In re D.M.
Filed 6/25/13 In re D.M. CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
In re D.M. et al., Persons
Coming Under the Juvenile Court Law.
B245812
(Los Angeles
County
Super. Ct.
No. CK76884)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
L.M.,
Defendant and Appellant.
APPEAL from
an order of the Superior Court
of
County, Donna Levin, Temporary Judge. (Pursuant to Cal.
Const., art. VI, § 21.) Affirmed.
Maureen L.
Keaney, under appointment by the Court of Appeal, for Defendant and Appellant.
John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel and Jacklyn
K. Louie, Deputy County Counsel for Plaintiff and Respondent.
>
I.
INTRODUCTION
The mother, L.M., appeals from the juvenile
court’s order denying her Welfare and Institutions Code
Du. M. The mother argues it was an
abuse of discretion to deny her section 388 petition seeking reinstatement of
unification services and increased visitations with the child. We affirm the order.
II. BACKGROUND
A. Section 300 Petitions and Detentions
On April
14, 2009, the Los Angeles
County Department of Children and Family Services (the department) filed a
petition pursuant to section 300, subdivisions (b) and (j). The petition alleged the mother failed to
obtain necessary medical treatment for Du. M.’s abdominal mass and
enuresis and the child’s three siblings were at risk. In addition, the petition alleged the home
was found to be in a filthy and unsanitary condition with urine odor, dirty
clothes strewn throughout the home, and dirty dishes. At the time of the detention, Du. M. was
seven years old.
At the April 14, 2009 detention hearing, the children were
removed from the mother’s physical custody.
Du. M.’s half-sister, D.M., was released to the home of her father,
Demirus M. Du. M. and his two
younger siblings, Da. M. and D.T.M., were detained in shelter care with
the department having discretion to detain with any appropriate relative or
non-related extended family member. On April 22, 2009, Du. M. and his
younger siblings were released to their father, Du. M., Sr., on condition
that the father resided with the maternal grandmother.
On May
11, 2009, the department filed a first amended petition. The amended petition added a new count under
section 300, subdivision (b). The
amended petition alleged the mother had a history of alcohol abuse and was a
current alcohol abuser.
On June
26, 2009, the department filed an ex parte application and order to
detain Du. M. and his younger siblings and remove them from the father’s
custody. The June 26, 2009 detention report stated the father
argued with his girlfriend and walked away from the vehicle, leaving his three
children inside the car. The father’s
girlfriend also left the car and did not return until 30 minutes later. The father later was arrested for child
endangerment after he came to the police station to inquire about the
children.
On June
30, 2009, the department filed a second amended petition. The second amended petition added a section
300, subdivision (b) count against the father for leaving the children
unattended in the car for 30 minutes and inadequate care of the children. The second amended petition also alleged the
father medically neglected Du. M. and kept the child out of school for a
week for unknown reasons.
On June
30, 2009, the juvenile court sustained one count as to the mother
under section 300, subdivision (b). The
court found the mother medically neglected Du. M. by failing to obtain
necessary medical treatment for the child’s abdominal mass and enuresis. The mother’s neglect placed the child and his
siblings at risk of physical and emotional harm. The juvenile court later sustained the count
against the father for: inadequate care;
medical neglect of Du. M.; keeping Du. M. out of school for a week
for unknown reasons; and leaving the children unattended in a car for 30
minutes.
On August
6, 2009, the department submitted a supplemental report in advance
of the disposition hearing. The
department reported Du. M. and his younger siblings were in a foster
home. But the current foster mother
wanted the children removed from her home because Da. M. kicked other
children and had set off the fire alarm in the home.
The mother had visited the children just
once since the last hearing. The mother
stated her car broke down after that visit and she could not visit again. Also, the mother had only called the children
once or twice since the last hearing.
The mother just enrolled in counseling and had attended two
sessions. The mother’s alcohol tests had
been clean except for one missed test.
However, the mother had not started parenting classes because she stated
she could not afford to pay for them.
