In re C.J.

Filed 8/27/07 In re C.J. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order of the Superior Court of Los Angeles County, Stephen Marpet, Referee. Affirmed.

Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Judith A. Luby, Deputy County Counsel, for Plaintiff and Respondent.

_________________________

INTRODUCTION

A legal guardian appeals from an order adjudicating a Welfare and Institutions Code section 387[1]supplemental petition and removing custody of two minor children from the legal guardian. We find that substantial evidence supports the juvenile courts finding that the factual allegations of the petition were true and that the previous disposition had not been effective in the rehabilitation or protection of the children, and we therefore affirm the juvenile courts adjudication of the petition. We also find that the evidence was sufficient to support the juvenile courts dispositional order, and that removing the children from the legal guardians custody was not an abuse of discretion. We affirm the order.

FACTUAL AND PROCEDURAL HISTORY

Detention: On January 3, 2001, the DCFS detained three children of mother L.F. (Mother): C.J., age eight years (whose father was Lamar J.); L.R., age five years (whose father was Rafael R.); and Precious F., age 23 months (whose father was later determined to be Rafael R.). Mother left the children, with no provisions, with very reluctant caretakers, a woman and her 87-year-old father, whom she met only a few days previously. The children reported that on previous occasions Mother had left them with people who did not want to take care of them. Mothers whereabouts were unknown. The children reported that C.J. had not attended school for two years, and that Mother gave them alcohol to drink on various occasions. The fathers whereabouts were unknown. The juvenile court ordered the children detained on January 8, 2001.

Jurisdiction/Disposition: As of February 20, 2001, the children lived with foster parents Mr. and Mrs. C. Mothers whereabouts were unknown. On July 18, 1992, the DCFS had opened a case for Mother after C.J. was born drug exposed; that case terminated on February 25, 1997, after Mother completed drug treatment, parenting, and random drug testing. The DCFS opened a second case on September 4, 1998, when Mother relapsed on drugs and enrolled herself with her children in a drug treatment program before a referral. Mother retained custody of the children and received family maintenance services. That case terminated on April 13, 1999. C.J. and L.R. reported that while living with Mothers friend, James, he hit them and pulled Preciouss hair, and Mother did not protect them.

On March 30, 2001, Mother was contacted at a residential drug treatment program she had entered three days earlier. On May 1, 2001, the DCFS filed a second amended section 300 petition, alleging (1) a violation of section 300, subdivision (b), because Mother failed to provide regular care for the children and failed to supervise or protect the children, and (2) a violation of section 300, subdivision (g), because the whereabouts of C.J.s father, Lamar J., was unknown and he had failed to provide C.J. with the basic necessities of life. As of May 1, 2001, the children lived with Opal A. Mother was also a convicted felon with arrests or convictions for prostitution, burglary, receiving stolen property, robbery, and possessing a controlled substance. Mother random drug tested negatively three times in April 2001, and participated well in a six-month residential drug program, attended all meetings, and completed all work assignments. Mother saw two of the children in court on April 3, 2001, had a visit scheduled for April 23, 2001, and called the CSW three times a week to ask how the children were doing. Neither Mother nor Rafael R. called Opal A.s home, and neither parent called or visited during the previous placement from February to April 2001.

On May 1, 2001, the juvenile court adjudicated the matter, found that C.J., L.R., and Precious were persons described by section 300, subdivision (b), and sustained the allegation in the petition that Mother abandoned the children with an unrelated caretaker without plans for their care and supervision and failed to return for the children or leave information about how to contact Mother. The juvenile court also sustained the allegation that Mother was a drug user and had a history of drug use and of theft, drug-, and assault-related crimes. The juvenile court declared C.J., L.R., and Precious dependent children of the court, ordered family reunification services be provided for them and Mother, and ordered Mother to participate in conjoint counseling, parenting, drug counseling, and random drug testing.

On June 5, 2001, hearing, the juvenile court sustained allegations in the petition as to Lamar J. and Rafael R., finding that C.J. was a person described by section 300, subdivisions (b) and (g) and that L.R. and Precious were persons described by section 300, subdivision (b). Because he was an alleged father, Lamar J. was not permitted family reunification services. The juvenile court ordered family reunification services to be offered to Rafael R. only, and ordered him to participate in a counseling program, to include parenting, drug counseling, and random drug testing.

