In re Paige F.

Filed 6/25/07 In re Paige F. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a postjudgment order of the Superior Court of Orange County, Carolyn Kirkwood, Judge. Affirmed.

Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant Cindy L.

Linda Rehm, under appointment by the Court of Appeal, for Defendant and Respondent Shawn F.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Paula A. Whaley, Deputy County Counsels, for Plaintiff and Respondent Orange County Social Services Agency.

* * *

Paige F.s mother filed a Welfare and Institutions Code section 388[1] petition asking the court to change its order refusing to mandate a bonding study. The court denied mothers petition without a full evidentiary hearing. On appeal mother contends her petition presented evidence of changed circumstances and that ordering a bonding study would serve Paiges best interests, and therefore the court erred by summarily denying it. We disagree and affirm the courts order denying mothers petition.

FACTS

At age five, Paige was declared a dependent child based on findings that mother physically and emotionally harmed Paige, failed to protect her, abused alcohol, and engaged in domestic violence with father. Paige is now 11 years old. The facts and court proceedings in this case through the December 2005 twelve-month review are discussed in detail in two unpublished opinions of this court, of which we take judicial notice. (In re Paige F. (Mar. 10, 2006, G035784) [nonpub. opn.]; In re Paige F. (Apr. 4, 2006, G036521) [nonpub. opn.].) We therefore recite only the facts and procedure relevant to mothers appeal of the denial of her section 388 petition, except to note that at the December 2005 twelve-month review hearing, the court, inter alia, denied mothers request for renewed reunification services, limited mothers visitation to one monitored visit per month, and scheduled a section 366.26 hearing (.26 hearing) to select an alternative permanent plan for Paige.

Also at the December 2005 twelve-month review hearing, the court denied mothers first request for a bonding study. The court found the potential probative value of a bonding study to be very low and stated that even if a bonding study indicated Paige had significant attachment to her mother, its clear from the evidence for all of the reasons I have articulated that attachment is not in the best interest of the child.[2] Regarding mothers ability to see Paige for who she is, the court stated: Mother has a romanticized or fictional view of the child and does not see Paige for who she is. [] Likewise, Paige is very attached to the idea of a mother. The court further found that it may very well be detrimental to this child to go through yet [another] examination of this sort and that a bonding study would be a waste of time and assets.

In April 2006, Paige wrote the following letter to mother: Dear Mommy, If I get adopted, just remember I love you. Dont cry, I will visit you all the time. I might want my stuff from your house, but keep some things for you to think about me all the time. I am worried because I would rather not live with someone I dont love as much as I love you. I love you so so so much. Remember that. You have been so wonderful to me. Thanks for all the things you have done for me. I am so so sorry for not doing anything for you. Dont worry I will do some [sic] so big back. Love you. Paige.

The social workers report for the initial .26 hearing stated: The child continues to do well. The note written to her mother is indicative of her conflict about being adopted. Being adopted is an unknown experience, and therefore, frightening. In addition, the child seems to have a need to protect her mothers feelings and emotions. . . .  [] The undersigned continues to believe that the child can and will be adopted and that once placed, she will be able to work through her anxiety and fears. Anxiety is most likely going to remain a fact of life for this child. She is making great progress, as evidenced by her ability to successfully transition to public school. Her report card illustrates how well she has done. The child still has her struggles. She continues to work on peer relationships and interactions. She continues to attend therapy and take medication to manage her anxiety and impulses.

At the May 2006 initial .26 hearing, the court found (1) termination of parental rights would not be detrimental to Paige, but no adoptive parent had yet been identified, and (2) adoption was the permanent placement goal. The court did not terminate any parental rights and scheduled a .26 hearing for November 6, 2006. The court denied mothers renewed request for a bonding study, noting it had denied such a request for detailed reasons on December 19, 2005. The court stated: It appears to this court that nothing has changed that would warrant a bonding study and, in fact, that it would be detrimental to this child. The court notes that the child remains parentified, to a certain extent, overly concerned about her mothers feelings, feeling overly responsible for her mothers pain and that is not healthy for this child. So the court is going to deny the bonding study for those reasons and for the reasons articulated on December 19th, 2005.

