Filed 7/25/17 In re Amber H. CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re AMBER H., a Person Coming Under the Juvenile Court Law.

FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES,

Plaintiff and Respondent,

v.

J.T.,

Defendant and Appellant.

F074623

(Super. Ct. No. 13CEJ300307-1)


OPINION

APPEAL from an order of the Superior Court of Fresno County. Gary L. Green, Commissioner.
Kristin Bryce Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
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J.T. (mother) appeals from an order denying her request for an evidentiary hearing pursuant to her Welfare and Institutions Code section 388 petition, by which she sought to reinstate visitation with her daughter, Amber H. She contends the juvenile court erred by denying the petition without a hearing. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
When this dependency proceeding was initiated in May 2015, then 12-year-old Amber had been living with her father, Carl, and his wife for approximately two years. Prior to that, she lived with mother, her two sisters, A.H. and Autumn, and mother’s husband, Reuben. Carl successfully petitioned for sole legal and physical custody of Amber in January 2013, after mother, who was an alcoholic, began drinking heavily. Amber, however, had difficulty with the change in custody and wanted to return to mother. She fought and argued with her stepmother and threatened to harm both her stepmother and Carl, as well as herself. In March 2013, a psychiatrist evaluated Amber, diagnosed her with mental illness and prescribed medication. In May 2015, after she took a knife to school, she was diagnosed with bipolar disorder and was involuntarily hospitalized.
In May 2015, the Fresno County Department of Social Services (Department) removed Amber from Carl’s custody and placed her in foster care after she physically attacked her stepmother and admitted she had thoughts of killing her. The Department filed a petition alleging Amber came within the provisions of section 300, subdivisions (b) (failure to protect) and (c) (serious emotional damage), based on father’s inability to stabilize Amber’s behavior and provide an alternative plan of care. The juvenile court ordered Amber be detained. The juvenile court also ordered the Department to (1) assess mother and Carl for placement, (2) offer Carl services, and (3) offer mother and Carl visitation to include therapeutic supervised visits.
Mother was living in Kings County and receiving services to reunify with A.H. and Autumn, who were removed from her custody in November 2014 because she failed to protect them from Reuben, who sexually molested and raped A.H. Mother’s services in Kings County included completing a mental health assessment and any recommended treatment, a parenting class, substance abuse treatment, random drug testing, and participating in AA/NA classes. Mother had not seen Amber since December 2014, but communicated with her by telephone and through social media. In June 2015, mother and Amber began therapeutic visitation supervised by Blanca Mejia, Psy.D.
The Department recommended against placing Amber in mother’s custody, as mother had a history of not following rules and laws that were put in place for the safety of her and her children. Mother had willfully chosen not to follow some of the orders of the Kings County and Fresno County courts, and she continued to display behaviors that were harmful to her children despite receiving services in Kings County. Mother had violated the juvenile court’s visitation order by communicating with Amber via Facebook and making unrealistic promises to her. The Department was concerned about mother’s seeming inability to follow court orders and understand the importance of the safety plans put in place.
In September 2015, the juvenile court exercised its dependency jurisdiction over Amber after Carl submitted on the petition’s allegations, removed Amber from Carl’s custody pursuant to section 361, subdivision (c)(1), found it would be detrimental to place Amber with mother, and ordered mother and Carl to participate in a plan of reunification. Mother’s services plan required her to participate in (1) parenting classes, (2) a mental health evaluation and any recommended treatment, along with family therapy or counseling with Amber; (3) evaluations for substance abuse and domestic violence, and to follow any recommended treatment, and (4) to receive weekly, supervised therapeutic visits, with discretion given to the Department to proceed to non-therapeutic weekly visits supervised by the Department or a third party. The court set the six-month review hearing for March 2016.
The Six-Month Review Hearing
In its report for the six-month review hearing, the Department reported that mother had completed her court-ordered services through Kings County, maintained her sobriety and successfully reunified with A.H. and Autumn. In addition, mother was participating in weekly visits with Amber, which the foster parents supervised, as well as monthly therapeutic supervised visits with therapist Lauri Andersen. Mother was not happy with the foster parents supervising visits, as she felt they were biased against her in favor of Carl. While mother suggested other possible supervisors, Amber staunchly refused to allow anyone else to supervise the visits, as she felt mother was attempting to “brain-wash” her against Carl and any supervisor mother chose would not accurately report about the visits and would side with mother.
