In re A.M.

 

 

 

 

 

 

 

 

 

Filed 10/17/13  In re A.M. CA4/2

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.

 

 

 

IN THE COURT OF APPEAL OF THE STATE OF >CALIFORNIA>

 

FOURTH APPELLATE DISTRICT

 

DIVISION TWO

 

 
>

In re A.M. et al., Persons Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,   Plaintiff and Respondent,   v.   R.S.,   Defendant and Appellant.	E057778   (Super.Ct.No. RIJ111306)   OPINION

APPEAL from the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County.  Jacqueline C.
Jackson, Judge.  Affirmed.

Roni Keller, under appointment by the Court of
Appeal, for Defendant and Appellant.

Pamela J. Walls, County
Counsel, and Anna M. Deckert,
Deputy County Counsel, for Plaintiff and Respondent.

R.S. (mother) has three children.  In January 2006, when this dependency was
originally filed, the oldest child was four, the middle child was two, and the
youngest child was in utero.  In December 2012, when the juvenile court
made the orders that are challenged in this appeal, the children were eleven,
nine, and six, respectively.  The mother
has been given seven years to reunify successfully, but she has failed to do
so.

The challenged orders denied the mother’s
“changed circumstances” petition (Welf. & Inst. Code, § 388) and
reduced her visitation.  At that time, a
permanency planning hearing (Welf. & Inst. Code, § 366.26) had been
set, but it had not yet been held.  When
the mother appealed, we stayed the hearing.

The mother’s changed circumstances petition
merely alleged that she was in therapy; however, she had been in therapy, on
and off, throughout the dependency. 
Thus, the petition fell woefully short of suggesting that she would ever
be able to reunify.  The juvenile court
properly reduced the mother’s visitation because it was interfering with the
children’s relationship with their prospective adoptive parents.  This appeal wholly lacks merit.  We therefore affirm the orders and vacate the
stay.  It’s time to get this show on the
road.

I

FACTUAL AND PROCEDURAL
BACKGROUND

A.        The Original and
Amended Petitions:  Physical Abuse.

As of January 2006, the mother had two children
by her husband J.M.href="#_ftn1" name="_ftnref1"
title="">^[1] â€” daughters A.M. and M.M.  A.M. was four and M.M. was two.  The mother and the children were all living
with the mother’s then-boyfriend, J.T.

In January 2006, the mother took M.M. to the
emergency room.  M.M. had a cut on her
head and bruises in different stages of healing.  M.M. said, “[J.T.], mommy hit.”  The older girl, A.M., said that J.T. and the
mother “hit [M.M.] with a belt ‘all the time,’” and that they also hit
her.  As a result, the Riverside County
Department of Public Social Services (the Department) detained both girls and
filed a dependency petition regarding them.

In February 2006, the mother gave birth to a
child by J.T. — a son, E.T.  The
Department immediately detained E.T. and filed an href="http://www.fearnotlaw.com/">amended petition adding him as a subject
of the dependency.

In April 2006, at the
jurisdictional/dispositional hearing, the juvenile court found jurisdiction
based on serious physical harm (as to A.M. and M.M. only) (Welf. & Inst.
Code, § 300, subd. (a)), failure to protect (id., § 300, subd. (b)), and abuse of a sibling (>id., § 300, subd. (j)).  It formally removed the children from their
parents’ custody and ordered reunification services.

B.        The Subsequent
Petition:  Sexual Abuse.

Around June 2006, A.M. told a foster parent that
J.T. had sexually molested her.  In a
forensic interview, she disclosed “vivid details” of the sexual abuse.  The mother refused to believe that she was
telling the truth.  Accordingly, in
August 2006, the Department filed a subsequent petition.

In November 2006, at a jurisdictional/dispositional
hearing on the subsequent petition, the juvenile court found that it also had
jurisdiction over A.M. and M.M. based on sexual abuse (Welf. & Inst. Code,
§ 300, subd. (d)).

The mother complied with her reunification
services plan.  Thus, in June 2008, the
juvenile court gave the mother sole custody of the children and terminated
jurisdiction.

