In re S.R.
Filed 6/14/13 In re S.R. CA1/3
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
THREE
>
In re S.R., a Person Coming Under the Juvenile Court Law. | |
LAKE COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. S.S., Defendant and Appellant. | A136208 (Lake County Super. Ct. No. JV-320229-B & C) |
This
is an appeal from the juvenile court’s denial of a petition by appellant S.S.
(mother) pursuant to Welfare and Institutions Code section 388 to modify a
previous court order terminating reunification
services and visitation with her minor children, S.R. and V.R. III
(collectively, children). We affirm.
PROCEDURAL AND FACTUAL
BACKGROUND
This
is the fifth appeal to arise out of these dependency
proceedings involving mother and her three children, son V.R. (born July
2000), daughter S.R. (born October 2004), and son V.R. III (born March 2008).
& Institutions Code section 300 was filed in June 2009 (section 300
petition). This section 300 petition, which
was later amended, was based upon allegations that mother, among other things,
abused controlled substances including alcohol, marijuana and methamphetamines,
and failed to maintain safe and clean living conditions for the children.
had been sexually abused or otherwise physically abused by their father (who
also abused mother), and that S.R. and V.R. III had sustained significant
not or could not be adequately explained by mother.
Following
contested hearings, the juvenile court sustained the allegations in the section
300 petition, as amended, declared the children dependants, removed them from
mother’s custody, and ordered reunification services for mother. Eventually, S.R. was placed in a group home
and V.R. III in a foster home. The
department opined that it was unlikely S.R. would be adopted given her
problematic behavior, but likely V.R. III would be adopted.
In
the meantime, mother successfully completed six months of reunification
services and was permitted six additional months. However, she was thereafter the subject of a
section 342 petition filed by respondent
Department of Social Services (department) alleging she sexually abused S.R.
during an unsupervised visit by inserting a sharpened pencil into her
vagina. After a contested hearing in
August 2010, the juvenile court sustained the allegations in the section 342
petition and terminated mother’s visitation on the ground that it was
detrimental to the children. Then,
following another contested hearing in September 2010,
the juvenile court terminated services for mother after finding them no longer
beneficial and set the matter for a section 366.26 permanency planning hearing.
These decisions were affirmed by this court on November 29, 2011. (In re V.R., supra, A129712.)
On
January 6, 2011, mother
filed separate but identical petitions for modification pursuant to section 388
seeking reinstatement of reunification services and/or visitation with all
children.
things, advised the juvenile court that, since services and visitation were
terminated, she had on her own initiative made substantial efforts in
furtherance of reunification. In
particular, mother had, among other things, become gainfully employed, enrolled in parenting
courses, participated in college-level courses in furtherance of a nursing
degree, graduated from a 12-step recovery program, and received counseling
services. Additionally, mother claimed
the children were bonded to her.
The
children’s counsel and the department opposed mother’s section 388 petition. In doing so, the department incorporated by
reference a written psychological evaluation of mother performed by
Dr. Jacqueline Singer in April 2010 that, among other things, diagnosed her with
depressive disorder, NOS, and alcohol, marijuana and methamphetamine abuse in
remission (Axis I of the DSM-IV), and Mixed Personality Disorder, NOS, with
Passive, Aggressive and Paranoid features (Axis II of the DSM-IV). In reaching these diagnoses, Dr. Singer
identified the following psychological traits in mother. Due at least in part to mother’s long term
involvement in an abusive relationship, she had poor self-esteem and tended to
be hyper-vigilant, socially isolated and passive. At the same time, mother had a tendency to
lash out impulsively and sometimes in a hostile manner toward others. Mother had serious cognitive limitations
which resulted in difficulties managing her feelings, particularly when highly
stimulated by her own internal experiences.
She often used denial or constriction of experience as a coping
mechanism, and her perceptions tended to become distorted by anger or feelings
of being overwhelmed, stressed or out of control. Finally, Dr. Singer
found, mother was likely to use paranoid-type defenses, projecting her feelings
of anger or inadequacy onto others.
