Michelle S. v. Superior Court

Filed 9/4/07 Michelle S. v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Christian F. Thierbach, Judge. Petition denied.

Dawn Shipley for Petitioner.

No appearance for Respondent.

No appearance for Real Party in Interest.

STATEMENT OF FACTS

This petition involves minors G.S. (born in 2003) and his older half brother, N.A. (born in 1991). G.S. and N.A. first became the subject of referrals to the Riverside County Department of Public Social Services (department) in late 2003. Michelle S. (mother) had given birth to six children, but had custody of only three. She was living in a relatives garage without gas or electricity and she was on medication for bipolar disorder. Before being discharged from the hospital, following the birth of G.S., she had panic attacks and attempted to remove intravenous needles. She failed to make arrangements for needed follow-up care for G.S., who was born prematurely.

Mother reported a history of domestic violence with several male partners. She told the social worker that although G.S.s father had not physically abused her, I guarantee he will in the future . . . another couple of times the object he hits will be me. She indicated that G.S.s father went after N.A. on one occasion, but he didnt get the chance. Mother also stated that [t]he kids have seen a lot of domestic violence and I wanted them to have a father but I always had bad situations. A 15-year-old son was sent to Kansas by me because I was supposed to be joining him but more things happened. Two other children were in the custody of their father.

In an uncontested proceeding, the court took jurisdiction over G.S. and N.A. on April 8, 2004. A week earlier, a temporary restraining order had been issued against G.S.s father. On May 6, 2004, the court approved a 28-day visit to Kansas for mother and the children (mother had lost her current, temporary residence).

Mothers visit to Kansas extended into July 2004, although she informed the social worker that G.S.s father was in the area and that he continues to terrorize her and the children. Mother did, however, also report that she was seeking mental health treatment, medication, and local housing assistance, as well as participating in a domestic violence program.

Despite this, and despite the stay away order, mother maintained contact with G.S.s father. Unfortunately, mother had become involved with Dane, with whom she had an extremely passionate, if brief, relationship. According to mother, G.S.s father came to her home while she was attempting to breakup with Dane. As they talked, G.S.s father demanded to know what mother saw in Dane, and mother finally told him, [L]ook at him. Hes got the kind of body I have always wanted in a man. Not surprisingly, a fight eventually broke out between G.S.s father and Dane, involving biting, punching, and shattered glass. As mother tried to separate the two men, Dane was brandishing knives, and stabbed or cut both her and G.S.s father. When this incident came to the departments attention, the minors were ordered returned to California and placed in foster care. Mother remained in Kansas.

By June 2005, the department was recommending that services be terminated as to mother. Mother was refusing to move back to California and continued to make unfounded accusations of violence against N.A.s father. She threatened to go on Oprah and told the social worker that her case could go to the Supreme Court. On June 8, 2005, the court terminated services. It later terminated the dependency while establishing a legal guardianship for the two boys with the foster parents as guardians.

In January 2007 -- over two years from the time G.S. and N.A. were returned from Kansas and placed in foster care -- mother filed a request for modification (Welf. & Inst. Code, 388) seeking to have the guardianship terminated and the minors returned to her. Mother alleged that she had moved back to California in October 2006 and obtained suitable housing and . . . gainful employment. She also claimed that the foster parents were not cooperating with her visitation.^[1] In an attached statement, she asserted that her family had always been tight-knit and requested that G.S. be permitted to participate in grand family traditions and experiences that all his siblings have enjoyed.

The department opposed the request. The social workers report reflected that mother had married, and that she and her husband were employed managing a self-storage facility, which included living quarters. She reported three meetings or interviews with mother, at two of which mother appeared excited or angry and made accusations against other persons, including N.A.s father and various court or department personnel. She was no longer taking mental health medications, although she gave inconsistent statements as to whether or not this was at her doctors recommendation. She told the social worker that she had been involved in domestic violence counseling, but she did not provide any information concerning possible progress.

N.A.s guardian told the social worker that his behavior had deteriorated rapidly after mother gave him a cell phone (without his guardians consent) and that she bought him Gothic clothing. N.A.s fathers relatives told the social worker that mother was a bad influence on her children and failed to set appropriate limits.

N.A.s father had a good job and a stable home with N.As three half siblings.^[2] He expressed the view that, due to mothers failures, N.A. had become parentified to some extent with respect to G.S.: [H]e was carrying total responsibility for [G.S.] He was always worried. He was like the father of the little boy. It was sad to watch him because of what [sic] the mothers mistake. After the guardian permitted N.A. to live with his father, N.A.s behavior improved. At the time of the social workers last report, N.A. was attending school and working part time. N.A.s father placed great stress on education, but also wanted N.A. to have a normal sixteen year[] old[s] life.

