In re J.P.

Filed 3/23/07 In re J.P. CA4/1]

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Gary M. Bubis, Juvenile Court Referee. Affirmed.

S.P. (S.) appeals a court order denying her Welfare and Institutions Code section 388^[1]petition for modification seeking to receive further reunification services with her minor daughters, J.P (J.) and L.P. (L.) (the minors). We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Twins J. and L. were born in February 2003. About two years later, the San Diego County Health and Human Services Agency (Agency) filed petitions in juvenile court on behalf of the minors under section 300, subdivision (b). The petitions alleged L. suffered from an eye laceration after being exposed to violent confrontations in the family home. The Agency's detention report stated that police officers responded to a domestic disturbance at the minors' home. Julian,^[2]the minors' father, told officers he and his brother-in-law had been arguing. Julian explained that L. injured her eye because she accidentally pulled the cord of the Xbox video game console, causing it to fall on her. However, when the officers questioned S. about the incident, she shared a conflicting account as to how the injury occurred. S. claimed she was arguing with Julian when she pushed the Xbox off of the television in an attempt to hit Julian. The officers arrested S. for cruelty to a child.

According to the social worker, the parents had a history of domestic violence. The disturbance alleged was the second referral for S. and Julian. The first incident involved a confrontation between S. and Julian and resulted in S. suffering abrasions to her face. S. met with the social worker and initially denied her history of domestic violence. S. later admitted she hit Julian before and that he would sometimes hit her for no reason. When asked where the minors were during their confrontations, Julian claimed the minors were asleep. The social worker believed S. and Julian did not understand the effects the domestic violence had on the minors and recommended the minors be detained. In addition, the minors were too young to protect themselves from further incidents that may arise.

At the detention hearing, S. submitted on the petitions, which the court sustained as amended. The court found a prima facie showing had been made on the allegations of the petition, detained the minors, and ordered S. to comply with her case plan. The case plan required S. to enroll in domestic violence classes, participate in individual counseling and a parenting class, and submit to a psychological evaluation.

In the jurisdiction and disposition reports, the social worker emphasized that both S. and Julian had previous arrests for battery and spousal abuse on more than one occasion. The social worker reported S. failed to understand that hitting or throwing objects at Julian was considered domestic violence. S. continued to insist she and Julian did not have domestic violence problems. She believed she did not require domestic violence counseling because she had participated in classes before. The social worker recommended S. participate in domestic violence classes before the minors could return to her care.

At the jurisdiction and disposition hearing, the court made true findings on the petitions by clear and convincing evidence, declared the minors dependents, and removed them from S.'s custody. The court ordered S. to comply with the provisions of her case plan, including a psychological evaluation and therapy.

During the next six months, S. made minimal progress with therapy. The therapist reported S. may be suffering from cognitive deficits, making it difficult for her to retain information learned from therapy. Further, S. continued to deny engaging in domestic violence. The social worker reported S. was incarcerated for driving under the influence (DUI). S. did not initially disclose her arrest to the Agency or to her therapist. When questioned about the arrest, S. claimed she was a passenger and not the driver. She admitted she was arguing with Julian before her arrest. The social worker noted S. attempted to hide the fact she was arguing with Julian upon her arrest, reaffirming that she had not accepted responsibility for her past actions. The social worker believed it was not possible to reunify the minors with S. and recommended an additional six months of services.

The court held a six-month review hearing in October 2005. The Agency submitted an addendum report changing its recommendation. The new recommendation was to terminate services and set a section 366.26 selection and implementation hearing. S.'s psychological evaluation indicated her intellectual functioning was below average. S. had made minimal progress with services, denied she had an alcohol problem, and remained at risk for domestic violence. The ongoing and unaddressed problems brought into question S.'s ability to safely parent the minors.

At the contested six-month review hearing, the court found S. had not made substantive progress with her case plan and returning the minors to her care would create a substantial risk of detriment to them. The court scheduled a section 366.26 hearing.^[3]

In an assessment report dated February 2006, the social worker recommended parental rights be terminated. S. regularly visited the minors and the social worker noted the minors had some attachment to S. However, the social worker believed the relationship was not a true parent-child relationship and interaction was not always beneficial. The minors frequently would regress after visits by acting out or suffering from toilet training setbacks. The minors initially suffered from significant developmental delays but had since made significant progress after being placed with their caregivers. The minors were attached to their current caregivers and referred to them as "mommy" and "daddy." In the event the caregivers were unable to adopt the minors, there were 32 other families willing to adopt twins with similar characteristics.

In March 2006 S. filed a section 388 modification petition seeking to have the minors returned to her custody, or alternatively, for further reunification services.^[4] S. alleged that as changed circumstances, she had completed a parenting class, voluntarily entered into a substance abuse program, and was attending a domestic violence treatment program. S. alleged as to the minors' best interests that she had remained committed to her sobriety and succeeded in modifying the behaviors that led to the minors' dependency.

At a subsequent court hearing, the court denied the section 388 petition in its entirety, finding S. had only recently started pursuing services and her recent separation from Julian was not mentioned in the petition. The court then revised its ruling and ordered a hearing on the petition would go forward to address the issue of whether S. should receive additional services through the 18-month review hearing scheduled to take place in five months. The court set a contested hearing on the section 388 petition in May 2006. The hearing was later continued to July 2006.