Prior to the November 2006 .26 hearing, the social worker reported Paige was living in a prospective adoptive home where she had flourished. Paige spoke of her desire to be adopted and live with this family forever. She was doing well academically and behaviorally in public school, and was also taking dance lessons. But after two visits with mother, Paige had come back agitated and had difficulty settling down completely for up to two weeks. At the end of their October visit, mother told Paige, [T]his might be the last time I see you again, to which Paige replied, [N]o, Ill bug you still, dont worry, Mom. After a visit with her maternal grandmother, Paige returned to the house crying, stating that her grandma had no one but her. The grandmother wrote Paige a letter encouraging her to pray for a miracle. Meanwhile, after a long absence from Paiges life, father tried to make contact with her and stated he would fight to have the child returned to him. Father asked the social worker why Orange County Social Services Agency (SSA) had not considered placing Paige with fathers mother. The social worker replied that the paternal grandmother had stated she and her husband did not think they could manage the child.[3]

At the .26 hearing on November 7, 2006, the court continued the hearing at mothers request to December 6, 2006. SSA asked the court under section 388 to suspend mothers visits with Paige, alleging, inter alia, that mother has a history of acting inappropriately during visits and sabotaging attempts to provide permanency. The court suspended visitation between mother and Paige pending the .26 hearing in December.

On November 17, 2006, mother petitioned the court under section 388 to change its December 2005 order denying her request for a bonding study. Mother contended that circumstances had changed since the December order because Paige was now in a potential adoptive home. Mother asserted that a bonding study would benefit Paige because [t]here is a potential for great harm to the child as the mother has maintained regular visitation and contact with the child and the child has expressed a desire to have more contact and/or be returned to her mothers care.

That same day, pursuant to the parties stipulation, the court proceed[ed] on [the] prima facie showing portion of [mothers section] 388 motion and heard argument from mothers counsel who stated that mother raised Paige for the childs first five years years which are critical to bonding and that mother had consistently visited Paige since then. Mothers counsel also argued that Paige has stated she wants to live with her mother, father or some relative, is affectionate toward mother, and acknowledges she loves mother, and that mother acknowledges she loves Paige. The court found mother failed to make a prima facie showing of changed circumstances or of Paiges best interests so as to warrant a full evidentiary hearing on the section 388 petition. The court explained it denied mothers bonding study request in December 2005 after a lengthy hearing and finding the potential probative value of a bonding study to be very low. The court incorporated by reference all the reasons it articulated in December 2005 for concluding that even if Paige had a significant attachment to mother, such an attachment would not be in Paiges best interests, and that it might be detrimental to Paige to go through yet another examination . . . that a bonding study requires. The court further noted that minors and mothers contact has been significantly restricted even [sic] since the time the court . . . denie[d] the request for [a] bonding study [in December 2005].

DISCUSSION

Mother argues the juvenile court believes that both Paige and Mother have romanticized views of each other, and that when Paige tells the court she loves Mother and wishes to return to her care, Paige is saying what Mother wants her to say. Mother concludes the juvenile court misapprehends the complex relationship between Paige and Mother and would benefit from the valuable information provided by a bonding study as to the bond Paige shares with Mother, and whether it will be detrimental to Paige to sever or minimize that bond. Mother contends she presented evidence of changed circumstances and that it is in Paiges best interest to grant mothers petition, and therefore the court erred when it denied mother a full hearing.

Section 388, subdivision (a) provides: Any parent [of] a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made . . . . Subdivision (c) states: If 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 . . . . ( 388, subd. (c).)

Thus, in order to succeed on a section 388 petition, the petitioner must establish 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. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806, italics added.) A parent need only make a prima facie showing of these elements to trigger the right to a hearing on a section 388 petition and the petition should be liberally construed in favor of granting a hearing to consider the parents request. [Citation.] [] However, if the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. [Citations.] The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition. (Ibid., italics added.) The petition may not be conclusory. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) An appellate court reviews a juvenile courts summary denial of a section 388 petition for abuse of discretion. (Ibid.)