C.        The “Reactivated”
Petition:  Sexual Abuse of an Unrelated
Child at the Mother’s Home.

In July 2009, an unrelated girl reported that,
during a party at the mother’s home, J.T. had molested her.  The mother admitted that she had let J.T.
move back in with her.  Accordingly, the
children were redetained and the Department filed a “[r]eactivated” petition,
under the same case number, regarding them.

In September 2009, at the jurisdictional hearing
on the reactivated petition, the juvenile court found jurisdiction based on
failure to protect (Welf. & Inst. Code, § 300, subd. (b)), sexual
abuse (id., § 300, subd. (d)),
and, solely as to A.M. and M.M., their father’s failure to support (>id., § 300, subd. (g)).  In November 2009, at the dispositional
hearing, it formally removed the children from their parents’ custody and
ordered reunification services for the mother.

D.        The Supplemental
Petition:  Ineffective Disposition.

Once again, the mother complied with her
reunification services plan.  Thus, in
April 2011, the children were placed back with her.

Between April and October 2011, however, concerns
accumulated about the appropriateness of this placement.

In April 2011, the children disclosed that,
during overnight visits, the mother had also let male friends sleep over.  “[A]bout four or five men sleep over and they
sleep on the floor in the living room.”href="#_ftn2" name="_ftnref2" title="">^[2]  Sometimes A.M. and M.M. slept on the floor in
the living room at the same time as the men. 
On one occasion, the mother’s boyfriend had “spooned” A.M.    M.M. and E.T. both disclosed that the
mother’s boyfriend regularly slept over at the house.

The mother signed a written safety plan, which
provided, “no one is to live, stay, visit the home.”

In July 2011, when a social worker was visiting,
J.T. came to the home.  The mother
admitted that he had come there once before to see E.T.

In June 2011, an unnamed informant reported a
number of statements by A.M.  A.M. had
said that one of her mother’s boyfriends tried to hug her and bite her
neck.  She also said “she does not like
the text picture and messages that her mother’s boyfriend sends her.”

In August 2011, an unnamed informant once again
reported a number of statements by A.M. 
A.M. said “she feels she has no support from mom when she talks about
the sexual abuse as mom tells her that ‘that did not happen[].’”  A.M. said she heard the mother and her
friends talk “about sex and sexual positions . . . .”  A.M. (then aged 10) also said, “Mom also goes
out and parties at night and leaves [me] caring for [my] siblings.”  A.M. said that she would not tell the social
worker anything and that “it’s better to lie to CPS than go to foster care.”

When the social worker questioned A.M., she said
that J.T. had been to the house “maybe five or seven times[,] maybe more.”  M.M. and E.T. confirmed this.  He gave the mother money.  Sometimes he asked A.M. to hug him.  A.M. also said that the mother went out every
Friday, leaving A.M. to care for her siblings.

When the social worker questioned M.M., she
started to cry because the mother’s boyfriend played with A.M. and did not play
with her.  “He tickles [A.M.] and plays
around with her.”  He had bought a horse
for A.M., which A.M. rode at his ranch. 
The mother admitted that the boyfriend came to her home “to fix
things.”  He was asked to Livescan but
never did.

In October 2011, the Department redetained the
children.  It filed a supplemental
petition, which alleged that “the mother has failed multiple safety plans, she
continues to minimize the sexual abuse that has occurred to her children, and
[she] continues to allow known perpetrators and numerous males to frequent the
family home . . . .” 

In November 2011, at a jurisdictional/dispositional
hearing on the supplemental petition, the juvenile court found the allegations
of the petition true; it also found that the previous disposition had not been
effective.  Once again, it formally
removed the children from the mother’s custody. 
This time, however, it terminated the mother’s reunification services,
and it set a permanency planning hearing
pursuant to Welfare and Institutions Code section 366.26 (section 366.26) for
March 2012.

E.         The Section 366.26
Hearing.

Ultimately, the section 366.26 hearing was
continued to February 2013.

Meanwhile, in October 2012, the children were
placed with prospective adoptive parents.