Although the report was not clear, it is evident that mother had at least some visits with G.S. and that she behaved appropriately; however, the child did not recognize her as his mother. N.A. told the social worker that although his mother was a good person, he wished to remain with his father.^[3]

At the hearing, mother testified concerning the unsuitability of N.A.s father as a custodial parent. She testified that he was manipulative and violent, and that in 1983 he had been arrested for unlawful sexual intercourse and that numerous illegal weaponry had been found in his truck.^[4] However, on cross-examination, the departments attorney indicated that N.A.s father had no criminal history. Mother did not testify on the merits of her request with respect to G.S., but the parties agreed that her declaration attached to the modification request would be admitted.

The trial court denied mothers request. Instead, at the request of the department, it reinstituted the dependency as to G.S. and set a hearing pursuant to Welfare and Institutions Code section 366.26. It terminated the dependency with respect to N.A. and gave custody to N.A.s father.

In this petition, mother contends that the court erred in denying her request because she had established that her circumstances had changed for the better and that the minors would be better off with her.

DISCUSSION

A request that the juvenile court change or modify an order depends on two factors: First, that the parent (or other party) show change of circumstance or new evidence; and second, that the moving party establish that a change in the order would serve the best interests of the child. The decision rests within the sound discretion of the trial court. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) The factors to be considered may include the seriousness of the reasons for the dependency; the reason the problem(s) was (were) not overcome; the strength of the parent-child bond and the length of time the child has been in the system; the nature of the change in circumstances; and the reasons why the change could not have been achieved sooner. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446-447.) Once reunification services have been terminated, a parents interest in his or her relationship with the minor is no longer the most important factor. Rather, it is the childs need for permanence and stability that comes to the fore, and there is a rebuttable presumption that continued foster care (or guardianship) is the best plan for the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)

In this case, it is true, as mother asserts, that she did show at least some changed circumstances from the time the dependency was initiated. She had employment and adequate housing. She had remarried and the record does not reflect any suspicion of domestic violence in the marriage. These changes, however, did not demonstrate that the fundamental problems, which triggered the dependency, had been corrected.

At the time the dependency began, mother had a long history of chaotic relationships and, in her own words, bad situations. She admitted that her children were repeatedly exposed to the consequences of her own abusive relationships and that she knew that these relationships put her children at risk. (N.A. had apparently been at least physically threatened by G.S.s father.) Her request for modification did not address these issues and she provided no evidence concerning her possible progress. To the extent that her mental health issues impacted her ability to provide a safe home for the minors, these issues also remained unresolved due to her decision to stop taking her medication and the lack of clarity concerning the medical justification for this decision. Although it is to be hoped that her current marriage will prove to be stable and nonviolent, the trial court was not obliged to assume that this would be the case. We note that when mother was permitted to return to Kansas with G.S. and N.A., she had herself provided the information that led to a restraining order against G.S.s father. Nevertheless, she allowed him into her home; worse yet, whether consciously or not, she stirred up a confrontation between this violent man and her current boyfriend. We have no doubt that the risk that the minors would be exposed to additional violence, if returned to mothers custody, remains substantial.

No other factor bears strongly in favor of a conclusion that the best interests of either minor required placement with mother. The only evidence concerning bonding tended to show that G.S. was not aware of the mother-child relationship. To a large extent, this is attributable to mothers failure to return to California until well over a year after the two boys were brought back to this state. Her decision not to accompany them is not adequately explained in the record; in other words, mother did not explain why that change could not have been made sooner. It is axiomatic that [t]he reality is that childhood is brief; it does not wait while a parent rehabilitates himself or herself. The nurturing required must be given by someone, at the time the child needs it, not when the parent is ready to give it. (In re Debra M. (1987) 189 Cal.App.3d 1032, 1038.) As for N.A., there was substantial evidence that mothers contacts led to deterioration in his behavior. Furthermore, N.A. had expressed to the social worker a wish to remain with his father. At 17 years of age, he was capable of expressing a valid preference. We also note that mothers claims that N.A.s father was abusive were unsubstantiated.

We do acknowledge that the record appears to indicate that mother is capable of providing adequate care for her children when her mental condition is stable and when she is not involved in a negative relationship. However, mother failed to carry her burden of showing the changes she had made meant that G.S. could safely be returned to her custody. Even if her showing in that respect had been adequate, she failed to show that a change would be in his best interests.

DISPOSITION

The petition for writ of mandate is denied.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

J.

We concur:

RAMIREZ

P.J.

GAUT

J.

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^[1] About the same time, the foster parents also filed a request to have the guardianship terminated as to N.A. because, according to them, mother had incited him to resent their role.

^[2] It is not clear whether N.A.s father is currently married.

^[3] Mother asserts in the petition that the attorney appointed for N.A. told the court that he wanted to live with her. It is true that at the date originally set for the hearing on mothers request, N.A.s counsel made such a representation. However, when the matter was later heard on the merits, she submitted on the departments recommendation, which was that N.A. should live with his father. Thus, there is no actual evidence of N.As wishes contrary to the statement reported by the social worker.

^[4] Among the weapons were an oozy and an AK-47.