Therapist Dr. Bruce Figuered testified at the July 2006 section 388 hearing. He believed S. was making progress and learning to take responsibility for her past actions. Dr. Figuered did not have sufficient information on S.'s relationship with Julian to make an assessment about her propensity toward future abuse. He was unable to fully address the domestic violence issue with S. because she did not discuss her relationship with Julian. Dr. Figuered believed S. would benefit from continued therapy in an effort to reduce the risk of future violence.

S.'s recovery counselor testified S. participated in a recovery program and successfully completed it. She had submitted to seven drug tests and tested negative each time. The counselor also testified S. continued to attend meetings through N.A. or A.A. The counselor did not know if S. was involved in an after-care program or if she had a sponsor.

Throughout the dependency, S. participated in supervised visits with the minors. The visitation monitor testified at the hearing as to her observations of these visits. The monitor noted that S. behaved inappropriately at times during visits. One month before the hearing, S. became angry with the monitor and started using profanities in front of the minors. The monitor immediately terminated the visit, stating S.'s actions were inappropriate. In addition to the monitor's testimony, the court considered the Agency's addendum report. The social worker indicated S. continued to exhibit difficulty managing her anger and showed lack of control when asked to follow directions. S. also struggled with her own developmental difficulties. The social worker believed the risk of future harm was high because S. had not acknowledged the problems she faced.

After considering the evidence, the court found that S. had not met her burden to show changed circumstances or that additional services were in the minors' best

interests. The court denied the section 388 petition. S. filed a timely notice of appeal.

DISCUSSION

I

S. argues the court erred by denying her section 388 modification petition seeking further reunification services. She asserts she showed circumstances had changed and the minors' best interests required granting the modification petition.

A

Under section 388 a parent may petition the court to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that there is a change in circumstances or new evidence, and the proposed change is in the child's best interests. ( 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) Whether a previous order should be modified and a change would be in the child's best interests are questions within the sound discretion of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Michael B. (1992) 8 Cal.App.4th 1698, 1704.) When two or more inferences reasonably can be deduced from the facts, we have no authority to substitute our decision for that of the trial court. (In re Stephanie M., supra, 7 Cal.4th at p. 319.) The juvenile court's order will not be disturbed on appeal unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. (Id. at p. 318.)

When the court evaluates the appropriate placement for a child after reunification services have been terminated, its sole task is to determine the child's best interests. (In re Stephanie M.,supra, 7 Cal.4th at p. 320.) In this context, the goal is to assure the child "stability and continuity." (Id. at p. 317.) The need for stability and continuity " 'will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.' [Citation.]" (Ibid.) Thus, after the court terminates reunification services, "there is a rebuttable presumption that continued foster care is in the best interests of the child." (Ibid.)

B

In support of her petition S. claimed circumstances had changed after the court terminated reunification services because she was attending domestic violence treatment, had completed a parenting class, and entered a substance abuse program. Admittedly, S. completed the substance abuse program and did not test positive for drug use during the program's duration. However, throughout the reunification period, S. made minimal progress with domestic violence counseling. Although S. was enrolled in a domestic violence program at the time of the hearing, she had yet to complete it and show she had learned from it. She continued to have problems with anger management as recently as one month before the hearing. She also continued to exhibit control issues during visits with Julian and the visitation monitor. Dr. Bruce Figuered recognized S. had made progress in therapy, but he did not have sufficient information to make an assessment as to S.'s propensity for future violence. The therapist opined S. would benefit from continued therapy in an effort to reduce the risk of future abuse. S. also remained in denial about her alcohol problem following her DUI arrest, although she continued to participate in 12-step meetings. S.'s circumstances may have been "changing" but they had not changed sufficiently to warrant returning the minors to her custody. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610; see In re Casey D. (1999) 70 Cal.App.4th 38, 48.) A petition that alleges merely changing circumstances does not promote stability for the child or the child's best interests because it would mean delaying the selection of a permanent home to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point. (In re Casey D., supra, at p. 47.) "Childhood does not wait for the parent to become adequate." (In re Marilyn H. (1993) 5 Cal.4th 295, 310.)

Even had S. shown changed circumstances, she did not show providing further reunification services was in the minors' best interests. At the time of the hearing, the focus of the proceedings had shifted from family preservation to providing the minors with a safe and stable home. (See In re Marilyn H., supra, 5 Cal.4th at p. 309.) The problems that led to the dependency were serious. The minors had been subjected to domestic disturbances in the home and during one of the incidents, L. suffered an injury. S. had not completed her domestic violence program and continued to suffer from anger management problems. The 18-month review hearing was set for one month after the section 388 hearing. S. had not progressed to unsupervised visits. The visits did not appear to benefit the minors because they would regress after every visit. Further, the minors were significantly attached to their caregivers and benefiting from the stability in the home. In the social worker's opinion, it would cause the minors significant trauma to remove them from their caregivers' home. The court properly evaluated the evidence presented at the section 388 hearing in light of the minors' need for stability and continuity (In re Stephanie M., supra, 7 Cal.4th at p. 317), and found the minors' best interests would not be served by ordering further reunification services. The court acted well within its discretion by denying S.'s section 388 petition. (In re Stephanie M., supra, at pp. 318-319.)

DISPOSITION

The order is affirmed.

HALLER, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.

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^[1] All statutory references are to the Welfare and Institutions Code.

^[2] Julian is not a party to this appeal.

^[3] S. filed a Notice of Intent to File Petition for Extraordinary Writ. This court denied the petition in a nonpublished opinion issued on February 14, 2006 (D047443).

^[4] Julian also filed a section 388 petition seeking to have the minors returned to his custody, or alternatively, for further reunification services. The court found Julian satisfied his burden on the petition and granted him additional reunification services with the minors.