In December 2012, the juvenile court held a
review hearing.  Two days before the
hearing, the mother filed a petition pursuant to Welfare and Institutions Code
section 388 (section 388 petition). 
After hearing argument, the juvenile court denied the section 388
petition.  Thereafter, at the
department’s request, it reduced the mother’s visitation from one hour, twice a
week, to two hours, once a month.  It
confirmed the date of the section 366.26 hearing.

On February 4, 2013, this court stayed the
then-pending section 366.26 hearing.

II

SECTION 388 PETITION

The mother contends that the trial court erred by
denying her section 388 petition without an evidentiary hearing.

A.        Additional Factual and
Procedural Background.

In her section 388 petition, the mother asked the
juvenile court to vacate the section 366.26 hearing and either (1) reinstate
reunification services and liberalize visitation, or (2) place the children
with her.

As changed circumstances, she alleged that she
was continuing to engage in individual counseling.  The counseling addressed “the issues she has
had of parenting, her [own] early sexual abuse, and her relationships with her
children and her boyfriend.”  Her
therapist had agreed that she did not need group counseling.  Her therapist was “confident . . .
that [the mother] . . . would not in any way ignore any red flags due
to possible abuse in her children.”

Regarding the children’s best interests, the
mother alleged that the children wanted to return to her care rather than be
adopted, and that during visitation, she “interacts appropriately with her
children and continues to parent them . . . .”

The juvenile court denied the petition without an
evidentiary hearing.  It found that there
were no changed circumstances and that it would not be in the best interest of
the children to grant the petition.

B.        Analysis.

“To prevail on a section 388 petition, the moving
party must establish that new evidence or changed circumstances exist so that
the proposed change in the court’s order would promote the best interests of
the child.  [Citations.]  Unless the moving party makes a prima facie
showing of both elements, the petition may denied without an evidentiary
hearing.  [Citation.]”  (In re
Marcelo B. (2012) 209 Cal.App.4th 635, 641-642.)

“‘Whether [the petitioner] made a prima facie
showing entitling [the petitioner] to a hearing depends on the facts alleged in
[the] petition, as well as the facts established as without dispute by the
[dependency] court’s own file . . . .’  [Citation.]” 
(In re B.C. (2011) 192
Cal.App.4th 129, 141 [brackets in original].) 
“In considering whether the petitioner has made the requisite showing,
the juvenile court may consider the entire factual and procedural history of
the case.  [Citation.]”  (In re
Mickel O. (2011) 197 Cal.App.4th 586, 616.)

“We review the grant or denial of a petition for
modification under section 388 for an abuse of discretion.  [Citations.]” 
(In re Y.M. (2012) 207
Cal.App.4th 892, 918.) 
“ . . . ‘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, original quotation marks corrected.)  “‘The denial of a section 388 motion rarely
merits reversal as an abuse of discretion.’ 
[Citation.]”  (>In re Daniel C. (2006) 141
Cal.App.4th 1438, 1445.)

In discussing this issue, the mother’s appellate
counsel completely ignores all of the counseling that the mother had received
during the preceding seven years. 
However, this is highly relevant to whether she showed any changed
circumstances.

The mother first started case-related counseling
in January 2006, less than a month after the case was filed.  She completed this counseling in April
2006.  At that time, the social worker
observed:  “She appears detached from the
treatment and is not benefiting from services.”

Also in April 2006, the mother started a 52-week
counseling program for child batterers. 
She completed this program in May 2007.

Meanwhile, in October 2006, after the subsequent
petition was filed, the mother started a counseling program specifically geared
to sexual abuse.  A little over a year
later, she completed this program.

The mother was asked to go to a group therapy
program, as well.  At first, she refused,
saying “she has had counseling services throughout her life.”  Eventually, she went to a few sessions, then
quit.

According to an April 2007 psychological
evaluation, “[The mother] has been exposed to a significant amount of treatment
. . . .  My impression is
that she ‘put up’ with this process as opposed to actively involving herself in
treatment . . . .  I doubt
that she internalized much of it.”

