In re Sierra K.

Filed 10/12/06 In re Sierra K. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, John C. Gastelum, Judge. Affirmed.

Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, Dana J. Stits and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.

* * *

Heather K. (mother) appeals from an order of the juvenile court denying her modification petition, in which she sought two more months of reunification services or the immediate return to her custody of two-year-old Sierra, who mother’s husband, Brian K. (father), blinded by shaking violently when she was three months old. (See Welf. & Inst. Code, § 388 [providing for modification of court’s prior orders]; all further statutory references are to this code unless specified otherwise.) Mother contends the juvenile court violated due process by weighing the credibility of her allegations in support of her petition, thereby contravening the threshold prima facie standard for an evidentiary hearing on her petition. In a related claim, she argues the court erred in denying her modification petition without conducting an evidentiary hearing. For the reasons that follow, we conclude neither contention has merit, and therefore affirm.

I

FACTUAL AND PROCEDURAL BACKGROUND

Little has changed in this case since we last reviewed it on mother’s writ petition challenging the juvenile court’s order sustaining Orange County Social Service Agency’s (SSA) supplemental petition alleging mother continued to allow contact between Sierra and her abuser. (See Heather K. v. Superior Court (Dec. 13, 2005, G036017) [nonpub. opn.].) For the reader’s convenience, we restate the following background information from that opinion:

“SSA detained three-month-old Sierra when mother and father brought her to the hospital on March 17, 2004, with brain and eye injuries that doctors determined were inflicted by nonaccidental trauma. . . . The child’s parents gave implausible explanations for her injuries: her head had flopped inadvertently when handed to her paternal aunt or perhaps father’s stick shift transmission abruptly ‘jerked’ her around in her carseat. Curiously, father asked if the medical evidence showed whether Sierra’s injuries were inflicted in one incident or more, which the admitting doctor found odd since ‘no one had indicated to the child’s parents that non-accidental trauma was being considered as they were still performing several medical tests.’ Sierra’s neurosurgeon confirmed to SSA that the hematomas ‘did appear to be different ages, indicating two separate incidents of trauma.’ He also noted that ‘retinal hemorrhages by themselves are being shown in the research to be less significant’ as markers of child abuse ‘unless coupled with changing stories, significant abuse history and subdural hematomas.’

“Once the parents learned the hematomas were inflicted on separate occasions, they volunteered two new explanations that corresponded conveniently with the estimated injury dates: first, Sierra propelled herself a few inches into a kitchen backsplash while being bathed and, second, her head bounced against mother’s chest while crossing a rope-and-plank bridge at Disneyland. As one doctor remarked, however, these accounts were ‘highly unlikely’ since a force similar to falling from a two-story building caused the hematomas.

“The day doctors treated Sierra in the emergency room, she had been in father’s care while mother ran an errand. Reflecting on her daughter’s injury, mother believed: ‘this is too much of a coincidence,’ given that father’s child by his former wife had suffered bruises, bone fractures, and brain and ocular injuries consistent with shaken baby syndrome, leading to termination of parental rights over that child and a sibling. SSA’s inquiry revealed that father’s ex-wife pleaded guilty to charges of child endangerment causing great bodily harm, and received probation. According to father, the abuse occurred during ‘black-outs’ his former wife did not remember. Strangely parallel, Sierra’s paternal aunt surmised that if it were father who shook Sierra, it ‘may have been . . . during a sleepwalking episode . . . .’

“Mother pleaded no contest to SSA’s dependency petition alleging serious physical harm, failure to protect, severe physical abuse of a child under five, cruelty, and abuse of a stepsibling. (§ 300, subds. (a), (b), (e), (i) & (j).) Father submitted on SSA’s reports; the juvenile court found the allegations true and sustained jurisdiction over Sierra. Although SSA recommended against reunification services for mother or father, the court granted mother’s request for a psychiatric evaluation. The expert concluded mother was capable of benefiting from services, which the court ordered, but the court denied services to father based on the severe physical abuse of Sierra’s stepsibling. (§ 361.5, subd. (b).)

“Mother progressed on her case plan. Even before the jurisdiction hearing, she had moved into a housing program providing counseling and employment assistance. SSA evinced some concern the separation was ‘only for appearances with the intention of continuing a relationship and re-uniting after the dependency case has been completed . . . .’ Indeed, father admitted his ‘plan’ in the prior dependency ‘was for the maternal relatives to adopt the child . . . and then return . . . [the child] to him and his wife . . . once [SSA] and the Orange County Juvenile Court were no longer involved.’