The Department characterized mother’s prognosis for successful reunification as “guarded” because she refused to acknowledge her role in the Department’s involvement with her family and did not believe she acted inappropriately. Amber was proud of the progress she had made in therapy and was trying to set boundaries with mother, but she felt that mother did not respect her progress and was upset that she was happy in her foster home. Amber stated that mother had made her lie so many times that she did not trust herself around mother, as she did not believe she had the strength to confront mother about the lies. Amber’s therapist, Maria Romero, believed that returning Amber to mother’s custody would cause Amber to regress and could cause her to resume her self-harming behavior.
In March 2016, Amber, mother and Carl met with social workers, the foster parents, therapist Andersen, and the visitation supervisor to discuss visitation. Amber read a letter in which she stated she was struggling with anger toward her parents and asked that visits stop while she continued to work on herself in therapy. She shared that she was upset at the negative things mother said about her foster parents and that during visits, she felt mother accused the foster parents of siding with Carl. Mother and Carl agreed to a six-week suspension in visitation and to participate in collateral sessions with Maria Romero during that period. Several days later, mother sent the social worker an e-mail stating she was concerned the foster parent was interfering with the reunification process. She also texted Carl numerous times asking him to be a “team” and work together to get Amber back and prevent her from staying with the foster parents. Carl did not respond and showed the text messages to the social worker.
At the April 18 six-month review hearing, the juvenile court continued reunification services for both parents, after finding reasonable services had been provided to them. The court ordered that the parents’ collateral sessions continue with the goal of reaching conjoint sessions. The court set an interim review hearing for June to review visitation and the 12-month review hearing for July.
Visitation
On April 22, Amber, mother, and Carl met with the social workers and foster mother to discuss visitation. The social worker consulted with Amber’s therapist, Romero, who did not believe conjoint therapy was in Amber’s best interest at that time. Both parents insisted that visits with Amber resume, even though Amber was crying and did not want to visit them at that time. It was determined that visits would resume, as they were court-ordered, but both parents were told that Amber could refuse visits due to her age. The family would be referred to an agency for ongoing visitation supervision, as the foster parent would no longer supervise visits. Amber was scheduled to visit each parent separately on April 29 at the Department.
At the April 29 visits, Amber told each parent that this visit would be their last, as she did not want to give up her schooling, and she wanted to be a kid first and did not want to worry about her parents’ needs. After that, Amber refused to attend therapeutic visits with mother on May 20 and 27, as she was not willing to be pulled out of school.
On June 3, Amber attended a visit with mother supervised by Dr. Mejia, but she only stayed for 10 minutes. During that time, she expressed her frustration and anger toward mother. She told mother she wanted to discontinue visits, as she believed mother was trying to jeopardize her placement and create obstacles to her success in school. Amber accused mother of being involved in an incident regarding a letter Amber allegedly wrote accusing her foster parents of maltreatment. After Amber left the room, mother denied Amber’s accusations and told Dr. Mejia “Amber needs help.” Mother asked Dr. Mejia to work with Amber on an individual basis to help her with her “issues.” Mother did not take responsibility for some of the issues Amber raised and placed the focus on Amber’s mental health. In addition, mother “glorified” Dr. Mejia’s clinical skills in “an almost delusional manner.” Mother did not appear distressed or upset about Amber’s response and was unable to see her role in their relationship.
Dr. Mejia terminated the therapeutic supervised visits, since Amber was adamant about not wanting to visit mother and mother’s continued attempts to visit could further upset Amber. Dr. Mejia recommended that mother obtain a mental health evaluation, as her response to this event was unusual and she demonstrated some traits that may be indicative of a personality disorder, or at a minimum, obtain individual therapy to help her develop insight into her role in the deterioration of her relationship with Amber.
Amber’s therapist, Romero, who had been providing mental health services to Amber since August 2015, reported that Amber had made improvements over the course of her treatment. Romero stated that Amber had recently been asked how she felt about including her parents in counseling. Amber was concerned about doing so, as she felt misunderstood and that her parents did not acknowledge her mental state. Therapeutic visitation had been suggested to Romero, and while she felt it would be “most fitting,” she did not believe it was appropriate for her to be involved in those visits, as it had taken some time to establish a relationship with Amber and it would be detrimental to that relationship for Romero to be included in anything other than Amber’s individual therapy. Romero suggested that if further services were needed, it was in Amber’s best interest they be addressed with the parents’ own therapists.