Social worker Shauna Blakely visited the
mother around noon to give her the
case plan. There was no furniture in the
home except for the bunk beds provided by the department. Ms. Blakely had the maternal grandmother
sign the case plan because the mother was sleeping and could not or would not
be awakened. The department believed the
mother was not ready to have the children returned to her custody. She had limited contact with the children,
had just started counseling, missed an alcohol test, and had no furniture in
the home other than the bunk beds.
On September
3, 2009, the department submitted a second supplemental
report. The department reported the
mother’s home currently had more furniture.
The dependency investigator and the social worker brought the mother a
couch and a chest of drawers. In
addition, the mother purchased a king-sized bed. The mother continued to reside with the
maternal grandmother in the apartment.
The department reported the mother was
visiting the children on a regular basis and continuing to attend her
last hearing but the completed tests were clean. The department told the mother it would
recommend return of the children if she enrolled in parenting classes. Ms. Blakely, the social worker, gave the
mother referrals for five low cost and no cost parenting classes. The mother told Ms. Blakely she had
called all five locations but there were no available spots. Ms. Blakely called and found at least
three of the locations had available spots for the mother. At least one location even had child care
available.
B. Disposition on Section 300 Petition
On September
10, 2009, the juvenile court released Du. M. and his younger
siblings to the mother with the maternal grandmother to reside in the
home. The department was ordered to
provide family maintenance services
and family preservation to the family and bus tokens to the parents. The mother was ordered to attend parent
education classes and individual
counseling to address case issues including neglect, anger management and
depression. The juvenile court also
ordered the mother to take the children to all medical appointments and to
cooperate with the children’s school and family preservation.
C. Section 387 Supplemental Petition and Detention
On March
18, 2010, the department filed a section 387 supplemental
petition. The supplemental petition
alleged the mother continued to neglect Du. M.’s medical needs. The mother failed to take the child to a
medical appointment to treat the child’s severe stomach pain. In addition, the mother failed to provide
prescription medicine to Du. M.
The March
18, 2010 detention report indicated the mother was in partial
compliance with the September 10, 2010
orders. The mother was cooperative with family
preservation but had cancelled and rescheduled some appointments. The mother told the family preservation
worker, Melissa Arce, she had started drinking again but not in front of the
children. Ms. Arce reported the children
did not appear happy. She also reported
the mother’s new boyfriend may be living in the home and having a lot of
contact with the children.
The mother admitted she did not take
Du. M. to his medical appointments because she thought the maternal
grandmother would take him. The doctor
prescribed Miralax for Du. M.’s stomach pain but the mother did not get
the drug. After a month,
Ms. Blakely, the social worker, wrote the mother a check so she could get
Miralax for Du. M. On March 9, 2010, the mother called
Ms. Blakely to report that Du. M. did not go to school that day
because he had stomach pain.
Ms. Blakely told the mother to take the child to urgent care or the
emergency room. Ms. Blakely called
the mother the next day to follow up.
The mother stated she did not take Du. M. to urgent care because
they did not “specialize in this problem.â€
Ms. Blakely urged the mother to take Du. M. to the emergency
room. The mother responded she preferred
the department contact the doctor to schedule an appointment for next week
because she was unable to schedule one.
The department reported the children saw a
therapist once a week at school. In
addition, the children saw a psychiatrist monthly. The therapist reported the children seemed
sad at times and worried about their mother.
The school reported Du. M. and his younger sister had missed at
least 15 days of school, four of which were in March. The children’s grades were dropping because
of the school absences. The school asked
the mother to provide a note when the children missed school but she never did
so.
At the March 18, 2010 detention hearing, the juvenile court
detained Du. M. and his younger siblings from the mother. The three children were designated as a
sibling group. The juvenile court ordered
a psychological evaluation of the mother over her objection. The mother was granted unmonitored visits
three times a week, three hours per visit or a total of nine hours per
week.
D. Disposition on Section 387 Petition
The April
29, 2010 jurisdiction/disposition report stated the mother admitted
she had missed medical appointments for Du M.
The mother stated the maternal grandmother did not tell her about the
subsequent appointments and she missed them.
The mother also admitted she did not take Du. M. to the emergency
room as instructed by Ms. Blakely after the child complained about
abdominal pain. The mother stated she
gave Du. M. some milk and Miralax and he was able to go to the bathroom. The child complained bitterly about going to
the emergency room and stated he felt better so the mother decided not to take
him to the emergency room. The mother
reported she took Du. M. for an ultrasound on April 6, 2010 and was waiting for the results.
