In re M.

Filed 7/24/07 In re M. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Zeke D. Zeidler, Judge. Affirmed.

Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.

This is an appeal from an order made pursuant to a Welfare and Institutions Code section 388 petition, terminating contact between appellant Billy H. and his son M. (born October 1998). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant and Tracey S. (Mother) are the parents of M., As. (born April 1992), K. (born July 1993), M. H. (born September 1994),[1] E. (born July 1995), and Ad. (born July 1996). Appellant and Mother were married in 1999 and separated in October 2001. Appellant filed an earlier appeal of an order issued April 4, 2006, terminating his parental rights as to M. H., and we filed an opinion in December 2006, case number B190395 (the M. H. appeal). The following recitation of facts is taken from that opinion:

After the Department [of Children and Family Services] received numerous reports that Mother had hit the children and attempted to drown some of them and that appellant had whipped the children with a belt, it filed a dependency petition on behalf of the six children in September 2001. Four counts of the petition (pursuant to Welf. & Inst. Code,  300, subds. (a) and (b) [fn. omitted]) were sustained in December 2001. Appellant was ordered to attend classes in domestic violence, parenting, anger management, and gambling. The children were all placed in foster care.

Appellant had consistent monitored visits with the children in 2002. He complied with his case plan and progressed to unmonitored visits in August 2002.

In July 2003, the social worker reported that appellant had been visiting the children on Sundays, but on April 13, 2003, appellant allegedly hit M. H. in the eye. Appellant denied hitting M. H., but admitted that he left the children with Mother, with the knowledge that she was not to have the children in her care at any time. Due to this incident, the court ordered that appellants visits be monitored.

Appellant continued to visit his children consistently and M. H. enjoyed playing with his siblings during the visits.

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During the first three months of 2004, appellant continued to have monitored visits with his children, although he missed several visits due to employment obligations. In April, appellant began having unmonitored visits with M. H., As., K., E., and M. every other week for eight hours.

In May 2005, Ad., As., and K. alleged that appellant had sexually abused them. As a result of the allegations, all of appellants visits were again monitored. The Department filed a section 342 petition in October 2005, alleging sexual abuse by appellant and the childrens paternal grandfather. The court heard evidence on the petition in November 2005. The court found the sexual abuse allegations true as to appellant and the grandfather, ordered appellant not to contact Ad., As., and K., and ordered monitored visitation only with the other children. (In re M. H. (Dec. 19, 2006, B190395) [nonpub. opn. at pp. 2-3].)

The following additional facts occurred with respect to M. during the pendency of these proceedings. On September 22, 2004, a Welfare and Institutions Code section 388[2] petition was filed based upon allegations that appellant had physically harmed M. The petition was later withdrawn. On May 27, 2005, another section 388 petition was filed, based upon the allegations of sexual abuse as to M.s female siblings. Attached to the petition was a May 2005 letter from M.s therapist, Jesus Parra, and also signed by Jasenka Roje, senior director of childrens mental health, both of the Childrens Institute International (CII). The letter indicated that M. was hyperactive, impulsive, and aggressive, and exhibited an increase in disruptive behaviors when visitation resumed with appellant. It also noted that in April 2005, M. had been picking the skin off his fingers. The therapist expressed serious concerns about reunifying M. with appellant.

The court granted the section 388 petition on August 16, 2005, and ordered monitored visits with M. and appellant at the Departments office.

In the report filed for a March 13, 2006 post permanent plan review hearing, the social worker indicated that M. was in third grade in the special education program but could barely write his name, and could not recognize letters of the alphabet or numbers above 20. He was diagnosed with ADHD, hyperactivity, and impulsivity. M. was taking psychotropic medications and attended therapy twice a week. Appellant had monitored visits with M. and his brother M. H. Appellant was no longer allowed to visit his female children. The social worker noted that M. continued to mutilate himself and bite off his skin. When M. returned from visits with his parents he would bite his fingers until they bled, and write on the walls with his blood. The social worker reported that M. was afraid of water because his mother tried to drown him in the past. M. and Ad. were residing with their legal guardians A.P. and her mother M.G., who wished to adopt them.

The record reflects that a progress hearing was held on July 17, 2006, but no report was received as to M.

In a status review report prepared for a September 11, 2006 hearing, the social worker stated that M. and Ad. continued to reside with their legal guardians and that they were in the process of being adopted by them. The children appeared to be well bonded and attached to A.P. M. appeared to seek appropriate affection from A.P. and enjoyed being in her company. M. was doing well in school, enjoyed it, and had a lot of friends, indicating an ability to form secure and healthy attachments. His therapist reported that M. was making significant progress and was able to recognize letters and sounds. The report indicated that Mother had not visited M. and Ad. in over a year, but the report did not address appellants visits.