“Father undertook voluntary services. His individual therapist noted that mother’s move to the residential program upset father, who, in a flat affect betraying a concerted effort to maintain self-control, dominated sessions in a manner typical of abusers. Mother refused to move back in with father. But she continued to rely on him for transportation, though she had a bus pass. Her housing program offered to pay for cab rides to wean her from father and, following the six month review, SSA highlighted the seriousness of the issue by terminating mother’s referral to a therapist who tacitly endorsed mother’s reliance on father for rides.

“By the 12-month review in May 2005, Sierra had returned to mother’s care for a trial 10-night stay and a 60-day stay aimed at transitioning her back to mother’s custody. For six months, SSA had noted mother ‘could make her intentions more convincing by taking the necessary steps towards legally separating from [father],’ but she always had an excuse why the paperwork had not been filed. Nevertheless, at the 12-month review, the juvenile court placed Sierra with mother subject to a family maintenance agreement specifying, among other requirements, ‘You will not allow any contact between the abuser and your child . . . .’ Mother’s prospects for permanent reunification appeared bright, for she had been a consistent and active participant in family preservation services and individual therapy, and was nearing completion of a 52-week child abuse treatment program, including 24 weeks of parenting classes. She maintained suitable housing and stable employment as a manager in a fast food restaurant, and appeared to be ‘independent of her husband . . . .’

“SSA became concerned about reports from the Blind Children’s Learning Center (BCLC) that a man dropped off and picked up mother and Sierra. A social worker had previously confronted mother about sharing rides with father and she had denied doing so, as did father. The worker visited the BCLC on May 13 [, 2005] and noticed mother drive up in father’s vehicle and quickly exit the parking lot on seeing the worker’s vehicle. Mother called the worker the next day to explain she only borrowed the car on this one occasion; the worker reiterated that exposing Sierra to father was unacceptable and that, in doing so, mother was placing the child at risk. Mother denied doing so, stating she picked up and dropped off the vehicle through an intermediary, the paternal grandmother.

“On June 23, 2005, SSA took Sierra into protective custody and filed a supplemental dependency petition (§ 387) when a social worker observed mother exiting father’s vehicle with Sierra. Father had parked in a residential area near the BCLC, and mother carried the child down the street to the center. Mother admitted Sierra had been with father on two other occasions: the paternal grandmother’s retirement party and another ride to the BCLC.

“It became clear mother’s contacts with father were pervasive. They corresponded by telephone and e-mail, and she sent him pictures of Sierra. Mother believed ‘having a father figure is important . . .’ and observed that once the dependency proceedings closed, any limitations on contact between the child and father ‘would be determined by me . . . .’ Earlier in the proceedings, she noted she planned to move back to North Carolina after the case closed, and if father followed her, she could do nothing about it.

“She had not yet divorced father because ‘I’m a Christian,’ who ‘never wanted to be divorced’ and thus was working up to it, ‘nervous and scared’ of ‘not being a good person.’ She acknowledged child abuse was a justifiable reason for divorce, and seemed to recognize father inflicted Sierra’s injuries since ‘he was the only one caring for the child at the time.’

“Father stopped by mother’s workplace to make child support payments as often as twice a week. He claimed he could not mail her payments because he had no checking account and money orders were not an option because he needed to see her to learn how much she required. They dined together after court hearings.

“The extent of their contact was revealed in casual comments, such as father’s statement to a visitation monitor that mother had told him Sierra’s nails were getting long. Sierra’s foster family, noting mother’s and father’s identical vehicle for their separate visits, asked, ‘How are they not spending time together? It’s the same car.’ The foster parents had earlier expressed concern that ‘mother and father are still aligned and that the father will be back in the home once the mother has Sierra back in her care.’ A BCLC employee reported the same man sat in a vehicle at the back of the parking area as regularly as every day for two weeks at a time.

“Mother testified tearfully. She admitted she misled the social worker about her reliance on father for transportation. Her boss helped her buy a car, so she would no longer resort to father. She claimed she informed father she was no longer interested in a relationship with him, or fostering one between him and Sierra. According to mother, she completed the marital dissolution paperwork, ‘now I just have to find the time to come here and file it.’ She did not have ‘any explanation’ for meeting with father after court dates.