Mother relies on In re Jeremy W. (1992) 3 Cal.App.4th 1407, apparently for the proposition that a parent need only show a change of circumstance or new evidence to trigger the requirement for a full hearing. (Id. at p. 1414.) But that case also states: Thus, if the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing. (Ibid.) Section 388, subdivision (a) is clear: Only if the parent shows a change of circumstance or new evidence and the childs best interests may be promoted by the proposed change of order, is the court required to conduct a full hearing. Case law interpreting the statute clarifies that the required showing is a prima facie one. (In re Zachary G., supra, 77 Cal.App.4th at p. 806.)

Mother asserts her petition on its face presented evidence it was in Paiges best interests to order the bonding study because mother has maintained regular visitation and contact with Paige, Paige has expressed a desire to have more contact and/or be returned to her mothers care, and therefore Paige might be greatly harmed if their bond is severed.

We address first mothers contention her history of regular visitation with Paige constitutes evidence that a bonding study would serve Paiges best interests. The court found just the opposite, i.e. that the history of mothers visitation with Paige showed that a bonding study was not in Paiges best interests and might in fact be detrimental to her. The court did not abuse its discretion by making that finding. Visits with mother often caused Paige to suffer anxiety, stress, and guilt, both before and after visitation. During visits, mother often made inappropriate or manipulative comments, particularly when she told Paige the October visit might be their last. These ongoing problems finally culminated in the court suspending mothers visits with Paige pending the December 2006 .26 hearing.

The only other evidence mother offers to show that a bonding study would benefit Paige are the childs statements under oath that she wishes to live with Mother and Paiges declaration that even if she were adopted, she would continue to love Mother. But mother agrees that Paiges statements cannot necessarily be taken at face value because the child has learned to say and do what is expected of her by the person inquiring of her and frequently lies, distorting the truth to match the truth that she believes her audience seeks of her. Moreover, even if Paige truly meant what she said, the court emphasized that a significant bond between mother and Paige would not serve Paiges best interests. This conclusion by the court was based on voluminous evidence, including many days of witness testimony, and the many reasons articulated by the court. (See, eg., fn. 2, ante.) There was no abuse of discretion here.

To further support her contention a bonding study would serve Paiges best interests, Mother recites facts that occurred after November 17, 2006 (the date the court denied mothers section 388 petition), but those subsequent events can have no effect on our review (In re Heather P. (1989) 209 Cal.App.3d 886, 889, fn. 6), nor did mother file a Code of Civil Procedure section 909 motion for this court to consider postjudgment evidence.

Mother relies on In re Lorenzo C. (1997) 54 Cal.App.4th 1330, but that case did not involve a section 388 petition. She also cites In re Richard C. (1998) 68 Cal.App.4th 1191, 1197, but that case stated a juvenile court has discretion to order a bonding study late in the process under compelling circumstances. There are no compelling circumstances here.

Because mother failed to show a bonding study would serve Paiges best interests, we need not determine whether she made a prima facie showing of changed circumstances or new evidence.

DISPOSITION

The courts order denying mothers section 388 petition is affirmed.

IKOLA, J.

WE CONCUR:

OLEARY, ACTING P. J.

MOORE, J.

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[1] All statutory references are to the Welfare and Institutions Code unless otherwise stated.

[2] At the 12-month review hearing, the court articulated at length the reasons for its rulings: In a meticulous recitation of factual findings that extends to 26 pages of the reporters transcript preceding its formal orders, the court set forth a detailed analysis of the testimony and an appraisal of witness credibility and the weight to be accorded certain evidence in conflict. (In re Paige F. (Apr. 4, 2006, G036521) [nonpub. opn.] at p. 4.)

[3] Father filed a respondents brief in this appeal, essentially adopting SSAs briefing, but clarifying he in no way intends to pave the way for termination of either parents parental rights, nor does he agree to Paiges being adopted by a non-relative third party.