Six-Month Review Hearing: As of September 10, 2001, C.J. lived with foster parent Louella M., and L.R. and Precious lived with foster parent Lawuna C. C.J. had several placements because of behavioral problems; three of her foster parents had stated that C.J. was defiant, aggressive, disrespectful, and hostile toward L.R. and Precious. These problems caused foster parents to request removal of C.J. from their home. C.J. had assumed a parental role, treating L.R. and Precious as if she were their mother, and admitted to a CSW that she hurt her brother and sister because Mother had yelled, screamed, and cussed at her. C.J. exhibited a distorted view of reality versus fantasy, had poor judgment, and interacted negatively with her siblings, whom she manipulated, yelled at, and fought with. C.J. had difficulty telling the truth and accepting responsibility. The CSW suggested psychotherapy for C.J., but also described her as a warm, affectionate, sweet, mature young lady who struggled for attention. L.R. said he liked it better when C.J. did not live with him and Precious, because C.J. hit them, was mean to them, and told lies. Precious was quiet and withdrawn, and was attached to her siblings, especially C.J.. Precious had a speech delay and did not speak much. Mother, however, stated that Precious was talking before she was taken from Mother.

Mother had problems finding a residence and a drug treatment facility. On June 21, 2001, the CSW received a report showing that Mother tested negative for illicit drugs. Mother reported on August 7, 2001, that she and Rafael R. had moved to a mini-apartment in Los Angeles. Mother and Rafael R. visited the DCFS office on August 29, 2001. Mother appeared healthy and happy. She explained that difficulties with placement and personal problems caused her not to complete her court-ordered programs and random drug testing. Mother said she was willing to start again with random drug testing, parent education, and a drug treatment program. She and Rafael R. had enrolled at the House of Uhuru Substance Abuse Program. Rafael R. was employed at a towing company. Mother and Rafael R.s monitored visits with the three children were positive and happy, although sad when they did not want to part without the children. Because Mother and Rafael R. showed a lack of stability and responsibility and consistency in complying with court orders, the CSW concluded that it was not in the childrens best interest to return to them at present.

By September 17, 2001, the CSW had arranged for the children to begin counseling. The CSW reported that although sibling visits with parents had normally occurred weekly, Mothers instability and inconsistency in her life had caused the visits not to have occurred for three weeks.

At the September 17, 2001, hearing, the juvenile court ordered the CSW to look for a foster home that could take all three children, ordered the DCFS to refer Precious for speech evaluation, and set a review hearing for March 11, 2002.

Review Hearing of April 22, 2002: The three children were placed with Sonja H. on February 1, 2002, where they were stable with no known behavior problems. Mother was terminated from Mini House Treatment Program on April 27, 2001. Mother was released from her next residential program, His Sheltering Arms, Inc., because she had a dual diagnosis of drug abuse and depression and was taking prescribed Prozac and Lithium. Mother entered the Alcohol Center for Women Residential Treatment Center Program in September 2001, but was terminated on January 15, 2002, because she failed to abide by the centers rules. Rafael R. reported that Mother was arrested for prostitution on January 28, 2002, was incarcerated, and appeared to be using drugs again. Mother had tested negative for illicit drugs four times in October and November, 2001. Before her arrest, Mother maintained regular monitored visits with the children. The CSW had monitored Mother and Rafael R.s visits with the three children, who were happy to see Mother and full of smiles during visits. The children were being referred for counseling. Results of Preciouss February 20, 2002, speech evaluation were pending. Because of C.J.s bed wetting and daily headaches, psychological testing was requested for her. C.J. also had reading difficulties. Foster parent Sonja H. reported that C.J. helped with her siblings, and the children got along well and did not fight any more. L.R. had become impulsive and aggressive, disruptive in class, and refused to do his homework, causing a referral for psychological testing and a request for special education testing. The CSW could not understand what Precious was saying, but Sonja H. said she understood Precious. Preciouss speech evaluation resulted in a finding that Preciouss ears were impacted with wax, and Precious was to be seen by a physician on March 27, 2002, to remove fluid in her ears.

After her release from jail on March 20, 2002, Mother admitted to a CSW that she had not completed her court-ordered programs and had not randomly drug tested consistently. Mother tested negative for illicit drugs on four dates in October and November 2001. Mother stated her willingness to begin and continue with random drug testing, parent education, and drug treatment. On March 20, 2002, Mother was provided with additional referrals to these programs. As of April 22, 2002, Rafael R. had not complied with court orders. He and Mother lacked stable housing or sufficient income for the children, and had showed a lack of stability and responsibility in working diligently to comply with court orders.