Mother’s attorney responded to Romero’s report by asserting in a June 17 letter that mother did not have an individual therapist who could monitor therapeutic supervision, as mother was last in individual therapy with Veronica Cardinas at Kings View, which she had successfully completed about a year ago, and a Department social worker had determined mother did not need to continue with therapy in her Fresno case. The attorney asserted that mother would start seeing an individualized therapist with the goal of future therapeutic visitation with Amber.
The 12-Month Review Hearing
In its report for the 12-month review hearing, the Department recommended the juvenile court continue reunification services for both parents, even though it was concerned that mother refused to acknowledge Amber’s feelings about their relationship. The Department recommended the court order mother to complete a “new mental health evaluation and any recommended treatment” based on Dr. Mejia’s impression that mother’s unusual response at the last visit indicated she may have a personality disorder.
Amber’s counsel opposed the Department’s recommendation to continue reunification services for mother and father. As to mother, Amber’s counsel argued mother was not empathetic to Amber’s needs and unlikely to successfully reunify with her. In a statement of contested issues, counsel cited the email from mother and her attorney which stated Amber had written a letter alleging her foster parent abused her. No letter was produced, however, and Amber denied making the allegation. In addition, mother caused Amber distress during visits with her siblings and Amber’s therapist declined to provide family therapy, stating it would be detrimental. Counsel argued that mother had not made the progress required to find there would be a substantial probability of return by the end of the 18-month reunification period, which was to expire in four months.
In August 2016, the juvenile court conducted a contested 12-month review hearing on the issue of whether there was a substantial probability that Amber would be returned to either parent. Amber’s counsel, relying on the Department’s reports, asked the juvenile court to terminate mother’s and father’s reunification services, as it was not realistic that there would be successful reunification in four months. With respect to mother, Amber’s counsel argued the case plan was tailored to rebuild the relationship between mother and daughter, yet mother had not made any progress in meeting Amber’s emotional needs.
Amber’s counsel discussed mother’s history of “concerning behavior,” which included: (1) before disposition, mother discussed the case with Amber and promised she would be going home; (2) during the first six months of reunification, mother blamed Carl rather than focusing on herself and her relationship with Amber, and Amber’s therapist, Romero, opined that returning Amber to mother would cause Amber to regress in her behavior and create a substantial risk of detriment; (3) in March or April 2016, Amber began stating that she did not want to visit her parents; (4) despite this, while father’s visits resumed because he was patient and willing to work with Amber and her emotional state, mother had not been patient and her continued conduct emotionally harmed Amber; (5) mother continued to allege that Amber was bipolar or had developmental issues, but in the latest report, Romero stated she did not believe Amber showed symptoms of bipolar disorder and she was making significant progress in therapy; (6) when Romero was asked to provide conjoint therapy, Romero declined as it would not be in Amber’s best interest to do so; and (7) Dr. Mejia recommended mother obtain a mental health evaluation because mother demonstrated traits that may indicate a personality disorder.
Amber read a statement into the record that she was happy with her foster family and her life, and did not want to continue with reunification efforts. She knew she would not feel safe and happy were she returned to either parent, she did not want to give them any more of her youth, and she wanted to move forward with her life. The juvenile court asked Amber if her feelings would change if her parents got more help. Amber responded that they would not, as she was tired of losing her childhood and worrying about her parents. Amber said she had given them 13 years of her life, which she thought was plenty of time for them to make things better. Amber was satisfied to terminate the relationships at that time, even without giving her parents another chance.
The juvenile court allowed mother’s attorney to call four witnesses – A.H., Amber, mother, and Amber’s brother, Julian. Carl also testified. Amber testified that at her last visit with mother, mother acted like nothing happened and that Amber’s feelings were unimportant. During some visits with mother, Amber had pretended to be happy, but she actually was furious and sad to have to visit mother. She did not discuss this with mother, but did discuss it with her therapist, Romero.
Amber did not want to see mother because she would “get hurt” when she saw her. Amber believed mother had “brainwashed” her to believe mother was perfect and “every little problem” was Amber’s fault. Mother would not take responsibility for her own actions. Amber did not want to see mother even if mother got help because mother had been given enough chances. Amber explained that mother would get drunk and blame it on the children. Amber would give mother a second chance, but then mother would hurt her by blaming her for “everything wrong in the world.” Amber kept wondering why she was giving mother another chance and stated that mother was “not fit to be a mother.”