The report indicated the mother was visiting
the children on the weekends. The mother
visited for about eight hours per day on either Saturday or Sunday. The maternal grandmother reported the mother
was bringing the children back to her home and exposing them to her boyfriend,
Richard Monroe, who had a serious criminal record. The maternal grandmother and all three
children stated Mr. Monroe was hitting the children during their stay and once
blew marijuana smoke at the youngest child’s face. The mother stated she no longer dated Mr.
Monroe but this was not confirmed yet.
The mother indicated she was in the process of moving and all her
belongings were in boxes at her current apartment. The mother had moved at least three times
over the past six months. The department
also reported the mother took $10 from Du. M. that was given to him so he
could purchase lunch. She used the money
to put gas in her car. The department
recommended the visits be changed from unmonitored to monitored visits. In addition, the department recommended
family reunification services be provided to the children and the parents.
E. Interim Review Report and Progress Reports
The August
4, 2010 interim review report stated Du. M. had been placed
with David and Veronica G. The child had
“umbilical cord hernia issues.†He was
receiving individual counseling from a therapist and had been referred for a
psychological and psychiatric evaluation.
The social worker had tried to set up a
meeting with the mother several times but she did not show up. The mother was transient at this time. Also, the parents were informed of all
medical appointments for the children but they had not attended any
appointments. The parents also had not
visited the children.
At the progress hearing on September 3, 2010, the juvenile court ordered: age-appropriate mental health services for
the children; Wraparound services for Du. M.; and individualized education
program requests for Du. M. and Da. M. The department was to inform the court of an
appropriate education rights holder if the mother failed to request educational
and developmental services for the children.
The department was ordered to admonish the mother to not promise the
children they would return home. Also,
the department was to prepare a progress report concerning: the status of the regional center evaluations
of the children; the placement of the children; whether the children had
whether the mother was the appropriate education rights holder; the mental
health services and evaluations each child has had; and the mother’s visits
with the children.
The October
15, 2010 progress report indicated Du. M. remained with David
and Veronica G. He had a mental health
evaluation but the department had not received the results yet. The child continued to have individual
counseling every Monday. The social
worker referred Du. M. to Wraparound services. As for an individualized education program
for Du. M., the assistant principal informed the social worker she did not
think he would qualify for the program.
Du. M. was academically in the proper grade level. The child saw his younger brother on a
regular basis because his foster parents operated a daycare that the younger
brother attended.
The department reported the mother had not
visited her children for several months.
The mother continued to miss her appointments with the social
worker. The mother was transient and did
not have an address. The department
recommended the court appoint an educational rights holder for the three
children.
The November
16, 2010 progress report stated Du. M. remained with David and
Veronica G. Psychologist Luz E. Vulgaris
diagnosed the child as a victim of neglect and physical abuse. Du. M. had disruptive behavior disorder,
attention deficit/hyperactivity disorder, Tourette’s disorder, enuresis and
encopresis. The child wore diapers
because he urinated and defecated in his pants daily. Du. M. tended to hide under the table
when eating at home and at restaurants and slept under his bed. He told his foster parents he did these
things because he was afraid of the noises he heard. He functioned within the average range of
cognitive abilities and he was at grade level in reading, spelling and arithmetic
skill. The child was on the waiting list
for Wraparound services. In addition, he
was receiving individual counseling every Monday.
The department reported the mother had made
little progress towards the case plan goals.
The mother had not seen the children in several months. She called the children by phone
sporadically. She made appointments with
the social worker but failed to show up.
The mother agreed to stop telling the children that they would be
returning home in December.
F. Six-Month Review
The December
16, 2010 status review report indicated Du. M. remained with
David and Veronica G. The child started
receiving weekly Wraparound services on November 23, 2010.
In addition, he was receiving mental health services including
psychiatric services.
The department reported the mother had made
little progress in reunifying with her children. The mother had yet to meet with the
department social worker. During a
period of over seven months, the social worker tried to set up appointments
with the mother several times. The
mother did not show up and never called to cancel the appointments. The mother had an Evidence Code section 730
evaluation done and was diagnosed with bipolar disorder.
