still pending, and the trial in that case had been continued until September. Counsel further argued that she was concerned that mother was still in a relationship with J.B. Son had informed counsel that he remained concerned about J.B. Son had been "very sad" when mother waived services and was glad that she was trying to "fight for him now," but he did not believe J.B. had sincerely changed. Daughter had informed counsel that she was impressed that mother had voluntarily participated in services and was also impressed that J.B. had voluntarily participated in services. Daughter, however, did not feel that it was safe for her to return home.
The Department agreed with the children's counsel. The Department acknowledged that mother had started participating in parenting classes on May 22, 2019, but the children were removed from her care back in October of the previous year. The Department also argued that even though a friend wrote a letter in support that stated that mother inspired her to get out of a toxic relationship, mother herself was unable to extricate herself from her toxic relationship with J.B. Mother attached a letter from Dr. Kenny about her medication management, but the letter did not explain what she was being treated for, and it was unclear whether the medication she was on was an "antibiotic or a psychotropic medication," or if mother was taking "Suboxone" or "vitamins."
The Department opined that the case plan it had recommended for mother included services like individual counseling and domestic violence counseling. Mother, however, had not participated in those types of services, nor had she drug tested or gone through substance abuse counseling. Thus, the Department concluded that mother had not shown that she had changed.
Mother's counsel argued that mother continued to have the children's best interests in mind, and mother voluntarily participated in services that otherwise would have been a part of the case plan. Mother did not believe the children presently had a stable placement.
Mother also addressed the juvenile court. She explained that between August 2018 and February 2019, she was fighting an unlawful detainer action. She wanted to provide her children with a home, so she searched for housing, which required a lot of travel and resulted in her having to cancel appointments with her children.
Mother believed that she and her children had been going through "the transitional phase of bringing someone [(J.B.)] into the home" when the children were removed. She explained that she was close with her two children, and there was a "barrier between any kind of communication with the kids and [J.B.]." Mother believed the best solution was to continue to participate in parenting classes. She further described the allegations about her relationship with J.B. as "hearsay."
Acknowledging that the medical letter provided by her doctor did not provide a diagnosis of her condition, mother insisted that she had medical rights, and the letter was sufficient because her doctor confirmed that she was under her care and was presently on medication. Mother also insisted that she was "not doing drugs," and she had previously tested in 2015 "as much as the county wanted [her] to."
After considering the parties' arguments, the juvenile court denied mother's section 388 petition without an evidentiary hearing. The juvenile court stated: "I am going to deny the .388 based upon the fact that I believe that it's changing as opposed to changed circumstances. Especially given the late date and that it is not in the children's best interest at this time that further reunification services be given, and despite the fact that you have this strong relationship I am concerned that the main components of the case plan that I would want to see which is dealing with the domestic violence and counseling issues I haven't seen."
The juvenile court observed that mother wanted to maintain her privacy with respect to her medical information but believed that this decision was inconsistent with wanting to move forward with reunification. Moreover, the juvenile court remained concerned that mother did not have insight into how the incidents that started the dependency impacted her children.
The juvenile court further stated: "I am glad that I can see that you feel much calmer today, much more committed to your relationship with [J.B.] and feel like you have a safe relationship with him. I am hoping that you are going to continue to work on any issues because, again, your children are going to have a relationship with you, and you understanding how to navigate these issues is going to be really important to them."
DISCUSSION
On appeal, mother argues that the juvenile court abused its discretion when it denied her section 388 petition without holding an evidentiary hearing. As we explain, we reject mother's arguments and affirm the juvenile court's order.
1. Overview of Section 388 Petitions
A parent may petition under section 388 to "change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court" upon a showing of "change of circumstance or new evidence." (§ 388, subd. (a)(1).) The juvenile court shall order a hearing when "it appears that the best interests of the child . . . may be promoted" by the change in order. (§ 388, subd. (d).) Section 388 petitions are "liberally construed in favor of granting a hearing to consider the parent's request." (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) "The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (Id. at p. 310.)
On appeal, "[w]e review a summary denial of a hearing on a modification petition for abuse of discretion. [Citation.] Under this standard of review, we will not disturb the decision of the trial court unless the trial court exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination." (In re A.S. (2009) 180 Cal.App.4th 351, 358.)
"The parent bears the burden of showing both a change of circumstance exists and that the proposed change is in the child's best interests. [Citation.] A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child's best interests." (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
2. Application to Mother's Case
Mother argues that she made a prima facie showing of changed circumstances and new information. Therefore, she insists that the juvenile court abused its discretion when it denied her section 388 petition without holding an evidentiary hearing.