Just seeing mother would make Amber angry. Amber was angry with mother because mother thought she could manipulate Amber’s siblings, since mother knew the only reason Amber had wanted to live with mother was to protect them. Amber decided that the only way she could help her siblings was to help herself. Before she went into foster care, Amber had planned to commit suicide.
Mother denied that she wrote the letter describing possible foster abuse and claimed she did not want any part of the investigation. Mother denied being diagnosed with a personality disorder. Mother acknowledged that Amber told her during their last two visits that she no longer wanted to see mother, and also testified at the hearing that while Amber said she did not want to see mother again, mother believed Amber really wanted to see her. Mother was willing to do anything to see Amber again. Mother was not attending therapy at the time of the hearing.
Mother testified she would accept it if Amber stated she did not want to reunify, but she was not willing to accept Amber’s testimony to that effect because Amber was “not telling the truth about a lot of things, and she’s not honest.” Mother agreed that Amber had gone through a lot of emotional harm during her life, but she did not believe that reunification was causing Amber emotional harm. Mother wanted to “talk through” her issues before visitation was terminated.
Mother’s attorney asserted that he had brought multiple proofs of completion of services, including over a year in therapy that she completed at Kings View. Mother’s attorney argued that mother had visited Amber as often as allowed, had made significant progress on her case plan, and demonstrated the capacity and ability to complete the plan’s objectives. The attorney further argued that Dr. Mejia acted unethically in suggesting mother had a personality disorder and objected to the use of Dr. Mejia’s “diagnosis of [a] personality disorder.” Instead, it was Amber who needed a psychological evaluation and testing. The attorney asked that services remain until November, and that Amber be given the therapy she needed.
County counsel argued there was a substantial probability of return as to both parents and asked the juvenile court to continue reunification services to 18 months. Amber’s counsel did not agree with the Department’s recommendation and asserted that mother made no progress with the services given her, as her testimony demonstrated she could not meet Amber’s emotional needs, and there was no substantial probability of return.
The juvenile court found that while Amber and Carl were credible, mother was not. The juvenile court concluded that visits with mother would not continue under any circumstances, as Amber and the Department had made clear she was not in a position to visit, Amber did not want to visit, and she could not be physically forced to do so. The juvenile court found mother had made insufficient progress, as there was no documented progress by mother on addressing Amber’s special needs and it could be inferred from the evidence that mother continued to attempt to manipulate Amber. The juvenile court also found a lack of evidence that mother had the ability to complete the case plan objectives and provide for Amber’s special needs, as shown by mother continuing to blame Amber and others for her failure to reunify.
The juvenile court found the Department provided Carl and mother reasonable reunification services, but mother’s progress was minimal. The court found that visits with mother were detrimental to Amber and suspended visitation. The court terminated mother’s services, but continued services for Carl until the 18-month review hearing set for November 2016.
The Section 388 Petition
On October 11, mother filed a modification petition under section 388, asking the juvenile court to order supervised visits and communication by telephone and letters. As changed circumstances, mother asserted that she had started counseling with her previous counselor, Heidi Todd, MFT. Todd explained in an email to mother’s attorney, which was attached to the petition, that she had been counseling mother for three weeks; mother had been tackling her emotional problems “head on”; mother had “made tremendous progress in her personal life, confronting personal weaknesses and learning new techniques and behaviors that are building positive change in both her and her children”; mother was living with her other children and working on finding emotional help for them; and mother was “very mature and optimistic.”
Mother asserted visitation would be in Amber’s best interest because it was shown at the August 4 hearing that mother had completed all Department-ordered services except a second mental health assessment; Amber testified she did not want any contact with mother because mother was inappropriate during visits; and mother had restarted therapy and was learning new techniques to make visits positive and beneficial to Amber.