After Mothers release from jail, she did not show for a scheduled visit with the children on March 22, 2002. L.R. became upset, cried, and had several tantrums. Mothers absence did not appear to affect C.J. and Precious. Mother did not respond to several messages left by the CSW asking why she missed her visit.

On April 22, 2002, the juvenile court found that Mother and Rafael R. only partially complied with their case plan, that the children could not be returned to their physical custody and there existed no substantial probability that the children would be returned within six months, and ordered reunification services terminated for Mother as to C.J. and ordered reunification services terminated for Mother and for Rafael R. as to L.R. and Precious. The juvenile court found that it was not likely that the children could or would be adopted, ordered the DCFS to initiate or continue long-term foster care, and continued the matter for a June 18, 2002, permanent plan hearing.

In a May 14, 2002, walk-on hearing, six days previously the childrens counsel was notified that the children were separated and re-placed in a foster home, despite the courts previous order that the children not be separated, absent an emergency. L.R. had alleged physical abuse by the foster parents, and the foster family agency removed the children but did not have a home that would accept two girls and a boy. Thus the siblings were separated in new placements. The juvenile court ordered the DCFS to facilitate replacing them together in a foster home.

On June 18, 2002, the juvenile court ordered termination of reunification services for father Lamar J.

Review Hearing of October 21, 2002: For this hearing, the DCFS reported that C.J. and Precious were placed with Jackie H., and L.R. was placed with Maria R. C.J. was doing well in school, had adjusted well to her new caregivers home, and had ceased to exhibit a parental/mother image toward her siblings. L.R. also did well at school, with improved behavior, and had progressed in the caregivers home. The CSW observed L.R. to be calm, kind, and willing to follow house rules, and he got along well with his two foster brothers. Precious, three years old, was affectionate and her language skills had developed tremendously. Precious attended two speech therapy sessions a month. Precious, however, yelled when prompted to bathe or take a nap, and was referred for a psychological assessment to determine why she yelled in these circumstances. All three children participated in weekly counseling.

Mother was enrolled in a parenting and outpatient drug treatment program, had tested negative for illegal drugs, and consistently visited the children. The CSW recommended unmonitored visits, provided that Mother tested negative for illegal drugs. Mother lived in a one-bedroom duplex, which was assessed as appropriate for the children to visit.

At the October 21, 2002, hearing, their attorney stated that Precious and C.J. that morning reported they were being physically disciplined and that Precious might have bruises. The DCFS planned to re-place C.J. and Precious immediately. The juvenile court ordered the DCFS to investigate physical abuse allegations. The matter was continued to April 21, 2003.

April 21, 2003, Status Review Hearing: L.R. continued to live with Maria R. C.J. and Precious lived with appellant M.B., where they were placed on October 21, 2002. C.J., 10 years old, adjusted well to a new school, where she had many friends and was proficient academically, and to M.B.s home. C.J. was confident, talkative, and affectionate. Precious attended Head Start for three hours daily, liked school, and had many friends. Her speech had improved in that program, she attended speech therapy twice monthly, and the CSW observed Precious speak clearly and understandably. Precious and C.J. had weekend visits with L.R.. All three children participated in weekly counseling.

In November 2002, Mother was arrested for prostitution and possession of a controlled substance. She was released from jail in January 2003. Mother had not visited her children since early November 2002. On April 11, 2003, Mother told a CSW that she was badly beaten and stabbed and spent 15 days in jail. She asked to see her children, although she did not want them to see her in her present condition. She said she would telephone the children.

In the April 21, 2003, hearing, the juvenile court ordered planned permanent living with foster parents as the permanent plan, and set the matter for a review of permanent plan hearing on October 20, 2003.

October 20, 2003, review of permanent plan hearing: The DCFS reported that as a condition of her probation Mother was released to the Pasadena Recovery Center, in lieu of being sent to prison for three years. She had not contacted the children in more than six months.

C.J. and Precious continued to do well living with M.B. L.R. also did well living with Maria R. The siblings had weekend overnight visits. Precious attended Head Start, played with neighborhood children, and exerted herself more with her older siblings. M.B. reported that Preciouss sexualized behavior had significantly decreased since Precious began sex abuse counseling.

