Opinion
F080502
07-08-2020
In re MICHAEL D., a Person Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. RACHEL J., Defendant and Appellant.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Boze, County Counsel, and Angela J. Cobb, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JVDP-19-000053)
OPINION
THE COURT APPEAL from an order of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge. Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Boze, County Counsel, and Angela J. Cobb, Deputy County Counsel, for Plaintiff and Respondent.
Before Levy, Acting P.J., Snauffer, J. and DeSantos, J.
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INTRODUCTION
Appellant Rachel J. is the mother of the minor, Michael D. Mother contends the juvenile court abused its discretion when it denied her Welfare and Institutions Code section 388 petition without an evidentiary hearing. We affirm.
References to code sections are to the Welfare and Institutions Code. --------
FACTUAL AND PROCEDURAL SUMMARY
On March 5, 2019, then 12-year-old Michael arrived at school and asked to use the phone to contact law enforcement. Michael described an incident that occurred that morning while his mother's boyfriend, Ron, was driving him to a doctor's appointment. Mother hit Ron in the head twice, spit in his face, and was screaming and yelling all while Ron was driving. They never made it to the doctor's appointment. When they returned home, mother threw hot coffee in the direction of Ron and Michael and headbutted Ron. Michael stated he did not want to go home; did not feel safe at home; and did not want to be around mother. Michael also reported that mother yells at him a lot, calls him names, and slaps him in the face. It was also reported that Michael had burns on his chest, arms, and legs that were " 'beet red.' "
School personnel reported that Michael was oppositional, volatile, and had issues with adults in positions of authority. Mother refused to come to school and sign paperwork for an assessment. The assistant principal believed Michael was a traumatized child. The assistant principal also reported that mother was volatile, used profanity, and it was difficult to communicate with her.
Mother was interviewed and admitted arguing with Ron but denied hitting him, or throwing coffee. When asked about her December 2018 arrest, she stated it was for fighting with Ron but claimed she did not do anything, and that people were vindictive. Mother also claimed the school was harassing her. She stated she suffers from seizures and anxiety.
A section 300 petition was filed on Michael's behalf. The petition alleged domestic violence in the home, physical and emotional abuse of Michael, educational neglect, substance abuse and mental health issues of mother, mother's criminal record, and her prior child welfare history. Michael was detained.
The jurisdiction and disposition report indicated the social worker had been unable to interview mother. When called, mother stated she felt harassed and hung up the phone. Visits with Michael had been cut short due to mother's behavior during the visits. Michael claimed that he had lied about his mother throwing coffee. Mother and Ron were still an intact couple with a history of domestic violence.
During Michael's initial foster placement, he would run away and return home. Michael revealed the location of the foster home to mother and was in constant contact with mother by phone.
At the first child family team meeting, Mother made upsetting comments to Michael, who responded by telling mother he hated her. During visits with Michael, mother inappropriately spoke about the case to Michael, made comments upsetting to Michael, and swore at staff.
The report recommended mother engage in services to learn healthy coping skills, parenting skills, and anger management. Mother had tested positive for marijuana and completed a substance abuse assessment. The agency was concerned that mother's mental health issues were unaddressed and affecting Michael. Michael engaged in inappropriate and bizarre behavior. The agency opined it would be detrimental to return him to mother's care.
Mother requested a contested hearing. At the contested hearing on May 3, 2019, the juvenile court found the allegations of the petition true. During the disposition phase, the juvenile court ordered that mother have therapeutic visits with Michael; complete a psychotropic medication assessment and follow recommendations; complete a clinical assessment; complete a parenting course; participate in individual counseling; complete a substance abuse assessment and follow recommendations; and participate in random drug testing.
Mother filed a notice of appeal of the jurisdictional findings and disposition order. Mother failed to pursue the appeal and it was dismissed.
On August 1, 2019, mother filed a section 388 petition asking that Michael be returned to her custody. The juvenile court denied the petition without an evidentiary hearing.
On August 28, 2019, the agency filed a section 388 petition requesting that visitation with mother be suspended. The therapist, Sylvia Jasso, had recommended suspending therapeutic visits as of August 21, 2019. Jasso described several visits at which mother behaved inappropriately, despite Jasso's attempts to intervene or redirect. Mother had told Jasso that she had done nothing wrong and on August 21, 2019, notified Jasso she would not attend any more counseling sessions. Michael's emotional and behavioral issues were exacerbated during and after visits with mother.
The agency filed a report supporting its section 388 petition. The report stated that mother continued to tell Michael the whole situation was his fault and no on else wanted to visit with him; Michael tried to run away from one visit. Mother had been referred to a psychiatrist but had not followed through on the referral. Mother was calling Michael up to 15 times a day; Michael told his counselor he did not want to have phone contact with mother. Mother's clinical assessment recommended that in addition to the other services and assessments in her case plan, she participate in a domestic violence perpetrator's group and undergo a psychological evaluation.
After a hearing on September 25, 2019, the juvenile court granted the petition to suspend visits.
The six-month review report recommended continued reunification services for mother. Michael was doing better in school but still struggling in some classes. Mother claimed she had " 'fired' " Jasso. A new therapist was assigned but mother was a no-show for the appointment. When the social worker notified mother that referrals were completed for her to attend a domestic violence group and a psychological evaluation, mother argued then hung up the phone. Mother refused to participate in a psychological evaluation; had not obtained a psychiatric medication evaluation; and was not attending domestic violence classes.