On
March 7, 2011, the juvenile court summarily denied mother’s section 388
petition as to V.R. III and S.R. In
doing so, the trial court explained that while “[mother has] addressed some of
her issues and was addressing those at the time of the most recent termination
[of] services and the setting of the [366].26 . . . she hasn’t gone
further and addressed the psychological aspects of the problem that – why she
would do any of this to her kids.â€
name="_ftnref7" title="">[7]
On
March 28, 2011, mother filed a notice of appeal of the juvenile court’s
summary denial of her section 388 petition.
Thereafter, on May 2, 2011, a permanency planning hearing was held
in conjunction with the aforementioned hearing on mother’s section 388 petition
as to V.R. At the conclusion of the
hearing, the juvenile court selected adoption as the permanency planning goal
for all children, a decision consistent with the department’s most recent
recommendations. Mother’s parental
rights to V.R. III were terminated and adoption selected as his permanent plan
on November 7, 2011. Long-term
foster care, in turn, was selected as S.R.’s permanent plan. Mother filed a timely notice of appeal of
these decisions on November 16, 2011.
On
January 4, 2012, in one of the aforementioned prior appeals in this
matter, we reversed the juvenile court’s summary denial of mother’s section 388
petition, concluding that
mother’s evidentiary showing that she had enrolled in a parenting class, found
a job, attended college classes, graduated from a substance abuse course, and
participated in counseling was “sufficient to warrant a hearing to establish
whether the counseling she received, in conjunction with her other efforts,
amounted to changed circumstances warranting the relief requested (resumption
of visitation and a further period of reunification services).†(In
re S.R., supra, A131611 at p. 7.)
As such, we remanded the matter to the juvenile court for a full
evidentiary hearing on the section 388 petition.
Before
this remand hearing was held, however, on June 12, 2012, we affirmed the
juvenile court’s termination of mother’s parental rights to V.R. III pursuant
to section 366.26. (In re V.R., supra,
A133847 at p. 11.) In doing so, we concluded the record
contained substantial evidence supporting the juvenile court’s finding by clear
and convincing evidence that V.R. III was likely to be adopted within a
reasonable time. (Id. at pp. 10-11.)
Thereafter,
in July 2012, the remand hearing on mother’s section 388 petition was
held. Mother submitted a supplemental
petition indicating she had remained sober, graduated from the Women’s Recovery
Services program, participated in additional therapy sessions to address anger
management and substance abuse issues, and had continued to attend college-level
classes. In addition, mother testified
at the hearing that she had continued to work on her parenting skills, thereby
learning adaptive techniques for dealing with sexually abused children, gaining
understanding of her children’s struggles and of the need to maintain
appropriate boundaries, becoming more open to change and less prone to anger,
and improving her listening skills.
name="_ftnref8" title="">[8] However, mother continued to deny sexually
abusing S.R., despite the fact that the allegations of such abuse in the section
342 petition had been sustained following a full evidentiary hearing. Mother also denied telling a social worker
shortly after the incident that she accidentally scraped S.R.’s inner thigh
with a sharpened pencil after V.R. III threw the object into the tub while S.R.
was bathing, and then later telling the social worker that S.R. scratched
herself with a pencil that V.R. III had thrown on the floor. In addition, mother denied telling a police
detective that S.R. was injured while squatting naked to try to pick up a
pencil on the floor (even though the detective stated otherwise).
Following
this hearing, the juvenile court again denied mother’s section 388 petition as
to V.R. III and S.R, finding “insufficient evidence of changed circumstances
regarding her psychiatric issues and anger management, her feelings of
depression and anxiety which are in part what led to the current
situation.†In making this finding, the
court referenced a recent July 2012 report from mother’s therapist noting that
she was still experiencing severe feelings of depression and anxiety, although
she hoped to learn certain adaptive parenting skills and personal coping
skills. According to the court, this
reflected “hope of change†rather than actual change.
Further,
with respect to the children’s best interests, the juvenile court noted the
lack of current evidence of a strong bond between mother and the children and
the seriousness of the reasons for their removal. Despite this seriousness, mother continued to
be in “complete denial of having done anything,†to show no insight or remorse,
and to give multiple and inconsistent stories relating to the allegations of
abuse. On those grounds, the court
denied mother’s section 388 petition as to both S.R. and V.R. III.