M.B. was interested in legal guardianship of C.J. and Precious. Maria R. was interested in legal guardianship of L.R..

In the October 20, 2003, hearing, the juvenile court found that the permanent plan of foster placement and a specific goal of long term foster care was appropriate. The juvenile court found that the likely date by which the DCFS would finalize the permanent plan was January 16, 2004, to which date the matter was continued.

January 16, 2004, Hearing Appointing Legal Guardians: The DCFS reported C.J. continued to need counseling because of her jealousy issues toward Precious and her feeling of abandonment by Mother. Precious needed to be evaluated by a psychologist due to her hyperactivity and mood changes. The DCFS recommended that C.J. and Precious continue counseling.

Mother had bi-monthly visits with her children before she left her in-patient program. Her whereabouts were unknown.

The DCFS recommended appointment of M.B. and Maria R. legal guardians of the children.

On January 16, 2004, the juvenile court found it would be detrimental to the children to return them to their parents and a grant of guardianship was in their best interest. The juvenile court appointed Henry and Maria R. guardians of L.R., and letters of guardianship were issued. The juvenile court appointed M.B. guardian of C.J. and of Precious. Letters of guardianship for M.B. were issued on February 20, 2004.

July 16, 2004, Status Review Hearing; Termination of Juvenile Court Jurisdiction as to L.R.: As of June 2004, Mother continued at the Pasadena Recovery Center, but had contacted her children only once. As of July 13, 2004, the Pasadena Recovery Center informed the CSW that Mother left the program one week previously.

M.B., C.J., and Precious now lived in a bigger house in Lancaster. Each child now had her own room, which led to a decrease in the childrens negative behavior. Overnight weekend visits with L.R. continued.

C.J. had completed fifth grade and did well academically. Her behavior had improved and she got along with Precious better; the sisters played together and a CSW observed them hugging and laughing.

Precious attended Head Start in the afternoon, could write and spell her last name, and her speech was more pronounced and clear. She would enter kindergarten in the fall. Preciouss behavior of staying up late and tantrums had decreased.

Precious and C.J. continued to receive individual counseling. Precious was being evaluated for medication to control her hyperactivity.

On July 16, 2004, the juvenile court terminated jurisdiction over L.R., ordered the DCFS to initiate a psychotropic evaluation of Precious for the next report, and set a review of permanent plan hearing for January 14, 2005.

January 14, 2005, Permanent Plan Hearing; Termination of Juvenile Court Jurisdiction as to C.J. and Precious: Mother had participated in His Shelter Arms, an outpatient drug program for three months, as a condition of probation. M.B. had transported the children for visitation with Mother, whom the children looked forward to seeing. Mother and children also maintained regular telephone contact.

Although C.J., 12 years old, did well in school, she appeared depressed at times, said she missed Mother a lot, and often isolated herself. M.B. reported that C.J. continued to lie. The family participated in conjoint counseling, and was referred to Family to Family Preservation for an in-home counselor. C.J.s therapist reported that [C.J.] has brought to my attention concerns about her foster mothers relationship with her and difficulties she has with the manner in which her foster mother speaks to her. For this reason, I have invited her foster mother into the session to address the concerns and work with her to help her be more understanding and empathic with [C.J.] in order to improve the relationship.

Precious, five and one-half years old, was doing well in kindergarten and was eager to learn. Her speech had improved, as had her confidence in interactions with others, but Precious continued to display poor impulse control and hyperactivity. An evaluation for psychotropic medication concluded that Precious did not need medication and was just a hyper child, which could be addressed by involving her in extracurricular activities. Precious participated in conjoint counseling with M.B. and C.J., to address abandonment issues with Mother and sibling rivalry.

The DCFS recommended termination of juvenile court jurisdiction over C.J. and Precious, with the DCFS continuing to supervise. M.B. agreed. On January 14, 2005, the juvenile court ordered jurisdiction terminated over Precious and C.J., subject to further proceedings regarding financial responsibility.

Section 388 Petition to Reinstate Jurisdiction to Address Adoption: On February 6, 2006, the DCFS filed a section 388 petition to reinstate juvenile court jurisdiction over L.R., C.J., and Precious and to set a section 366.26 hearing to address adoption. The juvenile court ordered the DCFS to investigate, prepare a report, and notify the parties of its recommendation.