The social worker made new referrals for substance abuse and mental health assessments, but mother failed to attend the appointments. She continued to test positive for marijuana.
The social worker opined that mother had not actively participated in her case plan; had not made progress toward alleviating the issues that led to the filing of the section 300 petition; and there was a continued risk of detriment if Michael was returned to her custody. Michael, however, was making good progress after visits were suspended; there were no behavioral issues.
Mother had participated in her clinical assessment and attended only six parenting classes. During the classes, she had an aggressive demeanor, reflected in her stomping her feet, gritting her teeth, and using confrontational language.
The review hearing was held on October 25, 2019. Michael testified outside mother's presence. Michael testified he wished to remain in a foster home instead of being returned to mother's custody at that time. Mother took the position that Michael should be immediately returned to her custody and there was no basis for the juvenile court to assert jurisdiction. Michael's counsel opined that considering mother's lack of progress on her case plan, it was not in Michael's best interests to be returned to mother's custody.
The juvenile court found that mother's "progress is poor as far as engagement in services" and that "things need to change" before Michael would be returned to her custody. The juvenile court found it would be detrimental to Michael to return him to mother's custody. Michael was continued in out-of-home placement and reunification services were ordered to be continued for mother.
On December 13, 2019, mother filed a section 388 petition. She requested that Michael be returned to her custody, or alternatively, she wanted resumption of visitation and overnight visits. Mother alleged she had completed a substance abuse assessment with no recommendation for treatment, completed her psychological evaluation, and maintained a safe and stable home for Michael. Mother alleged that Michael had run away from his placement several times and it would be in his best interest to return him to mother's custody.
The agency opposed the section 388 petition, stating there were no changed circumstances since visits had been suspended. Mother had not completed her psychological evaluation and there had been no progress on completing parenting classes or counseling. The agency acknowledged that Michael had recently run away from his placement for one day, but opined it was not in Michael's best interests to be returned to mother's custody or to resume visits.
The juvenile court denied an evidentiary hearing on the section 388 petition. Mother filed a timely notice of appeal.
DISCUSSION
The agency does not challenge the adequacy of mother's notice of appeal. Therefore, we dispense with any discussion or analysis of its adequacy.
Mother claims the juvenile court abused its discretion by denying her an evidentiary hearing on her section 388 petition. We disagree.
A petition to modify a juvenile court order under section 388 must allege facts showing new evidence or changed circumstances exist and changing the order will serve the child's best interests. (§ 388, subd. (a)(1) & (2); In re Nolan W. (2009) 45 Cal.4th 1217, 1235.) A petitioner must make a prima facie showing of both elements to trigger an evidentiary hearing. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) " 'A "prima facie" showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited.' " (In re Josiah S. (2002) 102 Cal.App.4th 403, 418.) Courts must liberally construe a section 388 petition in favor of its sufficiency. (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310 (Marilyn H.).) In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (In re Jackson W. (2010) 184 Cal.App.4th 247, 258.)
We review the juvenile court's summary denial of mother's section 388 petition for abuse of discretion. (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079.) The denial must be upheld unless we can determine from the record that the juvenile court's decisions "exceeded the bounds of reason by making an arbitrary, capricious or patently absurd determination." (In re Marcelo B. (2012) 209 Cal.App.4th 635, 642 (Marcelo B.).) When two or more inferences can reasonably be deduced from the facts, we have no authority to substitute our decision for that of the juvenile court. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)
Here, mother filed her section 388 petition 49 days after the six-month review hearing. During that time, mother completed a substance abuse assessment. She did not complete any additional parenting classes or counseling, or a psychological evaluation. There was no indication that mother's mindset had changed, and she now acknowledged the need for dependency jurisdiction and services. Essentially, there had been no change in circumstances since the six-month review hearing.
As for Michael's best interests, despite being absent from foster care for one day, there was no indication that Michael's opinion about remaining in foster care, rather than being returned to mother, had changed. In his foster care placement, Michael's behavior had increasingly improved and he was not receiving behavioral write-ups. Michael had been doing better in school while in foster care. Certainly, when mother could not behave appropriately during supervised visits, there is no evidence that placing Michael in mother's custody would be in his best interests. There also is no evidence, considering mother's behavior at visits and failure to complete parenting classes, that reinstating visitation with overnight visits would be in Michael's best interests.
In sum, mother failed to make any significant progress on her case plan by the six-month status review, objected to the juvenile court exercising dependency jurisdiction at that hearing, then failed to make any significant progress on her case plan after the status review hearing, but filed a section 388 petition 49 days later seeking custody or at least overnight visitation. The juvenile court's summary denial of mother's section 388 petition was not an abuse of discretion. (In re C.J.W., supra, 157 Cal.App.4th at p. 1079.) Under the facts of this case, the juvenile court's decision was not arbitrary, capricious or patently absurd. (In re Marcelo B., supra, 209 Cal.App.4th at p. 642.)
DISPOSITION
The order denying mother's section 388 petition without a hearing is affirmed.