“The juvenile court concluded father’s contact with Sierra at the retirement party did not pose a risk to Sierra because over 200 people were present. But the court expressed grave concern that mother’s ‘conduct is not indicative of a person who is separating herself, either physically or emotionally, from the father. She has in the past called the father controlling and manipulative. And either she is willingly continuing a relationship with him, or he’s managing to manipulate her so as to continue the relationship. Whichever it is, the fact that mother has been unable to establish a separate life for herself and the child without the involvement of the father is in this court’s opinion an ongoing risk to the child.’ The court noted mother received nearly 16 months of services. Addressing mother, the court ‘recognize[d] the difficult position that you have found yourself in, living in California without family and without friends, and having to do it all yourself,’ and accepted as true mother’s explanation that she accepted rides from father on certain dates because of the difficulty of getting Sierra to school and herself to work by bus.

“But the court could not overlook the ‘horrible injuries to your child’ and remarked on the common sense need to ‘get as far away from the person that injured [the] child as possible.’ The court concluded, ‘I just don’t see that happening. And I don’t know why. And I don’t know whether it’s an emotional reliance or a choice to choose this man over your child. . . . And the reasons really are irrelevant. It comes down to what I must do.’ The court determined vesting custody with mother or father would be detrimental to the child, and therefore sustained the supplemental petition. Because the court did not find a substantial probability Sierra would be returned to mother within the next two months, as required by the maximum 18-month reunification period (§ 361.5, subd. (a)(3)), the court denied further reunification services, and set a hearing for selection and implementation of a permanent plan for the child (§ 366.26).” (Heather K. v. Superior Court, supra, slip opn. at pp. 2-9.)

Following our opinion denying mother’s writ in December 2005, she filed a modification petition that month. She alleged, among other claims, that “I have not had any contact with [father] since the last court date in September.” In a status report filed with the juvenile court, SSA noted Sierra had been placed with new caretakers since being detained from mother’s custody in June 2005, and she was thriving. The social worker observed: “Sierra is developing a trust in others, including her caretakers. She is responsive and no longer afraid to spend time with people who are familiar to her. Her caretaker commented that it has taken a lot of work to get her where she is in this area.” The new caretaker was one of Sierra’s former teachers at the BCLC, together with her husband. The caretakers were interested in adopting Sierra and had initiated that process. The worker concluded her report by observing that mother “continues to be a safety concern for the child in that she has previously failed to protect the child from contact with the perpetrator of abuse.” The worker added: “The undersigned continues to have concerns regarding [mother]’s willingness to protect the child from the child’s father and believes that [mother] is unable to put her child’s needs before her own. Should the child be returned to her care, the undersigned believes that the child will be at continued risk of physical abuse at the hands of her father.”

The juvenile court set the hearing on mother’s modification petition for January 2006 and, in the interim, SSA filed an update to its report. The update included disturbing information from mother’s therapist. The therapist reported mother missed two sessions in December but divulged in the session she attended that she had “continued contact with [father],” which the therapist surmised “may be due to her real or perceived lack of emotional support from her extended family.” According to the therapist, mother “is indicating on the surface that she is being cooperative but I don’t feel that she is being completely forth[]coming. She is still talking to [father] on the phone. She got a restraining order against [father] but is still communicating with him.” The social worker recommended the court deny mother’s modification petition: “The undersigned believes that [mother] feels strongly about reuniting with her daughter; however, [mother] has previously placed her daughter at continued risk of abuse by the child’s father through allowing unauthorized contact between the child and her abuser (father). [Mother] made poor choices in this area after receiving a number of services that were tailored to assist her in providing a safe and stable home for her daughter. The undersigned does not believe that any additional services would change [mother]’s ability to make good and safe choices for her daughter. Should the child be reunified with her mother, she would continue to be at risk of abuse and neglect.”

The court admitted SSA’s December and January status reports into evidence on January 26, 2006, at a combined hearing on mother’s modification petition and a scheduled permanent plan selection and implementation hearing (§ 366.26; .26 hearing). Mother did not object to admission of either report. The court denied mother’s modification petition, concluding, “I don’t believe on either ground, either changed circumstances or best interest of the child, that there’s been [a] sufficient showing to warrant granting a hearing . . . .” Pursuant to the parties’ stipulation, the court continued the .26 hearing to March, and later to April.

On the eve of the .26 hearing set for April, mother filed a second modification petition. She declared again, just as she had in her initial modification petition, that “I have not had any contact with [father] since September 2005, except in court.” The petition included other supporting allegations, which we detail below. The juvenile court again continued the .26 hearing pursuant to the parties’ stipulation, but heard mother’s modification petition and denied it, concluding again an evidentiary hearing was not warranted. Mother appeals the court’s order denying her second modification petition, and we now turn to the merits of that claim.