In a March 23, 2006, report, the DCFS stated that Mr. and Mrs. R. desired to adopt L.R. and that M.B. desired to adopt Precious and C.J.. Mother was incarcerated on December 13, 2005 and would not be released until May 19, 2006. On March 23, 2006, the juvenile court granted the section 388 petition, reinstated the original section 300 petition to allow the DCFS to investigate changing the permanent plan from legal guardianship to adoption, and ordered the permanent plan of legal guardianship and a specific goal of adoption. The juvenile court found that the children could not be returned to the parents physical custody, and there existed no substantial probability the children would be returned within six months. The juvenile court set the matter for a section 366.26 hearing on July 20, 2006.

At a hearing on May 4, 2006, M.B.s attorney reported that M.B. had expressed doubt whether she wanted to adopt both girls. The juvenile court ordered the DCFS to provide an updated report for the July 20, 2006, hearing. In that report, the DCFS reported that C.J. and Precious lived with M.B. since October 21, 2002. M.B. had provided them with adequate care and supervision, and stated that she wanted to provide the children with a safe, stable home. Precious had participated in therapy since September 20, 2005, and had difficulty concentrating and following directions, impulsivity, and could not sit still. Precious had been receptive to therapy, had a positive therapeutic relationship with her therapist, and appeared to have a very positive relationship with M.B. C.J. was also in counseling. Her therapist stated that with the help of medication, C.J. experienced less difficulty following rules, actively discussed her problems with Precious, and learned cognitive-behavior skills.

On June 22, 2006, Mother informed the CSW that she enrolled in a drug treatment program, had been clean for ten months, and opposed adoption of the children. While incarcerated, Mother had no contact with the children.

The concurrent plan was adoption for Precious (and for L.R.) and legal guardianship for C.J.. On June 22, 2006, C.J. stated that she and M.B. did not get along and she did not want to be adopted. C.J. and M.B. would continue in family counseling to improve their relationship, and adoption of C.J. would be addressed at a later time. The DCFS recommended termination of parental rights for Precious and for L.R. and that they be freed for adoption.

July 20, 2006, Section 366.26 Hearing: The DCFS reported that M.B. stated she was no longer interested in adopting C.J., who also said she did not want to be adopted. In a section 366.26 hearing held on July 20, 2006, the trial court found that there was no subdivision (c)(1)(A) exception for L.R., but continued the hearing for C.J. and Precious for the DCFS to address the adoption plan in a supplemental report. The juvenile court ordered the children and M.B. to continue family counseling, and ordered the DCFS to submit therapist reports for an October 19, 2006, hearing and to investigate a post-adoption visitation contract between the children and Mother. The juvenile court terminated parental rights as to L.R..

October 19, 2006 Hearing: For the October 19, 2006, hearing, the DCFS reported that C.J. had stated that M.B. could adopt her, and Precious was comfortable in M.B.s care. Mothers incarceration made her unable to reunify, and C.J. and Precious had no contact with their fathers. However, another referral regarding general neglect (lack of supervision) by M.B. was under investigation. The DCFS requested that the juvenile court not terminate parental rights until a home study was completed. In a progress letter, the childrens therapist stated that Precious had developed a positive, healthy relationship with M.B., called her mommy, and expressed a desire to stay in her home. By contrast, C.J. had not developed a positive relationship with M.B. despite much family therapy work, and she expressed a desire to move to another foster home where she could feel loved and have someone to communicate with. C.J. also stated she would like to move to another foster home so she would not be put in a position of babysitting Precious and becoming physically abusive toward her. On September 26, 2006, after a visit with Mother, Precious stated, [M.B.] always calls [C.J.] names, and continued, she called her a Fat Mother Fucker one time, a fat ass . . . a bitch. C.J. confirmed these statements, saying Me and [M.B.] always call each other names. The DCFS recommended a section 730 evaluation to perform a bonding study of C.J. and M.B.

On October 18, 2006, the DCFS informed the juvenile court that on October 17, 2006, Precious and C.J. were detained from M.B., who physically assaulted the CSW in the childrens presence.

At the October 19, 2006, hearing, the juvenile court took the section 366.26 hearing off calendar, ordered the children to remain in the permanent plan of legal guardianship, and continued the matter to January 18, 2007.