Mother
now seeks review of the order denying her section 388 petition as to both
children.
Mother
challenges on two grounds the juvenile court’s denial of her section 388
petition to modify the order terminating reunification services and visitation with
respect to S.R. and V.R. III. First,
mother contends the juvenile court’s ruling was an abuse of discretion because,
as a matter of law, she proved her circumstances had changed such that
visitation and further services were in both children’s best interests. Second, mother contends the juvenile court’s
ruling violated the law of the case established by this court in the related
appeal of In re S.R., supra, A131611,
in that the lower court failed to return the matter to the procedural posture
existing at the time it erred (as this court held) by summarily denying her
section 388 petition. We address each
contention in turn.
the denial of mother’s section 388 petition an abuse of discretion?
Before
and after reunification services are terminated, a parent has a continuing
right to petition the court pursuant to section 388 for a modification of any
order in the case based on a showing of changed circumstances or new
evidence. (§ 388.) In bringing the petition, the parent has the
burden to prove by a preponderance of the evidence that changed circumstances
exist and that the proposed modification would be in the child’s best
interest. (Nahid H. v. Superior Court
(1997) 53 Cal.App.4th 1051, 1068; Cal. Rules of Court, rule 5.570(a)(e).)
A
juvenile court’s decision to grant or deny a section 388 petition will not be
disturbed on appeal absent a clear abuse of discretion. (In re
Stephanie M. (1994) 7 Cal.4th 295, 318.)
In applying this standard, we keep in mind that “[s]ection 388 plays a critical
role in the dependency scheme. Even after family reunification services are
terminated and the focus has shifted from returning the child to his parent’s
custody, section 388 serves as an ‘escape mechanism’ to ensure that new
evidence may be considered before the actual, final termination of parental
rights. (Citation.) It ‘provides a means for the court to address a legitimate
change of circumstances’ and affords a parent her final opportunity to
reinstate reunification services before the issue of custody is finally
resolved. (Citation.)†(
1497, 1506; see also In re Marilyn H.
(1993) 5 Cal.4th 295, 307 [section 388 is one of the “significant safeguardsâ€
built into the dependency scheme to ensure parents receive due process].)
As
set forth above, mother’s petition for modification under section 388
sought further reunification services and/or visitation with S.R. and V.R.
III. The petition, among other things,
advised the juvenile court that, since services had terminated, mother had on
her own initiative complied with the requirements set forth in the department’s
case plan by, among other things, finding a job, enrolling in parenting courses, taking college-level
courses in furtherance of a nursing degree, graduating from a 12-step recovery
program (WSR), and receiving counseling services. In addition, mother testified at the
hearing that she had been learning adaptive techniques for dealing with
sexually abused children and other parenting skills, and had gained a greater
understanding of her children’s struggles and of the need to maintain
appropriate boundaries.
In
denying mother’s section 388 petition, the juvenile court acknowledged this
evidence of progress. Nonetheless, the
court found mother’s circumstances were not sufficiently changed for purposes
of section 388, given that she continued to deny having sexually abused S.R.
despite the sustained allegations in the section 342 petition, and had not yet
successfully acknowledged or treated her mental health issues relating to,
among other things, depression, coping with stress and anger management. The juvenile court also noted the lack of evidence in the
record of a “strong bond†between mother and the children.
As this record demonstrates,
the juvenile court appropriately considered a multitude of relevant factors in
denying mother’s section 388 petition, including the seriousness of the
physical abuse and other problems that led to the children’s dependency, the
degree to which those problems can or have been ameliorated by mother, and the
strength of the children’s bond to mother.
(Nahid H.
at p. 1068; Cal. Rules of Court, rule 5.570(a)(e).) And while, as the juvenile court found, the evidence
reflected that mother had in the past few months taken steps to address her
substance abuse problem, employment status and certain deficiencies in her
parenting abilities, it did not prove she had addressed other significant
problems relating to her ongoing depression and capacity for abusing her
children. While mother continues to insist she did not and would
never touch her children in an inappropriate sexual manner, the juvenile court
had discretion on this record to find otherwise, particularly in light of the
many inconsistencies in her recollection of what happened to S.R. during the
instance of abuse alleged in the section 342 petition. We accept the lower court’s proper exercise
of discretion, as is our duty.