Also, the mother still had not visited the
children. However, the mother had called
the children more often lately. The
calls were very short. The mother told
the children she would get them back in December and promised to buy them video
games. The mother denied she had made
any promises to the children.
The mother was provided mental health and
parenting class referrals. But the
mother had not provided any proof she was complying with court orders by
participating in counseling or parenting classes. The mother reported she was transient and did
not have a place to stay. The department
recommended termination of family reunification services. On February
7, 2011, the juvenile court terminated reunification services for
the mother. The mother was granted
monitored visits, at least once a month for at least one hour per visit.
The May
6, 2011 report from Du. M.’s Court Appointed Special Advocate,
Celeste Vos, (CASA) indicated the child continued to reside with David and
Veronica G. The child stated he did not
really like living with the foster parents because there were so many children
living in the house as well as more children who came for daycare. He wanted to live in a house that “was a
little more quiet.â€
G. July
22, 2011 Reports, Hearing and Section 388 Petition
The July
22, 2011 section 366.26 report indicated Du. M. remained with
David and Veronica G., his prospective legal guardians. He called his foster parents, “mom and
dad.†Du. M. continued to have
problems wetting the bed. The foster
parents reported he was very stubborn at times.
Du. M. reported feeling special when he celebrated his birthday
with his foster family and members from the church.
The mother failed to comply with court
orders to randomly drug test, participate in parent education classes, and
attend individual counseling. In
addition, the mother did not take her prescribed medication or comply with
psychiatric recommendations. Also, the
mother had not participated in the children’s medical appointments or
cooperated with the children’s school.
The mother had only visited Du. M. and
his younger brother twice in over one year.
Du. M. did not seem attached to the mother. He did not cry for her or hug her. When the mother told Du. M. he would be
going back to her, he smiled but did not say very much to her. The mother continued to promise Du. M.
that he would be going back home and she would buy him video games and
toys. The foster care agency attempted
to schedule visits between the children and the mother for the second Friday of
each month but the mother never called to confirm the visits. The mother called the children sporadically
and continued to promise them video games and toys. She also told the children they would be
going back home with her at the next court hearing. At times, the mother called the foster
parents and cursed and yelled at them.
The July
22, 2011 CASA report stated Du. M. continued to reside with
his foster parents, David and Veronica G.
The child stated he was excited to attend a summer camp for four days in
July. He was excited to finish the third
grade. Du. M. stated he enjoyed
living with his foster family. His
foster parents reported he was taking his medicine but still acted out. Du. M. lied and broke the television in
the playroom. He was book smart but
socially immature. The child was
enrolled in the Boys and Girls Club for the summer and would attend camp in
July. Du. M. felt a connection with
his foster family but he understood it was a temporary situation, which stressed
him and affected his behavior.
At the July 22, 2011 section 366.26 hearing,
the mother filed a section 388 petition seeking reinstatement of family
reunification services and modification of monitored visits to four times per
month. In the section 388 petition, the
mother stated she was receiving psychiatric and counseling services and taking
medication for her bipolar disorder. The
attached July 19, 2011
letter from the South Central Health and Rehabilitation Program indicated the
mother had met her case manager four times since her enrollment. The mother began psychotherapy on July 14, 2011 and had been supplied
with medication for her mental illness.
The juvenile court granted a hearing on the mother’s section 388
petition and continued the section 366.26 hearing to September 23, 2011. The department was ordered to prepare reports
for the section 388 petition and the section 366.26 hearing.
H. September
23, 2011 Reports and Hearing
The September
23, 2011 supplemental report indicated Du. M. continued to
reside with his foster parents. The
department noted it took the mother more than a year to comply with the May 8, 2009 order requiring her to
attend counseling. The mother had
attended only one psychotherapy session on July 14, 2011. The
mother just started addressing her mental health issues with a case manager
four times since June 10, 2011. The mother was still transient. She did not complete the parenting classes
and was not drug testing.