After the reactivated petition was filed, the
mother was required to attend both general counseling and sexual abuse
counseling.  Accordingly, in August 2009,
she started general counseling again.  As
the counseling proceeded, her therapist reported that “[t]here are no concerns
as to [the mother] being unprotective with her children.”  “[The mother] is now able to see the ‘red
flags’ and make different choices.” 
“[S]he is capable and willing to provide a safe and healthy environment
for [the children].”

Once again, the mother was resistant to attending
group sexual abuse therapy.  According to
her, she started attending in October 2010. 
However, it later appeared that this was not true.  As of October 2011, her individual counselor
had agreed that she did not need to attend.

Meanwhile, in or about March 2011, the mother
started conjoint counseling with A.M. and, separately, conjoint therapy with
E.T.  In September 2011, she started
conjoint counseling with M.M.

Around September 2011, however, the mother
unilaterally stopped going to her individual counseling appointments.  She also unilaterally stopped going to
conjoint therapy with E.T.  It is unclear
whether she ever completed her conjoint therapy with A.M. or M.M.  In October 2011, the children were
redetained.  In November 2011, the
juvenile court terminated the mother’s reunification services.

Against this background, the mere fact that the
mother was still in individual counseling was in no way a changed
circumstance.  While her counselor gave
her glowing reviews, the same counselor had also done so earlier in the case;
nevertheless, the children had had to be removed from the mother’s custody
again.  Thus, the juvenile court properly
found that there were no changed circumstances. 
Indeed, we believe that a contrary finding would have been an abuse of
discretion.

Separately and alternatively, the juvenile court
could also properly find that granting the petition was not in the best
interest of the children.  The mother had
an egregious pattern of failing to protect them.  Twice, she had complied with her
reunification plan; twice, the children had been returned to her; and twice,
they had had to be removed again. 
Admittedly, the children still loved the mother and wanted her in their
lives.  For this reason, the Department
was attempting to arrange a post-adoption contract.  However, the children themselves were not the
best judges of whether it would be in their best interest to be in her
custody.  The juvenile court could
reasonably conclude that, even assuming the mother completed therapy with
flying colors, it would not be in the best interest of the children to return
them to her.

III

REDUCED VISITATION

The mother contends that the juvenile court erred
by reducing her visitation to two hours, once a month, in anticipation of the
section 366.26 hearing.

A.        Additional Factual and
Procedural Background.

The evidence introduced at the hearing consisted
of two specified social worker’s reports, plus an oral statement by the mother
in lieu of testimony.  We limit our
review to this evidence.

Until October 2012, when the children were placed
in a prospective adoptive home, the mother had visitation once a week, for two
hours at a time, supervised by the foster mother.  She was generally appropriate during
visits.  However, she would “often” leave
early, without giving any reason.  In
September 2012, A.M. and E.T. both said they would like to have longer
visits.  M.M. said she missed her mother
and just wanted to go home.

After the prospective adoptive placement, the
mother had visitation twice a week, for one hour at a time, at the Department’s
office.  At one visit in November 2012,
as soon as the mother entered the visitation room, she began to cry
“hysterically.”  The social worker asked
her to leave the room and compose herself. 
The mother replied, “[W]hat[,] I am not allowed to express emotion to my
children[?]”  When the social worker
insisted, however, she complied.  The
mother would also tell the children “that she . . . is their mother
and that there will be no one that will take her place
. . . .” 

In the social worker’s opinion, this behavior
“sabotages the relationship between [the children] and their caregivers as they
do not allow themselves to bond . . . for fear and guilt that they
are betraying their mother.”  Previously,
the children had benefited from counseling, therapy, and behavioral
coaching.  However, visitation had made
them “uncertain[] of where their loyalty lies,” which in turn had caused their
behavior to regress.

In an addendum report, the Department asked the
juvenile court to reduce the mother’s visitation to once a month.  Minors’ counsel supported the request.  The mother opposed it, arguing that “the kids
are still saying they want to continue to see me.”

The juvenile court granted the Department’s
request and reduced visitation to two hours, once a month.  It noted, “[I]t is common when having [a
section 366.26 hearing] to reduce visitation. 
Not reducing visitation is the exception.”