II

DISCUSSION

A. No Due Process Violation

Mother contends the juvenile court violated due process by weighing her credibility in denying her second modification petition without a hearing. She argues the juvenile court was required to accept as true her declaration she had no contact with father since September 2005. She filed the declaration on April 11, 2006 in support of her second modification petition, which the court heard that same day. She had made an identical allegation in support of her first modification petition, filed in December 2005. Mother acknowledges her therapist reported she continued to have contact with father into December 2005, as noted in a status report SSA filed with the court before the first modification petition was heard in January 2006. The juvenile court noted on the record at the January hearing that it was admitting the report into evidence. Mother did not object. Nor did she appeal from the ensuing denial of her first modification petition.

Mother claims that because she merely repeated in her second modification petition that she had not had contact with father since September 2005, the juvenile court was required to credit that assertion and disregard her therapist’s statement in SSA’s earlier report. Anything less, according to mother, amounted to a weighing of her word against the therapist’s, violating due process by dispensing with the applicable prima facie standard. “A parent need only make a prima facie showing . . . to trigger the right to a hearing” on a modification petition. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) And it is true that, consistent with the prima facie standard, a juvenile court ordinarily credits the factual allegations underlying the modification petition. (See In re Edward H. (1996) 43 Cal.App.4th 584, 593 [“A ‘prima facie’ showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited“], italics added; accord, In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413-1414 [“petition must be liberally construed in favor of its sufficiency”].)

The court, however, is not obligated to accept the petitioner’s allegations in a vacuum sealed off from facts revealed earlier in the proceedings. Rather, the “historical patterns” of the parents are always relevant to the court’s evaluation of the petition, even for its prima facie sufficiency. (Zachary G., supra, 77 Cal.App.4th at p. 808; see, e.g., In re Cliffton B. (2000) 81 Cal.App.4th 415, 421 [claim of seven months’ sobriety insufficient against “long history of relapsing”].) Having been admitted at a prior hearing, the therapist’s remarks became evidence the juvenile court was entitled to believe. (See § 355, subd. (b) [hearsay contained in dependency reports is competent evidence, absent an objection].) Presented with mother’s second petition, the juvenile court could reasonably conclude mother’s reiteration of facts already contradicted by her therapist mirrored her earlier unwillingness to face that father blinded her daughter. In short, far from showing a change in circumstances or new evidence warranting a hearing, mother demonstrated her lack of insight continued. As the court observed, “this is mostly the same information that was presented . . . back in January.”

Mother’s reliance on In re Clifton V. (2001) 93 Cal.App.4th 1400 and In re Matthew P. (1999) 71 Cal.App.4th 841 is misplaced. In those cases, the reviewing court determined the party requesting modification had a due process right to rebut declarations and reports produced for that hearing. (See also § 355, subd. (b)(2) [hearsay contained in dependency reports is admissible, provided preparer of report is available for cross-examination].) But here mother made no objection whatsoever to the report (see Evid. Code, § 353 [failure to object to hearsay waives the issue]), nor did she appeal the denial of her first modification petition, when the issue arose. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150.) Accordingly, the juvenile court was not required to review mother’s second modification petition as if the report and the therapist’s observations had never been made. In sum, we perceive no due process violation.

B. No Error in Denying Modification Petition without an Evidentiary Hearing

Mother contends that even absent a due process violation, the juvenile court erred by denying her modification petition without an evidentiary hearing. Section 388, subdivision (c), provides that “[i]f it appears that the best interests of the child may be promoted by the proposed change of order . . . , the court shall order that a hearing be held . . . .” (Italics added.) A change of order presupposes a change of circumstances. A juvenile court order may therefore “be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child.” (Zachary G., supra, 77 Cal.App.4th at p. 806.) As noted, a parent “need only make a prima facie showing of these elements to trigger the right to a hearing . . . .” (Ibid.)

But the “prima facie requirement is not met unless the facts alleged . . . would sustain a favorable decision on the petition.” (Zachary G., supra, 77 Cal.App.4th at p. 806; see In re Alexis W. (1999) 71 Cal.App.4th 28, 36 [party seeking modification “has the burden of showing not only that circumstances have changed, but that [proposed change] would be in the child’s best interests”].) On appeal from denial of a modification petition, the “‘”reviewing court will not disturb the decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].”’” (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) The juvenile court has the discretion “whether to provide a hearing on a petition alleging changed circumstances.” (In re Aljamie D. (2000) 84 Cal.App.4th 424, 431.) “If the petition fails to state a change of circumstance or new evidence that might require a change of order or termination of jurisdiction, the court may deny the application ex parte.” (Cal. Rules of Court, rule 1432(b).)