Accordingly,
given mother’s demonstrated failure to gain insight into or otherwise address
these serious problems affecting her ability to parent, the juvenile court had
reasonable grounds to find that her evidence of changed circumstances was
insufficient and that her children’s best interests would not be served by
providing additional visitation or reunification services. (See In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) Simply put, additional services or visitation would have
added to the time during which the children have been deprived of a stable and
secure home and, in light of mother’s ongoing denial of her significant mental
health concerns, would not have made reunification of this family more
likely. As such, the juvenile court’s
decision was appropriate.
name="_ftnref9" title="">[9] (In
re Angel B. (2002) 97 Cal.App.4th 454, 463-464.)
court violate the law of the case doctrine as to minor V.R. III?
Mother’s
final contention is that the juvenile court’s denial of her section 388
petition must be reversed because it represents a material departure from this
court’s directions on remand in our earlier decision reversing the summary
denial of her petition. Specifically,
mother contends: “Because this court found the juvenile court abused its
discretion and reversed the lower court’s orders related to the denial of
Mother’s § 388 petition in A131611, all subsequent orders must also be
reversed including any order terminating Mother’s parental rights [as to V.R.
III]. Law of the case mandates that all
subsequent orders for [V.R. III] needed to be reversed and [mother’s] 388
petition needed to be considered as to [V.R. III].†(Citing Weisenburg
v. Cragholm (1971) 5 Cal.3d 892, 896; Gapusan
v. Jay (1998) 66 Cal.App.4th 734, 743.)
We
agree that, as a general matter, when an appellate court reverses an order of
the juvenile court, the case should return to the stage in which it was
before the wrongful order was entered.
(E.g., In re A.L. (2010) 190
Cal.App.4th 75, 77, 80 [when an order denying a section 388 petition was
reversed on appeal, it “necessarily vacated the [subsequent] section 366.26 hearing and the orders
from the hearing terminating parental rightsâ€]; In re Alexandria Y. (1996) 45 Cal.App.4th 1483, 1487, fn. 5.
[following appellate court reversal, “[t]he posture of the case was as if none
of the subsequent hearings had been heldâ€].)
As set forth above, “[e]ven after family reunification services are terminated and
the focus has shifted from returning the child to his parent’s custody, section
388 serves as an ‘escape mechanism’ to ensure that new evidence may be
considered before the actual, final
termination of parental rights. (Citation.)†(In re
Hunter S., supra, 142 Cal.App.4th at p. 1506 (italics added). As such, mother is correct to suggest
that “a fair hearing
on the section 388 petition [is] a procedural predicate to proceeding to the
section 366.26 hearing and disposition.â€
(In re Jeremy W. (1992)
3 Cal.App.4th 1407, 1416; see also In re Hashem H. (1996) 45 Cal.App.4th 1791, 1801
[“The court must first afford appellant a fair hearing on her alleged change of
circumstances before proceeding to the section 366.26 hearing and
dispositionâ€].)
In
this case, as mother points out, the juvenile court terminated her parental
rights as to V.R. III on November 7, 2011, after the juvenile court’s erroneous decision to summarily
deny her section 388 petition but before
the remand hearing on her petition. (See
January 4, 2012 reversal of the summary denial of mother’s section 388
petition, we affirmed the
November 7, 2011 order terminating mother’s parental rights as to V.R.
III. (In re
supra, A133847.) A month or so
later, on July 30, 2012, the remand hearing on the section 388 petition
was held.
As
this record reflects,
these dependency proceedings have had a long and convoluted history, with
numerous continuances and appeals halting its progression. Within this record, mother directs us
to no place indicating that she alerted the juvenile court to the need to
consider the impact of our January 4, 2012 reversal on the juvenile
court’s November 11, 2011 order terminating her parental rights as to V.R.