On September 11, 2006, M.s attorney filed a petition pursuant to section 388, requesting that the court terminate visitation rights as to both Mother and Father. In the section of the form petition alleging changes of circumstances, reference was made to an attached letter from three CII employees, Mona Gullickson, Jesus Parra, and Jasenka Roje, dated August 21, 2006 (the August 2006 letter). The letter stated that Ad.s behavior was declining during the time she was in contact with her biological parents. The letter also contained a section on M., stating that he exhibited regressive behaviors and an increase in disruptive behaviors during visitations with his biological parents. Some of these behaviors included picking and biting the skin of his fingers, increased tantrums (i.e., whining, crying), decreased ability to follow directions, inability to stay on task, and increased annoyance of his sibling and foster siblings in the home. [] Since then, M[.] has made significant progress in his functioning. The letter also contained a section regarding the treatment teams concerns regarding parental visitations. It stated, In the case of M[.] and Ad[.] it has been observed that both children, either in anticipation or after contact with their biological parent(s), exhibited considerable anxiety that interfered with their normal functioning and was followed by regressive behaviors that both children had previously mastered. [] . . . [] . . . Ad[.] and M[.] both reported that their mother allowed the biological father to spend the day with the children in spite of the court order prohibiting father from having contact with Ad[.], and that the parents instructed them not to tell the caregivers or the therapists about their fathers visit. . . . It is important to note that, following this incident, both Ad[.] and M[.] exhibited increased anxiety and regressive behaviors that were observed at home, school, and in the clinical setting. [] Of concern to the treatment team is the fact that this kind of parental behavior not only demonstrates that the parents were not aware of the potential harm they may have caused to their children by asking them to hold secrets, but it also confirms that parents did not hesitate to put their own needs before the needs of their children and thus continued to exhibit inappropriate and unsafe parenting. The letter ended with the following recommendation: Due to the above concerns and a documented history of sexual abuse perpetrated on Ad[.] by her father, neglect by both biological parents as well as an apparent disregard for the orders of the court, we strongly recommend that the children be given the opportunity to move forward with their life and that there be no contact with biological parent(s). . . . At this point, any contact with the biological parents could only endanger this progress and potentially pose a threat to childrens current and future wellbeing.

The court continued the hearing until October 3, 2006. The interim review report prepared for that hearing indicated that M. and Ad. were interviewed about their parents on September 8, 2006. M. said that appellant always [says] hes going to do something and he dont. I have not seen him in a long time. (changing the subject) I want to play football. The children described the fighting between their parents, and M. defended appellants actions. The social worker noted, There appeared to be no real recollection, from M[.] or Ad[.] of the visits being positive or something they could remember. They also had no[] feeling about seeing either parent in the near future. The children were excited when told their caregivers were interested in adopting. The report referred to the August 2006 letter regarding M.s and Ad.s regressive behaviors following visits with appellant and Mother. The report stated, Given the aforementioned assessment, [the Department] is strongly recommending that visits for mother . . . and [appellant] be terminated as they pose a risk to the childrens physical and emotional health.

At the hearing, the court heard extensive argument from counsel. Appellant was not present, nor did he file responsive pleadings, but his counsel argued that appellant had consistently visited the children. He also argued that because the section 366.26 hearing was already scheduled, excluding visitation would prejudice appellants rights for that hearing.

The court stated: I have read and considered the evidence, notice is proper. The 388 petition is granted. The court finds that visitation with the parents would be detrimental to the children. Parents are to have no contact with the children. The current placement Im also considering the status review report, sorry the September 11th status review report, continued jurisdiction is justified under section 300. The current placement remains necessary and appropriate. The Department provided reasonable services to the parents including to the children including working towards finalizing a permanent plan, that plan will be selected at the [section 366.]26 hearing on November 14th. . . . [O]n Ad[.] and M[.], for the November 14th date, the Department is to do new ICWA notices, and the Department, before doing those new ICWA notices, should review their own responses from the sibling M[.H.]s case that was filed with the Court of Appeal . . . . Same ICWA notices were done on all of the kids, except for Mi[.], so the ICWA notices on M[.H.] were the same ICWA notices that were for Ad[.] and M[.], so Ad[.] and M[.], I need new ICWA notices for November 14th, the 26 date and in doing those new ICWA notices for Ad[.] and M[.], the Department needs to review their own response brief from the siblings appeal.

CONTENTIONS ON APPEAL

Appellant contends that the courts order granting the section 388 petition and terminating all contact between M. and appellant was in error because there was no change of circumstances, the termination of appellants visitation was not in M.s best interests, and the court failed to make specific findings.

DISCUSSION

Section 388 provides that a person with an interest in a dependent child may petition the court to change, modify, or set aside a previous court order. The petitioner must establish: 1) that there is a change of circumstances or new evidence, and 2) that the proposed modification is in the childs best interests. ( 388, subds. (a)-(c).)

The petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) In ruling on the petition, the court may consider the entire factual and procedural history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.)