The mother had only visited Du. M. three
times: December 20, 2010, June 25, 2011 and September
2, 2011. The mother
continued to be inappropriate during the visits. She told the children they would be moving
back home with her and promised them video games. The mother also told the children not to
listen to their caregivers. The mother
made false promises to Du. M. during her sporadic calls and had been
disruptive while talking to his foster parents.
During the visits, the mother hugged Du. M. and his younger brother
and cried hysterically, which made the children cry with her. After the visits, the children showed signs
of stress, becoming more irritable and easily upset. The children also began hoarding food after
the visits.
The department recommended the alternative
plan for Du. M. was legal guardianship with his foster parents. The child had been with the foster parents
for over a year. The foster parents had
provided Du. M. with a loving home and met his physical and mental health
needs.
The September
23, 2011 status review report also recommended Du. M.’s foster
parents become his legal guardians.
Du. M. was doing well at school and enjoyed attending his youth
group every week. His behavior at home
had improved but he still had behavioral and bedwetting problems. Du. M. was hoarding food which the
therapist indicated was a manifestation of his fear of going without it. He continued to receive therapy and worked
with his Wraparound team.
The maternal grandmother stated the mother
did not live with her. This statement
contradicted the mother’s statement that she resided with the maternal
grandmother. The maternal grandmother
reported the mother had always been wild.
When the mother was 12 years old, she would not listen to the maternal
grandmother and refused to attend school.
The mother was placed in foster care and returned to the maternal
grandmother when she was 14 years old.
The mother did not graduate from high school and continued to be
wild. The maternal grandmother stated
the mother was a good mother and had not done anything wrong. She believed the mother might go crazy if the
children were not returned to her.
The attached September 7, 2011 letter from Du. M.’s therapist
reported the child was bedwetting, hoarding, and had problems with stealing and
lying. The therapist was working with
Du. M.’s foster parents “towards helping [the child] build more trusting
relationships with them through the use of unconditional love, and consistency
and predictability, along with flexible structure.†The therapist reported: “[Mr. and Mrs. G.] continue to show
commitment to helping [the child] overcome his problems and building healthy
family relationships. They remain
willing to collaborate with [the child’s] various service providers.â€
At the September 23, 2011 hearing, the juvenile court continued
the matter to December 6, 2011
for a contested section 388 hearing, with a section 366.26 hearing to
follow.
I. December
6, 2011 Report and Hearing
The December
6, 2011 interim review report indicated Du. M. remained with
his foster parents. The foster parents
were working with the child to control his hoarding, bedwetting, stealing and
anger problems. The mother had visited
Du. M. only four times in over one year.
The mother stopped going to therapy at South Central Health and
Rehabilitation. She told the department
social worker she stopped going there because the place was for drug addicts
and had case managers, not counselors.
The mother reported she did not have a doctor but still had some
medication left.
The department social worker confirmed the
mother had just started counseling at People Who Care Youth Center. The mother’s counselor stated the mother was
supposed to attend once a week but her attendance was inconsistent. She had attended five individual counseling
sessions. Because of her sporadic
attendance, the mother had been unable to make progress towards goals or any
other issues. The mother informed the
counselor she was on medication but the counselor did not know who prescribed
the mother medication. The department
continued to recommend legal guardianship for Du. M.
At the contested section 388 hearing on December 6, 2011, the mother
testified she had completed 10 weeks of parenting classes. In addition, she was attending weekly
individual counseling. But the mother
explained her attendance was sporadic because she had transportation
problems. The mother had not refilled
her prescription medication because she did not have medical insurance. After testimony and oral argument, the
juvenile court denied the mother’s section 388 request for further family
reunifications services. The juvenile
court continued the section 366.26 hearing to February 2, 2012.
J. February
2, 2012 Report and Hearing
The February
2, 2012 interim review report stated Du. M. remained with his
foster parents. The child continued to
receive counseling to address his anger, bedwetting and stealing issues. His foster parents continued to be committed
to helping him overcome his problems.
The department also reported on its efforts
to help the mother with visitation. The
department social worker dropped off the mother’s bus pass at her home when the
mother complained she could not get to the office. On December
19, 2011, the department social worker called the mother to
schedule a visit between her and the children.
