In re Aaron G.

Filed 4/10/07 In re Aaron G. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of San Diego County, Michael J. Imhoff, Commissioner. Affirmed.

Ann H., the mother of Aaron G., appeals the order denying her Welfare and Institutions Code^[1]section 388 petition, which sought termination of Aaron's guardianship and full custody of Aaron. Ann contends she met the statutory requirements of section 388.

FACTUAL BACKGROUND

Aaron lived with Ann during the first three years of his life in Philadelphia, Pennsylvania and later in San Diego. In 1999, Ann became "heavily involved in drugs," and was convicted of reckless endangerment after she started a fire in the family residence in Philadelphia. Aaron's father, who lived in San Diego, obtained custody of Aaron.^[2]

On March 11, 2002, police arrested Aaron's father on charges he raped and orally copulated one of his two stepdaughters. In the ensuing investigation, authorities learned that Aaron's father also physically abused his stepson.

On April 30, 2002, Aaron, then five years old, was removed from the care of his father and his stepmother. On May 2, the San Diego County Health and Human Services Agency (Agency) filed a dependency petition on behalf of Aaron, alleging he was at substantial risk of suffering serious physical harm inflicted nonaccidentally as a result of the excessive discipline inflicted upon his stepbrother by Aaron's father.^[3] ( 300, subd. (a).)^[4]

In August 2002, Ann wrote a letter to the court asking for information about Aaron's case. Ann related that she was incarcerated and was not able to write earlier. Ann maintained contact with the social worker and asked for legal representation in Aaron's dependency case.^[5] Ann also asked that the Philadelphia home of the maternal uncle be evaluated for possible placement of Aaron.

On November 12, 2002, the court ordered Agency to prepare a reunification plan for Ann and to initiate a home study of the maternal uncle's home under the Interstate Compact on the Placement of Children (ICPC).

On February 14, 2003, at the six-month review hearing, the court ordered six more months of services.

In May 2003, the social services agency in Philadelphia reported it could not approve an ICPC evaluation of the maternal uncle's home because the uncle was uncooperative.

On May 12, 2003, Ann was released from prison. She immediately enrolled in the Womanspace residential rehabilitation facility.

In July 2003, Agency recommended Aaron be placed with a paternal aunt in Louisiana. The aunt's home had been approved in an ICPC evaluation.

The social worker also reported that Ann was making good progress at the Womanspace treatment program. Ann also was trying to become involved in Aaron's life; she sent him books with notes saying she loved him very much and was working very hard to reunify with him. According to the social worker, Aaron was "only casually receptive to his mother's involvement."

On July 28, 2003, at the 12-month review hearing, the court found Ann had made substantive progress with the provisions of her case plan but minimal progress in alleviating the causes that led to Aaron's placement in foster care. The court placed Aaron with his paternal aunt in Louisiana. The court ordered six more months of services.

By October 2003, Aaron was comfortable living with his paternal aunt in Louisiana. Aaron told the social worker that he wanted to remain in his aunt's house "until he gets married."

Ann continued to make good progress at Womanspace. She completed a parenting class and an anger management class, and underwent a psychological evaluation. Ann also regularly participated in therapy as well as Alcoholic Anonymous (AA) or Narcotics Anonymous (NA) meetings. In October, Ann wrote to the court and expressed her desire to have Aaron returned to her care.

On December 9, 2003, at the 18-month permanency planning hearing, the court found returning Aaron to parental custody would be detrimental for him. The court terminated reunification services and set a section 366.26 hearing. The court also ordered an ICPC evaluation for Ann in her Philadelphia program.

According to Agency's adoption assessment report, Aaron, then seven years old, was in the second grade and performing at grade level. Ann had not had face-to-face contact with him for approximately four years. When the social worker asked him about Ann, Aaron "was at a loss for words." Aaron said he wanted to remain with his paternal aunt on a permanent basis. Aaron was bonded with his aunt and felt safe in her home. The aunt indicated she wanted to adopt Aaron but was willing to accept a guardianship. Agency requested a continuance to explore adoption by the paternal aunt.

Ann continued doing well in her services, completed job training, and obtained a job. Ann continued to maintain telephone contact with Aaron and send him packages and gifts. The social worker did not believe there was a bond between Aaron and Ann.

In August 2004, the ICPC evaluation of Ann's home in the residential treatment program was denied. The following month, Ann moved to a transitional housing facility, which was one step closer to independent living. The social worker reported Ann continued to show steady progress in her substance abuse treatment and in her efforts toward independent living.

On January 28, 2005, Ann filed a petition for modification under section 388. As changed circumstances, the petition alleged that Ann had been sober, law abiding and living a healthy lifestyle, and had stable housing. Ann telephoned Aaron many times each week, wrote him letters, sent him clothing and toys, and kept up with his school performance and his health.

Also in January 2005, Ann traveled to Louisiana and visited Aaron. The aunt reported that over all it was a good first visit, but Ann appeared too "pushy" by hovering around Aaron, who did not want that. When asked about the visit, Aaron told the social worker it felt "very new" and Ann looked different. When asked if he wanted her to visit again, Aaron responded, "she did say she might come again." Aaron also said that it was all right if Ann visited again. The aunt agreed to a plan of guardianship.