Factors circumscribing the juvenile court’s discretion in evaluating a modification petition, and informing our review, are: “(1) [T]he seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.) Also, as our Supreme Court has explained, “[A] primary consideration in determining the child’s best interests is the goal of assuring stability and continuity. [Citation.] ‘When custody continues over a significant period, the child’s need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.’ [Citations.]” (Stephanie M., supra, 7 Cal.4th at p. 317.)

Mother argues the following allegations in her second modification petition constituted changed circumstances requiring an evidentiary hearing: (1) new employment (of an undisclosed nature) with the Walt Disney Company increasing her income and including medical benefits for Sierra; (2) she acquired car insurance and a car seat; (3) her divorce from Sierra’s abuser would be final in another six months; and (4) she participated in a new support group with fellow Disney employees and with her former manager from a sandwich shop. According to mother, these changes established probable cause (Alijamie D., supra, 84 Cal.App.4th at p. 431) that her request for an additional two months of reunification services or immediate return of Sierra to her custody would be in the girl’s best interests.

Mother adds that her allegation she had no contact with Sierra’s abuser since September 2005 also supported her modification petition. As we have discussed, however, the juvenile court was not required to credit this bare assertion given that this was not new evidence but merely contradicted (again) the historical record already established. The juvenile court could reasonably view the resulting gap in her petition as dispositive for, as mother recognizes: “The paramount factual issue in this case is whether appellant had unauthorized contact with [father] since September 2005. It is undisputed that if appellant maintained an ongoing relationship with [father], Sierra would be placed at risk.” Mother’s established contact with the abuser into, at least, December 2005 -- and her willingness to lie about it -- demonstrated that her grave error of remaining entangled with her daughter’s brutal abuser was a problem she could not easily ameliorate. (See Kimberly F., supra, 56 Cal.App.4th at p. 532.) Given her history of misleading the court and the social worker about her contact with father, and her documented contacts with him into December, it was incumbent upon mother to address these obstacles and make a prima facie showing they would not recur. This she did not, and perhaps could not, do. Instead she merely repeated in her second modification petition the false allegation from her first petition.

True, mother’s other allegations in her second petition showed she was making admirable progress in disentangling herself from father: she had finally filed for divorce and her new support group included people who did not know her as enmeshed with father, supported her in that choice, and apparently helped fill the emotional void he exploited. Counsel also asserts father did not know of mother’s new job and thus could not visit her there as he formerly did, but mother did not so allege in her petition, and the arguments of counsel are not evidence. And mother’s contention she now had insurance and an infant car seat added little to her claim in her first petition that she no longer needed to rely on father for transportation because she acquired a car.

In any event, against a backdrop of some progress -- and dangerous lapses in judgment continuing into December 2005 -- the record showed Sierra was thriving with her caretakers, who were likely to adopt her. The foster mother was employed as a teacher for blind children and Sierra had been her student. According to SSA’s reports, Sierra was “doing well with the stability that she is receiving in her current placement.” In her short life of some 28 months, Sierra had lived with her teacher and her husband for at least 10 months, more than twice the time in mother’s custody. The juvenile court had granted the caretakers de facto parent status and they reported that, while Sierra had been “significantly delayed when placed in our home,” she “has blossomed and developed to the point of meeting [and] exceeding developmental milestones . . . .” (See also Cal. Rules of Court, rule 1401(a)(8) [defining de facto parent as “a person . . . found by the court to have assumed, on a day-to-day basis, the role of [a] parent, fulfilling both the child’s physical and psychological needs for care and affection, and who has assumed that role for a substantial period”].)

In sum, even crediting every allegation in mother’s second petition, the juvenile court could reasonably conclude an additional two months of services or altering Sierra’s placement by removing her from the caretakers’ home would not serve her best interests. (See Stephanie M., supra, 7 Cal.4th at p. 317 [child’s interest in continuing a stable placement predominates].) Consequently, the juvenile court did not abuse its discretion in denying an evidentiary hearing on the allegations in the petition.

III

DISPOSITION

The juvenile court’s order denying mother’s modification petition is affirmed.

ARONSON, J.

WE CONCUR:

RYLAARSDAM, ACTING P.J.

FYBEL, J.

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