The mother was notified all three children would be at the department’s San
Fernando Valley office two days later, on Wednesday. The mother responded she was unavailable
every Wednesday. The department social
worker then tried to schedule a visit between the mother and Du. M. and
his younger brother for the next day. The
mother stated she could not make the visit on one day’s notice. Another visit between the mother and
Du. M. and his younger brother was scheduled for January 30, 2012.
Six days before the scheduled visit, the mother was notified the visit
location would be 10 miles from her home.
The mother stated the location was too far away for her to visit the
children.
At the contested section 366.26 hearing,
the juvenile court terminated parental rights over the youngest child,
D.T.M. The matter was continued for
appointment of a legal guardian for Du. M. at the request of the
department. Later, the mother appealed
from the order terminating her parental rights over the youngest child. The case was returned to the juvenile court
on July 25, 2012 after this
court reversed and remanded the matter for the limited purpose of complying
with the Indian Child Welfare Act (ICWA).
The juvenile court reinstated parental rights and made orders to comply
with ICWA’s notice requirements.
K. August
2, 2012 Reports and Hearing
The August
2, 2012 CASA report stated Du. M. continued to enjoy living
with his foster family. He did not know
when he last saw the mother. He enjoyed
visits with his siblings but did not “want to see [his] real mom anymore.†His foster parents reported he had a visit
with the mother in May and was very upset after the visit.
The August
2, 2012 status review report indicated Du. M. was now 10 years
old. He still wore diapers at night for
his enuresis. His foster parents
reported Du. M. lied, lost his homework in school, and tore and scratched
the car seat. They stated Du. M.
stole items from stores during shopping trips.
In addition, the child would spread feces on the wall after he had a
bowel movement and still needed help with self-cleaning. His foster mother stated, “I feel [the child] is very disturbed
emotionally, however in school he is great[.]â€
Du. M. informed his therapist he did not like seeing his mother
because she always cried during the visits.
The department reported the one visit between the mother and Du. M.
had gone well. Du. M. was assigned
a secondary case worker to help search for family or friends that could form a
lifelong connection with the child.
At the August 2, 2012 hearing, the matter was continued to September 19, 2012 pending the ICWA
findings. On August 17, 2012, the juvenile court vacated the September 19, 2012 hearing date and
continued the hearing to September 28,
2012.
L. September
28, 2012 and October 5,
2012 Reports and Hearing
The September
28, 2012 CASA report stated Du. M. loved living with his
foster family and did not want to leave.
He enjoyed fifth grade and his afterschool program. The child did not want to see the mother but
enjoyed the sibling visits. CASA
recommended legal guardianship for Du. M. with his foster parents and
visitations with the mother be in a therapeutic setting.
The department’s September 28, 2012 interim review report
indicated Du. M.’s foster mother had agreed to be his legal guardian once
the D-rate funding was in place.
Du. M. reported he liked living with his foster family and appeared
very attached to them. His therapist
reported she and the foster mother were working with Du. M. on his
stealing problem.
At the September 28, 2012 hearing, the trial court continued the
section 366.26 hearing because the department had not received a response from
an Indian tribe and the Bureau of Indian Affairs concerning the ICWA
notice.
On October 5, 2012, the department
reported Du. M. was approved for D-rate funding in its last minute
information for the court filing. The
child’s foster mother indicated she was now willing to sign paperwork to be his
legal guardian. That same day, the
juvenile court ordered legal guardianship as the appropriate permanent plan for
Du. M.
M. Mother’s Section 388 Petition and Hearing
On October
9, 2012, the mother filed another section 388 petition. The mother requested reinstatement of
reunification services and increased visitation with her children. The mother stated she was receiving mental
health services and taking medication for depression and bipolar disorder. The mother attached the following: a letter from Hillsides indicating the mother
now visited Du. M.’s younger sister once a week; completion certificates
for a three-hour domestic violence class and 20 hours of parenting training;
the mother’s school transcript; and print-outs of the mother’s three counseling
appointments at Kendren Avalon
Mental Health Center. The juvenile court granted a hearing on the
mother’s section 388 petition.
On October 23, 2012, the department
responded to the mother’s section 388 petition in advance of the November 26,
2012 hearing. The mother informed the
department she did not have a residence but was staying at various friends’
homes. The mother was participating in
mental health and family focused wellness services through the Kendren Avalon
Mental Health Center. She was seeing a
therapist twice a month. In addition,
the mother saw a psychiatrist on a regular basis and was taking medication for
schizophrenia, depression and bipolar disorder.