B.        Analysis.

“[D]ependency law affords the juvenile court
great discretion in deciding issues relating to parent-child visitation, which
discretion we will not disturb on appeal unless the juvenile court has exceeded
the bounds of reason.  [Citation.]”  (In re
S.H. (2011) 197 Cal.App.4th 1542, 1557-1558.)

Once again, in discussing this issue, the
mother’s appellate counsel ignores the evidence that visitation was actually
detrimental to the children.  That
evidence showed that the mother was sabotaging the children’s adoptive
placement by making them feel that they were betraying her.  To that end, at one visit, she cried
hysterically and resisted leaving the room to compose herself, insisting that
she should be able to “express emotion to [her] children.”  She was “always quick to tell them” that no
one could ever take her place.  As a
result, the children were “acting out and . . .  aggressive with
each other.”  They were losing the
progress they had made in therapy.  On
this record, the juvenile court could properly have terminated visitation
entirely.  It follows that it was not an
abuse of discretion to reduce it.

The mother argues that it was “improper” to
reduce visitation in order to promote adoption. 
Admittedly, both the juvenile court and counsel for the Department noted
that it is customary to reduce visitation after reunification services are
terminated (i.e., even without any specific evidence that visitation is
detrimental).  In this case, however,
once reunification services were terminated, it was vanishingly unlikely that the
mother would ever regain custody of the children.  And the children were already placed in a
prospective adoptive home.  “‘Once
reunification services are ordered terminated, the focus shifts to the needs of
the child for permanency and stability.’ 
[Citation.]”  (>In re Celine R. (2003) 31 Cal.4th
45, 52.)  Thus, the juvenile court could
properly find that it was in the children’s best interest to promote their
bonding with the prospective adoptive parents.

Moreover, it is clear that the juvenile court did
not reduce visitation in a “one size fits all” manner.  To the contrary, it considered the specific
facts of this case.  For example, it
commented:  “ . . . I do believe
that the girls do love their mother . . . .  [But k]ids can only handle so much drama and
trauma.  At some point reality for every
child is that they want to be a normal, happy child.”  It also observed:  “ . . . I’m well aware as we
move through the process . . . we may have to revisit the issues.”

The mother argues that the reduction in
visitation violated due process because, as a practical matter, it would
prevent her from invoking the beneficial parental relationship exception to
termination of parental rights.  (Welf.
& Inst. Code, § 366.26, subd. (c)(1)(B)(i).)  However, if, after seven years of being in
and out of the mother’s custody, the children still had a genuinely beneficial
relationship with her, we cannot believe that reducing visitation for a few
months would change that.

The mother relies on cases concerning a total
denial of visitation.  (>In re Valerie A. (2007) 152
Cal.App.4th 987, 1007 [“The erroneous denial of parent-child visitation
compromises a parent’s due process rights to litigate and establish the section
366.26, subdivision (c)(1)(A) exception.”]; In
re Hunter S. (2006) 142 Cal.App.4th 1497, 1505 [“[F]or the parent
deprived of visitation, ‘it is a forgone conclusion that [she] is not going to
be able to establish the exception or have any meaningful chance to avoid the
termination of parental rights.’”].) 
“Doubtless, at some point reduction of visitation to a level that
actually denies the right or renders
it illusory, would constitute a denial of substantive due process, absent a
case-specific compelling reason to so limit visitation.  In this case, however, appellant has not
asserted any specific detriment [s]he has suffered or any particular detriment
to [her] relationship with [her children] . . . .  Appellant cites to no case in either the
dependency or delinquency context, and we have found none, holding that
limiting visitation to once a month constitutes a denial of href="http://www.fearnotlaw.com/">due process (or, for that matter, an
abuse of discretion) . . . .” 
(In re James R. (2007)
153 Cal.App.4th 413, 438.)

We therefore conclude that the juvenile court did
not abuse its discretion by reducing the mother’s visitation.

IV

DISPOSITION

The orders appealed from are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

                                                                                                RICHLI                                              

                                                                                                                                                        J.

 

We
concur:

 

McKINSTER                                    

                                                   Acting P. J.

 

 

KING                                                             

                                                                     J.