In support of her position, mother cites to the information provided with her section 388 petition. Specifically, mother points out that she was seeing a doctor for medication management, and she had written letters retracting her waiver of her right to reunification services and addressing why it would be in her children's best interests to be reunified with her. Mother also provided an enrollment letter verifying that she was presently enrolled in parenting classes, letters of support received from family and friends, and a lease agreement that showed she was able to find stable housing.
We agree that mother has made some laudable progress. Mother's petition, however, demonstrated changing circumstances, not changed circumstances, which is insufficient to trigger an evidentiary hearing on the section 388 petition. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1072.) Mother only recently enrolled in a parenting class and had yet to complete the coursework. She did not engage in any other services such as domestic violence counseling or individual counseling, which the Department initially recommended as part of her case plan. She remained in a relationship with J.B., even though the dependency petitions alleged that J.B. had abused the children in the past and mother had failed to protect them.
Mother argues that she is not required to demonstrate that she corrected the protective issues that gave rise to the dependency proceedings. She also insists that her petition was not directed at jurisdictional issues but at dispositional issues, and her petition demonstrated that she had decided that waiving reunification services was a mistake and that she was willing to proactively take steps to undo her prior waiver. Yet "[n]ot every change in circumstance can justify modification of a prior order. [Citation.] The change in circumstances must relate to the purpose of the order and be such that the modification of the prior order is appropriate. [Citations.] In other words, the problem that initially brought the child within the dependency system must be removed or ameliorated." (In re A.A. (2012) 203 Cal.App.4th 597, 612.) At best, mother's petition demonstrated that the issues that brought the children within the dependency court's jurisdiction had been minimally ameliorated, as there was little evidence to show that she addressed the domestic violence component of her case.
Moreover, even if we assume that mother made a prima facie case of changed circumstances, she failed to make a prima facie showing that granting her section 388 petition was in the children's best interests. In In re Kimberly F. (1997) 56 Cal.App.4th 519, the appellate court determined that the factors to be considered when evaluating whether granting a section 388 petition promotes a child's best interests include (1) the seriousness of the reason for the dependency, (2) the strength of the existing bond between the parent and child and to the caretakers and the length of time a child has been in the dependency system in relationship to the parental bond, and (3) the degree to which the problems that brought the children within the dependency court's jurisdiction have been ameliorated. (Id. at pp. 531-532.)
As mother observes, the Kimberly F. factors have been criticized by other courts because "they do not take into account the Supreme Court's analysis in [In re Stephanie M. (1994) 7 Cal.4th 295], applicable after reunification efforts have been terminated." (In re J.C. (2014) 226 Cal.App.4th 503, 527.) "[A]fter reunification efforts have terminated, the court's focus shifts from family reunification toward promoting the child's needs for permanency and stability." (Ibid.) Thus, in J.C., the Fourth Appellate District concluded that after reunification services are terminated, a parent "must establish how such a change will advance the child's need for permanency and stability." (Ibid.)
Even assuming that the Kimberly F. factors apply, mother has not demonstrated that granting the section 388 petition would be in the children's best interests. The domestic violence problems that triggered the dependency proceeding were serious. Although both children were bonded with mother, they were comfortable in their godparents' care. Furthermore, there was little evidence that the problems that brought the children within the dependency court's jurisdiction had been addressed. At the hearing on the section 388 petition, the children's counsel informed the juvenile court that both children had reservations about returning to mother's care. Son did not believe that J.B. had sincerely changed, and daughter did not feel it was safe for her to return home. Mother made some commendable progress by seeking out parenting classes, but she did not participate in services that would address the other issues that gave rise to the present dependency action, including domestic violence counseling.
Based on the record, the juvenile court could have also reasonably concluded that mother did not sufficiently demonstrate that granting the section 388 petition would support the children's need for permanency and stability. Mother had only recently started to make changes and seek services, and given her history of prior dependencies and referrals, it was unclear whether any change she made now would be permanent. In contrast, both children were doing well in their godparents' care.
In sum, we find that the juvenile court did not abuse its discretion when it summarily denied mother's section 388 petition without holding an evidentiary hearing.
DISPOSITION
The juvenile court's order denying the Welfare and Institutions Code section 388 petition is affirmed.
/s/_________
Premo, Acting P.J. WE CONCUR: /s/_________
Bamattre-Manoukian, J. /s/_________
Mihara, J.