On October 20, 2006, the DCFS filed a supplemental juvenile dependency petition pursuant to section 387.[2] The petition alleged that C.J. and Precious were detained from the care of M.B., who, it was alleged, had physically assaulted the CSW in the childrens presence. In a related detention report, the DCFS stated that Precious witnessed M.B. physically assaulting the CSW, Mishi Wasse, who arrived at M.B.s home to pick up the children for a monitored visit with Mother. M.B. and the CSW first spoke about deductions from the caretakers check due to the children being placed in respite care, and about M.B.s inappropriate conduct with the CSW on a previous occasion. When the CSW spoke of the importance of maintaining a respectful relationship by speaking appropriately to and not hanging up on the CSW, M.B. stated,  I dont want to [hear] a speech, I want to hear about my money.  The CSW informed M.B. that she had learned the correct amount deducted from M.B.s checks was less than M.B. had previously stated. M.B. then accused the CSW of being responsible for deductions from her check. The CSW ended the conversation and walked to the stairs to call the children to leave for the visit. M.B. screamed,  You get out of my house.  Precious then came out of her room, stood at the top of the stairs and told the CSW,  [C.J.] is still getting ready.  Grabbing the CSWs arm, M.B. yelled,  you get out of my house.  The CSW removed M.B.s hand from her arm. M.B. then forcefully pushed the CSW, who almost fell over a couch. As Precious watched, M.B. pushed the CSW out the front door and slammed the door. Precious ran outside and asked the CSW if she was OK. The CSW told Precious to return inside the house and get her sister so they could go visit Mother. C.J. and Precious came outside two minutes later and they went to the DCFS office. Precious was interviewed and said she saw the incident from the stairway. C.J. was interviewed and she said she was in the bathroom doing her hair, but she heard what the CSW and M.B. said and that M.B. was very angry and pushed the CSW out of the house and then slammed the door.

On October 20, 2006, the juvenile court found that a prima facie case was established to detain the children as persons described by section 300, subdivisions (b) and (g), ordered Precious and C.J. detained from M.B. and placed in shelter care, ordered family reunification services to be offered to M.B., and ordered that both M.B. and Mother were permitted twice a week monitored visitation for up to two hours. The matter was set for adjudication on November 14, 2006. That hearing was later continued to November 16, 2006.

November 16, 2006, Adjudication/Disposition of the Section 387 Petition: At the hearing on the section 387 petition, the CSW, Mishi Wasse, testified that previous communication between herself and M.B. was difficult and called it a challenging relationship, although this was the first time M.B. showed anger physically with Wasse. C.J., however, had previously disclosed that M.B. had physically assaulted her. On October 17, 2006, Wasse arrived at M.B.s house at about 3:45 p.m. to pick up Precious and C.J. for a visit with Mother. C.J. was not ready to go, but Precious and M.B. greeted Wasse at the front door. Wasse came inside, where she had a discussion with M.B. regarding a foster care payment she had received which reflected a deduction for respite care. After a discussion, Wasse was not able to resolve the issue. Wasse testified that she ended the conversation about the foster care payments. Voices began to escalate, creating a hostile environment for the children. Precious was in the house, but not in the same room, during this discussion. C.J. was upstairs. Wasse went to the stairs to call the children. M.B. then asked Wasse to leave. Wasse refused, because she was there to pick up the children. M.B. then grabbed Wasses arm. Wasse removed M.B.s hand from her arm, and then M.B. forcefully pushed Wasse out the front door, slamming it after her. As she did this, Wasse almost fell over a chair in the walkway, but M.B. continued to push Wasse out the door. Precious was at the top of the stairs and witnessed the incident; Wasse saw the fear on her face. Shortly after Wasse left the house, Precious came outside and asked if Wasse was all right. Wasse instructed Precious to go inside and call C.J. for the visit. C.J. came and they left for the visit. After informing her supervisor of what happened, the supervisor decided to detain the children, and Wasse detained the children and did not take them back to M.B.s house.

Wasse admitted that both Precious and C.J. had stated that they would like to return to live in M.B.s home. Neither of them had expressed fear of M.B. Wasse had concerns that M.B. would emotionally abuse the children, especially C.J.. Her therapist had also expressed that concern. M.B. had emotionally abused C.J. previously, by calling her names. C.J. responded in kind, calling M.B. names. M.B. had also complained repeatedly about C.J.s behavior and repeated lying.