The mother indicated she was looking for additional counseling services
in the Los Angeles area. She also was
working with a parent partner, Ms. Denisha Evans, at Hillsides, where her
daughter, Da. M., had been placed by the department.
Ms. Evans stated she saw the mother once a
week and spoke to her daily. She was
looking for specialized housing for the mother through the Department of Mental
Health. Ms. Evans stated the mother
currently received only $200 per month and general relief services. She reported the mother was trying to
consistently participate in psychological and psychiatric services and was
taking medication, but the mother continued to have “her ups and downs.†Ms. Evan thought unmonitored visits with
Da. M. would be appropriate but recommended the mother have additional
monitored visits with Du. M. before visitation was liberalized. Ms. Evans also indicated the mother should
participate in random drug testing before any liberalization of the
visits.
The department reported the mother now was
visiting Du. M. and Da. M. regularly.
The mother visited Du. M. once a month. The department social worker was working with
the mother and Du. M.’s foster parents to resolve their conflicts. Du. M. had some resentments about his
current living situation and the visits with the mother had not gone as
smoothly compared with the mother’s visits with his sister, Da. M. The department social worker believed the
mother should have monitored visits with Du. M. and should be drug testing
before liberalization of her visits with the child. The social worker was not opposed to the
mother receiving more reunification services because Du. M. continued to
have problems at his current placement and Da. M. was very closely bonded
with the mother. However, the department
noted the mother did not have stable housing and she had just started to comply
with court orders made almost two-and-a-half years before. The department recommended denial of the
mother’s section 388 petition. But if
the mother’s family reunification services were reinstated, the department
believed the mother should continue to take her medication, participate in
psychiatric and psychological services and undergo random drug testing.
In the November 26, 2012 information for the
court officer, the department reported Du. M.’s foster mother would
receive D-rate funding once she was named as the child’s legal guardian. The department also stated Du. M. and
the mother had a visit at a local park on November 6, 2012 that went well. The child and the mother looked forward to
their next monthly scheduled visit.
On November 26, 2012, the juvenile court
received into evidence the department’s November 26, 2012 report and heard
argument on the mother’s section 388 petition.
The children’s counsel requested the court deny the mother’s section 388
petition as to Du. M. but grant the petition as to Da. M. The department’s counsel argued it was
premature to grant the mother’s section 388 petition because she was not yet drug
testing. After argument, the juvenile
court denied the section 388 request as to Du. M. The court explained the child had been with
his placement for some time and his caregiver was willing be his legal
guardian. The juvenile court granted the
mother’s petition as to Da. M., giving the mother six months of
reunification services.
The juvenile court found legal guardianship
was in Du. M.’s best interest and appointed Veronica G. to be his legal
guardian. The mother was granted one
hour monthly monitored visits with Du. M., to be arranged with the legal
guardian. The mother filed her notice of
appeal that same day.
>
III. DISCUSSION
A. Section 388 Petition
Section 388, subdivision (a)(1) provides in
part: “Any parent or other person having
an interest in a child who is a dependent of the juvenile
court . . . may, upon grounds of change of circumstance or
new evidence, petition the court . . . for a hearing to
change, modify, or set aside any order of the court previously made or to terminate
the jurisdiction of the court. The
petition shall be verified and . . . shall state the
petitioner’s relationship to or interest in the
child . . . and shall set forth in concise language any
change of circumstance or new evidence that is alleged to require the change of
order or termination of jurisdiction.â€
The moving party has the burden of showing “by a preponderance of the
evidence that there is new evidence or that there are changed circumstances
that make a change of placement in the best interest of the child.†(In re
Stephanie M. (1994) 7 Cal.4th 295, 317; In
re Marilyn H. (1993) 5 Cal.4th 295, 309.)