The following month, Agency changed its previous recommendation of terminating parental rights to a permanent plan of guardianship. The social worker explained this would allow Aaron to remain with his paternal aunt and allow Ann time to establish a stronger relationship with Aaron, which might enable him to reunify with her.

On March 1, 2005, Ann withdrew her section 388 petition without prejudice. The court appointed the aunt Aaron's legal guardian.

On February 17, 2006, Ann filed another section 388 petition for modification, seeking termination of the guardianship and full custody of Aaron. As changed circumstances, the petition alleged that Ann had a home, income and had been sober for at least five years. Ann kept in contact with Aaron by telephone and face-to-face visits. Ann also provided financing for Aaron by reimbursing San Diego County and sending child support payments to the aunt. Ann was enrolled in computer classes and studying at a Bible Institute for a theological degree.

Ann's medical evaluation indicated she was "mentally stable with adequate insight and judgment [and was] "able to care for [her] son." The evaluation also reported Ann had no physical, mental or emotional condition that would adversely affect her ability to raise Aaron.

The paternal aunt opposed Ann's request for modification and told the social worker that she was "going to keep Aaron safe no matter what." Aaron was distressed and fearful when the social worker discussed his parents. Aaron wanted to live with his aunt. According to the aunt, Aaron said he did not want to live with Ann because "she might kill him," explaining that "people on drugs kill people." Aaron's father had told Aaron that the reason Ann went to prison was Ann had tried to set the house on fire while Aaron was inside, and Aaron never forgot his father's statement. Aaron told the social worker he wanted to live with his aunt because "she understands me and she gives me a chance and I'm happy here." Asked if he wanted to visit Ann in her home, Aaron replied: "Maybe when I grow up."

On March 13, 2006, the juvenile court reacquired jurisdiction to hear the section 388 petition.

At the section 388 hearing on August 24, 2006, Ann testified by telephone that she was released from prison in 2003 and had turned her life around since then. Since November 2005, Ann had been living independently. Ann said her communication with Aaron had improved after the guardianship was implemented. Ann wrote to Aaron, telephoned him, paid child support for him, and visited him by traveling to Louisiana. Ann saw Aaron at least five times since March 2005. Ann also testified that she was unaware that Aaron was afraid of her. Aaron did not seem to be afraid of her during their visits.

Ann believed it was best for Aaron to live with her because she was his biological mother and they loved each other. Ann testified Aaron needed nurturing from her so they could continue to bond. If Aaron was returned to her custody, he would have his own room and she would help him with his schoolwork. Ann also would take Aaron to family therapy and arrange for him to be in social groups and involved in after-school programs. Ann testified she would move to Louisiana if that was necessary for her to have Aaron in her life.

Social worker Katherine Toppin testified that Aaron continued to want to live with the paternal aunt. Toppin said she did not specifically recall Aaron telling her that he was afraid of Ann; however, she recalled the aunt telling her about Aaron's statements indicating his fear.

At the conclusion of the hearing, the court found Ann had demonstrated changed circumstances, but had not shown that it was in Aaron's best interest to terminate the guardianship and place Aaron with Ann. The court denied Ann's section 388 petition.

DISCUSSION

Ann contends she met the statutory requirements of section 388 and, therefore, the juvenile court erred by denying her modification petition. The contention is without merit.

Under section 388, a parent may petition the court to change, modify, or set aside a previous court order on the grounds of changed circumstances or new evidence. ( 388, subd. (a).) The petition shall set forth why the requested modification is in the best interests of the dependent child. ( 388, subd. (b)(4).)

The parent bears the burden of showing both a change of circumstances exists and that the proposed change is in the child's best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47, italics added.) The juvenile court may consider the entire factual and procedural history of the case in considering a section 388 petition. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)

Rulings on section 388 motions are reviewed for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) " 'The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.' [Citations.]" (Id. at pp. 318-319.) An order on a section 388 motion will not be disturbed on appeal unless the court has exceeded the bounds of reason by making an ". . . 'arbitrary, capricious, or patently absurd determination' . . . ." (Id. at p. 318.)

The court found, and Agency does not dispute, that Ann met the first prong of section 388 by showing changed circumstances. There was substantial evidence supporting the allegation of changed circumstances. Ann had a home, income and had been sober for at least five years. Ann kept in contact with Aaron with letters, by telephone and through face-to-face visits. Indeed, Ann had turned her life around since she was released from prison. It cannot be disputed that Ann's efforts and success in this regard are commendable and admirable.

At issue, therefore, is only the second prong of section 388: whether Ann's request to terminate the guardianship and return Aaron to her custody was in the best interests of Aaron.

To establish the best interests prong of section 388 becomes more difficult after reunification services have been terminated because at that point the focus shifts from the goal of reunification to the goal of providing stability and continuity for the child. (In re Stephanie M., supra, 7 Cal.4th at p. 317; In re Marilyn H. (1993) 5 Cal.4th 295, 309.) "A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interest of the child." (In re Stephanie M., supra, at p. 317.)