M.B. testified that on October 17, 2006, she asked Wasse twice to leave, but she refused. M.B. asked her to leave because in their conversation, Wasses tone of voice was as though she were talking to a child, causing M.B. not to want to talk any more. M.B. testified that she asked Wasse to wait for the children outside. Wasse responded,  No, Im not going anywhere.  M.B. repeated her request, and Wasse again refused to go outside. M.B. testified that she did not push Wasse, but instead guided her toward the door, and Wasse cooperated and backed up.

M.B. did not know where Precious was during this conversation, but stated that when Wasse arrived, both Precious and C.J. were upstairs.

The juvenile court adjudicated the supplemental section 387 petition, ordered that petition amended to state that the legal guardian inappropriately guided the CSW, and sustained the petition as amended. The juvenile court also found that the previous disposition was not effective in the rehabilitation or protection of C.J. and Precious. In its disposition, the juvenile court ordered that custody of C.J. and Precious be taken from the guardian, that the children be suitably placed, that the guardian have monitored visitation, that the DCFS provide family reunification services to the legal guardian, that the DCFS facilitate getting the children into family counseling, and that M.B. be in individual counseling to address case issues, including anger management. The matter was set for a judicial review hearing on January 18, 2007.

M.B. filed a timely notice of appeal.

ISSUES

M.B. claims on appeal that the juvenile court:

1. Erroneously sustained the section 387 supplemental petition; and

2. Erroneously failed to return the children to M.B.s care and custody.

DISCUSSION

1. In the Adjudication, Substantial Evidence Supported the Findings That the

Factual Allegation of the Petition Was True and That the Previous Disposition

Was Not Effective

M.B. first claims that the juvenile court erroneously sustained the section 387 supplemental petition. M.B. argues that the petition concerned a dispute between the social worker and M.B., partly witnessed by Precious, and that the juvenile courts finding that M.B. inappropriately guided CSW Wasse out of the house did not support a conclusion that M.B.s actions posed a current, substantial, ongoing threat of physical or emotional harm to C.J. and Precious.

Under section 387, subdivision (b)[3], the jurisdictional fact required to modify a previous placement is that the previous disposition has not been effective in the rehabilitation or protection of the child. (In re Joel H. (1993) 19 Cal.App.4th 1185, 1200.) [T]he issue at the adjudication hearing on a supplemental petition is limited to the question whether the previous disposition was effective in the rehabilitation or protection of the child. Under [California Rules of Court, rule 5.565(e)(1)], a hearing under section 387 must be bifurcated into (1) an adjudicatory hearing on the merits of the allegations in the petition and (2) a disposition hearing on the need for the removal of the child from his or her current level of placement. At the conclusion of the adjudicatory hearing on a supplemental petition the court shall make findings that: [] (A) The factual allegations are or are not true; and [] (B) The allegation that the previous disposition has not been effective is or is not true. ([Rule 5.565(e)(1).]) The standard for removal from parental custody under section 361, subdivision (c)(1), is relevant only in a disposition hearing after the court has made true findings under rule [5.565(e)(1)]. (In re Javier G. (2006) 137 Cal.App.4th 453, 460-461.)

This court reviews a determination sustaining factual allegations of a section 387 petition under the substantial evidence test. (In re A.O. (2004) 120 Cal.App.4th 1054, 1061.)

After amending the section 387 petition to allege that the legal guardian inappropriately guided CSW Wasse out of the house, the juvenile court found the factual allegation to be true. Wasse testified that when she visited M.B.s house on October 17, 2006, to pick up the children for a visit with Mother, she and M.B. had a discussion about amounts deducted from foster care payment checks M.B. received. They did not resolve that issue, their voices escalated, and M.B. asked Wasse to leave. When Wasse refused because she was there to pick up the children, M.B. grabbed Wasses arm. When Wasse removed M.B.s hand from her arm, M.B. pushed Wasse out the front door, slamming it after her. As she did she did so, Wasse almost fell over a chair in the walkway. Precious witnessed the incident, and Wasse saw a look of fear on her face. This is substantial evidence supporting the juvenile courts sustaining of the allegations in the petition.

