In re Mackenzie W.
Filed 9/13/07 In re Mackenzie W. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
In re MACKENZIE W., a Person Coming Under the Juvenile Court Law. | |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. ALLISON W., Defendant and Appellant. | D050575 (Super. Ct. No. EJ002591) |
APPEAL from an order of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed.
Allison W., mother of minor daughter Mackenzie, appeals a juvenile court order granting Mackenzie's father Kenneth W.'s[1]Welfare and Institutions Code section 388[2]
petition to require Allison's visits with Mackenzie be supervised. Allison contends the court erred by granting the petition because there were no changed circumstances and supervised visitation was not in Mackenzie's best interests. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Mackenzie was born in January 2004 to Allison and Kenneth. In May 2005 the San Diego County Health and Human Services Agency (Agency) filed a petition on behalf of Mackenzie under section 300, subdivision (b). The petition alleged Mackenzie was at risk of suffering harm because she had been exposed to physical altercations between Allison and Kenneth. The petition further alleged Allison was unable to provide Mackenzie with regular care because she suffered from a mental illness, had previously attempted suicide and was not regularly taking medication to address her condition. The court held a detention hearing and ordered Mackenzie detained in out-of-home care.
The social worker's report detailed Allison's history of mental illness. Allison had attempted suicide in February 2002 and was hospitalized in October 2003 after she claimed she wanted to hurt herself. Allison denies experiencing suicidal ideation since the October 2003 incident. Allison submitted to a medical evaluation that determined she suffered from major depression. The social worker recommended that Allison and Kenneth participate in services to address domestic violence and parenting skills. Allison's case plan also included counseling, a psychological evaluation and a psychotropic medication evaluation. The court held a contested jurisdiction/disposition hearing. Allison and Kenneth submitted to the allegations in the petition. The court ordered the parents to comply with their case plans and placed Mackenzie in a foster home. The court further ordered supervised visitation and authorized the Agency to expand visitation to allow for overnight visits, if appropriate.
During the next six months, Kenneth and Allison made substantive progress with the provisions of their case plans. Allison was authorized to participate in unsupervised visits with Mackenzie, and the social worker believed the visits could be further expanded if Allison continued to regularly participate in therapy and continued taking her medication. The court held a six-month review hearing and, after considering the evidence, ordered the Agency to provide the parents with an additional six months of reunification services.
Allison was the victim of a sexual assault in May 2006, and her visits with Mackenzie became sporadic. The social worker reported Allison had not visited with Mackenzie since June 2006 and that she no longer attended counseling sessions.
Allison did not appear at the 12-month review hearing. The court found she had not made substantive progress, and it terminated her services. The Agency advocated changing Mackenzie's placement to allow her to live with Kenneth. Kenneth had successfully participated in services and had unsupervised visits with Mackenzie. The social worker believed Kenneth would be able to successfully reunify with Mackenzie by the 18-month review date. The court ordered an additional six months of services for Kenneth.
In an addendum report, the social worker noted Kenneth had been accepted into the Coast Guard and was required to report for training in Michigan. The social worker recommended that Kenneth be allowed to take Mackenzie to Michigan and that she live with her paternal grandmother while Kenneth completed his training. The court authorized the move. After Kenneth completed his training, he decided to remain in Michigan with Mackenzie. The social worker reported Kenneth and Mackenzie were doing well in Michigan and recommended that the court terminate its jurisdiction.
The court held a review hearing to address terminating jurisdiction. Allison was not present at the hearing. The court continued the hearing to allow Kenneth additional time to file a section 388 modification petition to modify Allison's visitation order. Kenneth filed his section 388 petition seeking an order that Allison's future visits with Mackenzie be supervised. Kenneth alleged as changed circumstances that Allison no longer visited or telephoned Mackenzie. He asserted it would be in Mackenzie's best interests to modify visitation because Mackenzie had had little contact with Allison in the past several months and Allison's current circumstances were unknown.
In February 2007 the court held an evidentiary hearing to address the section 388 petition. Allison did not appear at the hearing. Kenneth testified telephonically that before he left to complete his training in Michigan, he initiated visits between Mackenzie and Allison on two separate occasions in late September 2006. Kenneth claimed that after he had settled in Michigan, he received three telephone calls from Allison. Allison did not tell him she wanted to visit Mackenzie. Kenneth believed visitation should be supervised because after Allison's assault, her behavior changed and she no longer acknowledged Mackenzie. Kenneth further testified that Allison said she had to stay away from Mackenzie. Social worker Patricia Egre agreed that visits should be changed from unsupervised to supervised because there was little evidence of Allison's current mental state.