We find substantial evidence supported the juvenile court's finding that termination of the guardianship and returning Aaron to Ann's custody would not promote Aaron's best interests. Accordingly, the court acted well within its discretion by denying the section 388 motion. (In re Stephanie M., supra, 7 Cal.4th at pp. 317, 321.)

The record contains ample support for continuing the guardianship. Aaron was 10 years old at the time of the section 388 hearing. Aaron had lived the first three years of his life with Ann, but after that, he had no contact with her for four years until she started sending him packages by mail. It was not until 2005 that Aaron and Ann had face-to-face contact; he was eight years old at the time. Considering this history, it is not surprising that Aaron said the visit felt "very new" and Ann looked different.

Since he was placed in his paternal aunt's home three years earlier, Aaron's position had never changed, he wanted to continue living with his aunt. Aaron said he wanted to live in his aunt's home until he was married. Asked why he wanted to remain there, Aaron said his aunt "understands me and she gives me a chance and I'm happy here." It was well within the court's discretion to consider Aaron's wishes and the obvious stability he enjoyed under the aunt's guardianship.

Moreover, Aaron's feelings toward Ann were ambivalent at best. By the time of the section 388 hearing, Aaron wanted his visits with Ann to continue in Louisiana, but he did not want to visit her in Pennsylvania until he was an adult. Moreover, Aaron was adamant in his desire to continue living with his paternal aunt. This is not an insignificant factor. (See In re Michael D. (1996) 51 Cal.App.4th 1074, 1086-1088 [child testified he wanted to live with his mother rather than with guardian].)

Although Ann has tried, both at the trial and appellate levels, to discount Aaron's fear of her, the juvenile court, sitting as trier of fact, was in the best position to determine whether Aaron's fear was real. As an appellate court, we do not reweigh the evidence; if there is substantial evidence supporting the lower court's factual findings, we accept them. Here, there was substantial evidence that Aaron continued to fear his mother because of her drug history and her attempt to set the family residence on fire. Ann's testimony that she was unaware of Aaron's fear did not establish that Aaron did not have this fear. Rather, it more likely indicated that Ann had not yet demonstrated an understanding of her son's emotional problems because of his past history of instability until he was placed in the paternal aunt's home.

Five visits after no contact for four years is not sufficient to establish a bond between a mother and her young son. Uprooting Aaron again, was not in his best interest at the time of the postpermanency section 388 hearing, when the focus must be on Aaron's stability and continuity. Aaron was doing well residing in the guardian's home, where he had lived since August 2003, and was happy there. There was no indication of any difficulties between Ann and the guardian. The court did not abuse its discretion by denying Ann's section 388 petition.

Ann relies on In re Kimberly F. (1997) 56 Cal.App.4th 519, 532 (Kimberly F.) and its three-part test for analyzing the "best interests" requirement of a section 388 petition:

"(1) the 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." (Ibid.)

The reliance is misplaced because Ann cannot prevail under the three-part test set forth in Kimberly F.

The problem that led to Aaron's dependency was his father's sexual and physical abuse of Aaron's stepsiblings, which was no longer at issue at the time of the section 388 hearing because the father had removed himself from Aaron's life. However, the reason Aaron was in his father's custody was Ann's substance abuse, her attempt to set the family residence on fire and her subsequent incarcerations. Thus, the seriousness of the problems that led to Aaron's dependency were patent.

Regarding the second KimberlyF. factor, Aaron had a moderate bond with Ann as evidenced by his willingness to continue having visits with her in a safe location. However, Ann's bond with Aaron was dwarfed by the bond between the paternal aunt and Aaron. Moreover, Aaron viewed the paternal aunt - not Ann - as his parental figure.

The third factor under Kimberly F. is the only one that Ann can arguably prevail on. Ann had ameliorated problems - drug abuse and criminal behavior - that contributed to Aaron's dependency. One out of three Kimberly F. factors does not demonstrate the child's best interests would be served by granting the petition.

DISPOSITION

The order is affirmed.

BENKE, Acting P. J.

WE CONCUR:

HUFFMAN, J.

HALLER, J.

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^[1] All statutory references are to the Welfare and Institutions Code.

^[2] Aaron's father is not a party to this appeal and will be referred to only when it is relevant to this appeal.

^[3] Agency also filed dependency petitions on behalf of Aaron's stepbrother and his two stepsisters. Aaron's father is not the biological father of Aaron's stepsiblings; the stepsiblings are the children of the stepmother from previous relationships. Aaron's stepsiblings are not subjects of this appeal.

^[4] In August, Agency received further police reports that indicated Aaron's father had made inculpatory statements regarding the sexual molestation of his stepdaughter. On September 5, Agency filed a subsequent petition ( 342) on behalf of the stepdaughter, alleging that Aaron's father had sexually abused her.

^[5] On August 26, the court appointed counsel for Ann.