The legal standard to be applied to a section 388 petition to terminate parental visitation was set out in In re Manolito L. (2001) 90 Cal.App.4th 753. In that case, two minor children were removed from their parents custody and placed in foster care. Mother visited the minors every other week. The court terminated Mothers parental rights, but the order was subsequently reversed due to a possibility of a violation of the ICWA. (Id. at p. 756.) The Department then filed a section 388 petition to terminate Mothers visitation rights because she had not visited regularly and because the minors were more closely attached to their prospective adoptive parents. (Id. at p. 757.) The court concluded, after examining various dependency statutes, in particular section 366.21, subdivision (h) and 366.22, subdivision (a), that the Legislature intended that the juvenile court should use the preponderance of the evidence standard, not the clear and convincing evidence standard, in determining whether termination of visitation would be detrimental to the child in the context of a section 388 petition. (Id. at pp. 760-762.)

Appellant argues that the Department failed to show the requisite change in circumstances because the symptoms the therapists noted were not new and the incident to which the therapists referred, wherein Mother lied about appellants visit, had occurred in April 2005. Appellant also contends that the only change in circumstances was that the legal guardians of M. now wanted to adopt him. He attempts to distinguish the case of In re Heraclio A. (1996) 42 Cal.App.4th 569, in which the guardians desire to adopt was considered a change of circumstances for the purposes of a section 388 petition. (Id. at pp. 577-578.)

Our review of the record reveals that there was a change of circumstances beyond the guardians wish to adopt that supported the granting of this petition. The prior petition had indeed been based on M.s regressive behaviors, but a second evaluation by the team of therapists at CII revealed that M. was progressing nicely. This progress ceased after the court ordered monitored visits with appellant. In the meantime, the court found that appellant was sexually abusing one or more of his daughters. This finding was made after a hearing on the allegations and was not a factor in the prior petition filed in May 2005.

We conclude that the new August 2006 letter from the therapists, the courts conclusion that appellant was abusing M.s sisters, and M.s guardians desire to adopt him constituted a sufficient change in circumstances to support the granting of the petition.

Next, appellant contends that the report by the therapists focuses on Ad., but does not set forth reasons why terminating his contact with M. would be in M.s best interests. He also claims there is no evidence that M. said anything negative about appellants visits, appellants visits were consistent, and there is no evidence that appellant ever harmed M. This contention has no merit.

The letter clearly addresses M.s regression when appellant visited and his progress to date. The statements in the letter that, At this point, any contact with the biological parents could only endanger this progress and potentially pose a threat to childrens current and future wellbeing, make it clear that appellants visits were not in M.s best interests. In addition, the sexual abuse of Ad. and the other female siblings is relevant to a determination of whether terminating visitation with M. was in M.s best interests. (In re Karen R. (2001) 95 Cal.App.4th 84, 90-92.)

The court stated that it finds that visitation with the parents would be detrimental. This is tantamount to a finding that the current situation was not in the best interests of M. The courts statements also make it clear that it found that the August 2006 letter was credible and that letter outlined a change in circumstances. In any event, we may imply findings where the evidence of the courts intent is clear. (In re Andrea G. (1990) 221 Cal.App.3d 547, 554.)

Appellant argues that terminating visitation with M. will make it more difficult for appellant to prevail at a section 366.26 hearing. While that may be so, he offers no authority to support his assertion that this is a factor we should consider. The contention also ignores the fact that the true question is whether the termination of visitation is in M.s best interests, not appellants.

Finally, we address the issue of notice under the Indian Child Welfare Act (the ICWA, 25 U.S.C.  1901 et seq.). In our opinion in the M. H. appeal, filed December 19, 2006, we found that the notices for the April 4, 2006 section 366.26 hearing, where appellants parental rights were terminated, did not comply with the ICWA. We remanded the matter solely so the Department could give proper notice. We gave instructions to the juvenile court that if it found that M. H. was an Indian child, it should set a new section 366.26 hearing and conduct all further proceedings in compliance with the ICWA. If there was no evidence that M. H. was an Indian child, then it should reinstate the order terminating appellants parental rights.

Appellant claims that because M.s Indian heritage was still unresolved, the court should not have granted the section 388 petition. He briefly refers to the October 2006 hearing in which the court ordered that new ICWA notices be sent for M. and Ad. Appellant does not contend in his brief, however, that notices for the section 388 petition were defective pursuant to the ICWA. Since there is nothing in the record which indicates that the section 366.26 hearing has taken place or sets forth the status of the new ICWA notices, we do not need to reach that issue in this opinion.

DISPOSITION

The order of the juvenile court granting the section 388 petition as to M. is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P. J.

MANELLA, J.

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[1] The subject of this appeal, M., also has a last name beginning with H., but because the appeal relating to his sibling was filed first, that sibling is referred to as M. H.

[2] All further statutory references are to the Welfare and Institutions Code.