The changed circumstances must be viewed in the context of the
dependency proceedings as a whole. (
307; In re D.R. (2011) 193
Cal.App.4th 1494, 1512.) “After
termination of reunification services, the parents’ interest in the care,
custody and companionship of the child are no longer paramount. Rather, at this point ‘the focus shifts to
the needs of the child for permanency and stability [citation], and in fact,
there is a rebuttable presumption that continued foster care is in the best
interest of the child.’
[Citation.]†(
p. 317; In re Marilyn H., supra, 5 Cal.4th
at pp. 302, 309; In re D.R., supra,
193 Cal.App.4th at p. 1512.)
We review a denial of a section 388 petition
for abuse of discretion. (
pp. 316, 318; In re B.C. (2011) 192
Cal.App.4th 129, 141; In re Angel B. (2002)
97 Cal.App.4th 454, 460.) “‘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.’ [Citations.]â€
(In re Stephanie M., supra, 7
Cal.4th at p. 318, quoting Walker v.
Superior Court (1991) 53 Cal.3d 257, 272.)
We find the juvenile court did not abuse its
discretion in denying the mother’s section 388 petition. The mother failed to show that it was in
Du. M.’s best interest to modify the order terminating her reunification
services and increasing her visitations.
Du. M. and his siblings were first removed from the mother in April
2009 because of her medical neglect of Du. M. The mother regained custody on September 10,
2009 but the children were removed again on March 18, 2010 because of the
mother’s neglect of Du. M.’s medical needs. Since then, Du. M. has remained out of
the mother’s care.
Furthermore, the mother only recently
complied with court orders made in September 2009 and May 2010. On September 10, 2009, the juvenile court
ordered the mother to participate in individual counseling to address mental
and emotional health issues and to attend parenting classes. In addition, the mother was ordered to
cooperate with family preservation and the children’s school, and take the
children to all medical appointments. On
May 11, 2010, the juvenile court ordered the mother to do weekly random alcohol
testing. The juvenile court terminated
family reunification services for the mother on February 7, 2011 because of the
mother’s minimal compliance. It took the
mother more than three years to address her mental health issues by seeing a therapist
and psychiatrist at Kedren Avalon Mental Health Services and working with a
parent partner at Hillsides. Although
the mother was trying to consistently participate in psychological and
psychiatric services and was taking medication, she continued to have “her ups
and downs.†Moreover, before receiving
services from Kedren Avalon Mental Health Services, the mother had started many
different counseling services only to later abandon them.
In addition, the mother failed to visit
Du. M. for long periods of time and called him infrequently. The September 23, 2011 supplemental report
indicated the mother had visited Du. M. only three times in over a
year. By December 2011, the mother had
visited Du. M. only once since September 2011. The mother did not begin regular monthly
visits with Du. M. until recently.
Although Du. M.’s last visit with the mother went well, the child
also has told CASA he did not want to see the mother anymore. In addition, after visits with the mother,
the child’s behavior would worsen and he sometimes became very upset. Furthermore, the mother was inappropriate
during the visits and calls. She told
the children not to listen to the caregivers and promised they would be moving
back home with her.
Moreover, the mother did not seem aware of
her children’s medical and mental health needs.
In the December 6, 2011 interim report, the department reported the
mother questioned the need for her children to be on medication. She also failed to attend any of
Du. M.’s medical or school appointments.
Furthermore, CASA was appointed to be Du. M.’s education rights
holder because the mother failed to request educational and developmental
services for him.
Although the department social worker
indicated Du. M. had some resentment about living with the legal guardian,
Mrs. G., and her family, he also stated he liked living with them. The child had been placed with Mr. and Mrs.
G. since April 2010 and called them “mom and dad.†The department reported Du. M. appeared
attached to Mr. and Mrs. G and their family.
Also, Mr. and Mrs. G. were committed to helping Du. M. control his
hoarding, bedwetting, stealing, and anger problems. It was in Du. M.’s best interest to
provide him with stability and permanence by denying the mother’s request for
reinstatement of reunification services and appointing Mrs. G as his legal guardian.
IV. DISPOSITION
We affirm the juvenile court’s November 26,
2012 order denying the mother’s section 388 petition.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
O’NEILL,
J.
We concur:
TURNER,
P. J.
KRIEGLER,
J.
and Institutions Code unless otherwise specified.
name="_ftn2" title="">* Judge of the Ventura County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