Therapist Joan Matlock testified she had not treated Allison for the problems leading to Mackenzie's dependency since May 2006. However, Matlock continued to treat Allison on a weekly basis for the trauma associated with the sexual assault. Together they addressed issues such as fear, grief, loss and posttraumatic stress. Matlock believed Allison was doing well in treatment and did not consider her a danger to others, but acknowledged Allison continued to suffer from depression. Matlock admitted that, generally speaking, people in a state of depression could exhibit behavior rendering them unable to adequately supervise a child. She did not know whether Allison exhibited such behavior when out of her presence.
After considering the testimony and contentions presented at the hearing, the court granted the section 388 petition and ordered Allison to have reasonable, supervised visits with Mackenzie. The court found Allison's participation in the dependency proceedings had been almost nonexistent since July 2006. The condition of Allison's mental state was unknown and although she was being treated by a therapist and the therapist believed Allison was doing well, Allison's behavior and Kenneth's testimony suggested otherwise. The court ordered sole physical custody of Mackenzie to Kenneth and terminated jurisdiction. Allison timely filed a notice of appeal.
DISCUSSION
I
Allison contends the court erred by granting Kenneth's section 388 modification petition. Allison asserts her circumstances had not changed sufficiently to warrant modifying her visits with Mackenzie from unsupervised to supervised. She further asserts the proposed modification was not in Mackenzie's best interests because the evidence showed she could safely participate in unsupervised visits.
A
Under section 388, a party may petition the court to change or set aside any previous order of the court in the juvenile dependency action. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) The petitioning party has the burden of showing, by a preponderance of the evidence, a change in circumstances or new evidence and the proposed change is in the child's best interests. ( 388; Jasmon O., supra, at pp. 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 Casey D. (1999) 70 Cal.App.4th 38, 47.) 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. When two or more inferences reasonably can be deduced from the facts, we may not substitute our decision for that of the trial court. (Stephanie M., supra, at pp. 318-319; Casey D., supra, at p. 47.)
B
As changed circumstances, Kenneth alleged Allison no longer visited Mackenzie or made inquiries into her well-being. The record shows that at the onset of the dependency proceedings, Allison made significant progress toward reunifying with Mackenzie and was authorized to participate in unsupervised visits. Allison unfortunately became the victim of a sexual assault, and thereafter her participation in reunification services ceased. After June 2006 she did not visit Mackenzie on her own initiative. She continued to see her therapist to address the trauma associated with the assault but she did not receive therapy to address problems associated with the dependency. In September 2006 Allison visited with Mackenzie, but only after Kenneth made efforts to arrange visits. In the interim, she cancelled visits scheduled by the Agency and did not attend dependency hearings. Kenneth eventually moved to Michigan with Mackenzie but Allison did not show interest in visiting Mackenzie. She did not initiate visits or ask to speak with Mackenzie by telephone. Allison no longer made strong efforts to reunite with Mackenzie even when provided with opportunities to do so by the Agency and Kenneth. Based on the record, Allison's circumstances had changed.
In addition to showing changed circumstances, there was evidence to show it was in Mackenzie's best interests to require supervised visitation with Allison. At the time of the hearing on Kenneth's modification petition, there was little evidence documented by the Agency showing the status of Allison's mental state. Before the dependency proceedings began, Allison suffered from a long history of mental illness and made at least one suicide attempt. Therapist Matlock's testimony and the Agency's reports stated Allison was not participating in therapy for issues surrounding the dependency. Matlock verified that Allison continued to suffer from depression, and Matlock admitted depressed persons might not be able to adequately supervise a child. Allison told Kenneth that she should stay away from Mackenzie and Kenneth observed that Allison had not "really been herself lately." The evidence shows that Allison's ability to safely supervise Mackenzie had been brought into question, particularly when compared to the early stages of the dependency during which Allison had made significant progress. Under these circumstances, the court properly evaluated the evidence in context of Mackenzie's need for stability and security, and found her best interests would not be served by allowing unsupervised visitation with Allison. The court did not abuse its discretion by granting Kenneth's petition.
DISPOSITION
The order is affirmed.
McDONALD, Acting P. J.
WE CONCUR:
O'ROURKE, J.
AARON, J.
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[1] Kenneth W. is not a party to this appeal.
[2] All statutory references are to the Welfare and Institutions Code.