III. It is in this context that we must consider mother’s
new argument that our decision to reverse the summary denial of her section 388
petition and to remand for further proceedings required the juvenile court to
vacate all subsequent orders as to
V.R. III and S.R., including the order terminating parental rights as to V.R.
III that was ultimately affirmed by this court on appeal, thereby becoming
final. (See In re Kristin B. (1986) 187 Cal.App.3d 596, 603 [termination
of parental rights becomes final upon culmination of the appellate
process].)
Even
accepting for the sake of discussion mother’s argument, and disregarding her
failure to raise it below, we conclude under these circumstances any possible
error by the juvenile court in failing to ensure this matter reverted back to
its position at the time of our January 4, 2012 opinion must be deemed harmless.
of, numerous opportunities to present evidence and argue her case before her
section 388 petition was denied and her parental rights to V.R. III terminated. Mother has made no claim that the
remand hearing on her section 388 petition or the section 366.26 hearing that
resulted in termination of her parental rights as to V.R. III was unfair. Rather, in challenging the order terminating
her parental rights as to V.R. III, mother argued only that the evidentiary record could
not support a finding that V.R. III was likely to be adopted. (In re V.R., supra, A133847, at p. 12.) And, as discussed at length above, in
challenging the denial of her section 388 petition, mother now argues the
juvenile court’s ruling was an abuse of discretion because she proved by a
preponderance of the evidence that she had changed her circumstances. (See pp. 5-9 and fn. 9,
All the evidence required to consider these claims has been presented to
the court. As such, regardless of the
timing in which those orders were rendered, mother received all the due process
to which she was entitled in seeking to protect her parental rights, and no
further purpose would be served by remanding back to the juvenile court for
another rehearing. (See
re Angela C. (2002) 99
Cal.App.4th 389, 395 [although mother’s due process rights were violated
by lack of notice of the continued section 366.26 hearing resulting in
termination of her parental rights, the error was harmless given that she “had
notice of these dependency proceedings
from the outset, as well as the opportunity to be heardâ€]; In re Nina P. (1994) 26 Cal.App.4th 615, 622 [although the
juvenile court erred in granting a social worker’s request to change the
permanency plan despite the department’s failure to file a section 388
petition, the error was harmless because “[mother’s] due process rights were
not in any way compromisedâ€], overruled on other grounds in
Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882.
At
the same time, we are quick to note that sending mother’s section 388 petition
back once again on remand would likely harm the interests of V.R. III, placing
him in “legal limbo†and undermining the stability provided by his permanent
plan. (E.g., In re D.R. (2011) 193 Cal.App.4th 1494, 1513 [“[o]nce a case has
advanced to the permanency planning stage, it is important not only to seek an
appropriate permanent solution, but also to implement that solution promptly to
minimize the time the child is in legal limbo and to allow the child’s
caretakers to make a full emotional commitment to the childâ€];
398, 420 [while “
keeping parents and children together,†it “also recognizes the child’s
interest in a stable, permanent home (§ 366.25, subd. (a)), and has provided that
weight to a minor’s need for prompt resolution of his or her custody status,
the need to provide children with stable environments, and the damage to a
minor of prolonged temporary placements.’ (§ 352, subd. (a).)â€].) As such, we do not fault the juvenile court
for striving to give V.R. III a stable, permanent home as promptly as possible,
despite the ongoing litigation at both the trial and appellate levels,
particularly where mother has identified no harm suffered due to any failure by
the juvenile court to return the case to its previous posture once we reversed
the summary denial of her petition.
Mother, at all times represented by competent counsel, received full
evidentiary hearings before her section 388 petition was denied and her
parental rights to V.R. III terminated.
And, by now, mother has also received full appellate review of the
rulings. It is time to move on.
Accordingly,
we conclude mother’s challenges to the juvenile court’s order denying her
section 388 petition as to S.R. and V.R. III must fail.
DISPOSITION
The
juvenile court’s order is affirmed.
_________________________
Jenkins,
J.
We concur:
_________________________
Pollak, Acting P. J.
_________________________
Siggins, J.
name="_ftn1" title="">[1] Neither
V.R. nor the children’s father is a party to this appeal.
Unless otherwise stated, all statutory citations herein are to the
Welfare & Institutions Code.