M.B. argues that there was no causal link between the finding that the legal guardian inappropriately guided the CSW out of the house and that M.B.s actions posed a current, substantial, ongoing threat of physical or emotional harm to C.J. and Precious. M.B. derives this test from In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1129, but Nicholas B. states the test for an adjudication under section 300. The juvenile court already had jurisdiction over C.J. and Precious. The question before the juvenile court in adjudicating a section 387 supplemental petition is, as already stated, whether the previous disposition was effective in the rehabilitation or protection of the child. (In re Javier G., supra, 137 Cal.App.4th at p. 460;  387, subd. (b); Cal. Rules of Court, rule 5.565(a).)

We have concluded that substantial evidence supports the juvenile courts finding that the factual allegation of the petition was true. The question then becomes whether the allegation that the previous disposition had not been effective in the protection or rehabilitation of the child was or was not true. (Cal. Rules of Court, rule 5.565(e)(1)(B).) The juvenile court made a finding that the previous disposition had not been effective in the rehabilitation or protection of the children. We find that substantial evidence, recited in the next part of this discussion, supported this finding.

2. The Juvenile Courts Dispositional Order Was Not an Abuse of Discretion

If, at the section 387 adjudication, the court finds the previous disposition was not effective in the protection or rehabilitation of the child, the court is required to hold a disposition hearing. ([Rule 5.565(e)(2)].) If the proposed removal of the child is from a parent or guardian, the court must apply one of the applicable standards found in section 361, subdivision (c). [Citations.] (In re Javier G., supra, 137 Cal.App.4th at p. 462.)

The relevant provision of section 361, subdivision (c) states: (c) A dependent child may not be taken from the physical custody of his or her . . . guardian . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances[:]

(1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minors physical health can be protected without removing the minor from the minors . . . guardians physical custody[.]

[A]t the dispositional hearing, the court must decide where the child will live while under its supervision, with the paramount concern being the childs best interest. [Citation.] The juvenile court has broad discretion to decide what means will best serve the childs interest and to fashion a dispositional order accordingly. [Citation.] Its determination will not be reversed absent a clear abuse of that discretion. (In re Corey A. (1991) 227 Cal.App.3d 339, 346.)

In making its dispositional findings, the juvenile court may receive and rely on evidence not pleaded in the section 387 petition. (In re Rodger H. (1991) 228 Cal.App.3d 1174, 1183.)

In October 2003, Precious said she was angry with M.B. for spanking her, and M.admitted spanking Precious a few times. As of December 15, 2004, C.J. told her therapist her concerns about her relationship with M.B. and her difficulties with the way M.B. spoke to her. Nearly two years later, C.J.s therapist reported that C.J. had not developed a healthy, positive relationship with M.B., despite much family therapy work. C.J. desired to move to another foster home where she could feel loved and have someone to communicate with. On September 26, 2006, after a monitored visit with Mother, Precious stated: [M.B.] always calls [C.J.] names . . . she called her a Fat Mother Fucker one time, a fat ass . . . a bitch. C.J. confirmed Preciouss statements, saying, Me and [M.B.] always call each other names. M.B. appeared to favor Precious over C.J., and earlier in 2006 had expressed doubt whether she wanted to adopt both girls. In June 2006, C.J. stated that she and M.did not get along, that she did not wanted to be adopted, and [w]hat I do she doesnt like and vice versa. M.B. at that time told the CSW she was no longer interested in adopting C.J.. After the children were detained from M.B., their new caregiver reported that Precious and C.J. told the caregiver that M.B. always got their medication wrong, and allowed them to stay up until 1:00 and 2:00 in the morning. After the detention, C.J. disclosed an incident where M.B. had physically assaulted C.J..

Since the paramount concern was the best interest of the children, there was sufficient evidence of difficulties between C.J. and M.B., and that living in M.B.s custody would put the children at emotional risk and at risk of physical neglect. We find no abuse of discretion in the juvenile courts dispositional order.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

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[1] Unless otherwise specified, statutes opinion will refer to the Welfare and Institutions Code.

[2] Section 387, subdivisions (a) and (b) authorize the DCSF to file a supplemental petition seeking an order changing or modifying a previous order by removing a child from the physical custody of a parent, guardian, relative or friend and directing placement in a foster home or commitment to a private or county institution, where the previous disposition has not been effective in the rehabilitation or protection of the child.

[3] Section 387, subdivision (b) states: The supplemental petition shall be filed by the social worker in the original matter and shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child, or, in the case of a placement with a relative, sufficient to show that the placement is not appropriate in view of the criteria in Section 361.3.