The juvenile court set a hearing on the petition for November 2. At the November 2 hearing, the juvenile court stated the hearing was to determine whether mother had made a prima facie case that would entitled her to an evidentiary hearing on the petition. The juvenile court first asked mother’s attorney whether he had any new evidence to offer. The attorney responded that mother went to Fresno County mental health and asked for a test to determine if she needed help, but “they did not determine that was necessary.” In addition, mother had been seeing her therapist, Todd, who was helping her work to build better tools to facilitate visits. The attorney explained that mother requested a couple different forms of communication because she was open to any form, whether therapy or phone calls, and just wanted the “door to be opened and the options to be available” if Amber wanted to “go down that course.” Mother’s dream was for a professional to help, as Amber had only met with a psychologist once over three years ago. When the juvenile court asked mother’s attorney what precisely had changed since the August order, he responded the biggest change of circumstance was mother having undergone therapy.
The juvenile court asked mother’s attorney why mother had not changed sooner. Mother’s attorney responded that mother thought she was fine, as she “had gone through [a] mental health assessment” and “[t]hey said she was okay.” It was only after Amber told mother she never wanted to see her again that Amber’s therapist called mother’s mental health into question by saying mother had an adverse emotional reaction. Mother then got a second mental health assessment order and tried to comply in Hanford, but the wrong test was requested. It then seemed that the mental health issue might be affecting mother’s visitation, so he told mother to rush to a therapist to try to be better suited for visits.
County counsel argued there was no change of circumstances, noting that mother’s mental health was always in issue in the case, “[i]t was ordered[,]” mother was ordered a second mental health assessment, with which she did not comply, and services were terminated. Thereafter, the only thing mother had done was to go back to her “life coach therapist for three weeks.” Amber’s counsel also argued circumstances had not changed, as mother had not demonstrated she had made any progress in therapy or ameliorated the circumstances at issue at the last hearing.
The juvenile court turned to best interests. Mother’s attorney asserted that Amber may not be presenting how she really feels, and maybe she would open up to mother and possibly a therapist, through which Amber might experience some growth and help her resolve some of her old issues. Moreover, he did not see the harm in allowing some contact and at least allowing “the door to be opened[,]” noting that Amber could decline the contact. He thought “the burden to [Amber] is fairly low in terms of the benefits that could be gained from working through these issues.”
County counsel asserted there had not been any showing of best interest, as the relationship between mother and Amber was already strained when the dependency case began, and while therapy and therapeutic supervised visits had been offered, nothing was able to repair the relationship. Amber had made her feelings very clear, had come a long way in the case, and had thrived in foster care, yet mother did not like that and did not believe either the Department or Amber. The bond between the two was “extremely tenuous”; the court had found visits would be detrimental based, in part, on Amber’s testimony; and there was no showing visitation would be in Amber’s best interest. Amber’s counsel asked the petition be denied on its face, as it did not state why it was in Amber’s best interest to visit with mother.
The juvenile court denied the petition, finding mother failed to make a prima facie showing. Specifically, the juvenile court found that while at best mother had made some progress in therapy, it had not risen to a sufficient level to meet the legal criteria for establishing changed circumstances, and there was no showing of best interest.
DISCUSSION
Mother argues the juvenile court erred in denying an evidentiary hearing on her section 388 petition.
Under section 388, a juvenile court order may be changed or set aside “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.” (In re Zachary G. (1999) 77 Cal.App.4th 799, 806 (Zachary G.).) “[I]f 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.” (Ibid.; § 388, subd. (d) [“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 . . . .”].) 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.” (Zachary G., at p. 806.) We review the juvenile court’s order denying a hearing for abuse of discretion. (Id. at p. 808.) “It is rare that the denial of a section 388 motion merits reversal as an abuse of discretion . . . .” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 522.)
Generally, visitation between a parent and child who is in foster care should be as frequent as possible, consistent with the well-being of the child. (§ 362.1, subd. (a)(1)(A).) The juvenile court may deny visitation if it concludes that visitation between the parent and child would be detrimental to the child. (In re Mark L. (2001) 94 Cal.App.4th 573, 580.) Here, the juvenile court determined in August 2016 that visitation with mother would be detrimental to Amber.
On appeal, mother contends the juvenile court should have held a hearing on her section 388 petition because she made a prima facie showing of changed circumstances, namely that she was participating in therapy in the three months before the hearing. Even so, mother failed to show that the conditions that caused suspension of visitation, namely her behavior, had changed. More importantly, mother fails to explain how resuming contact or visits would be in Amber’s best interest. Amber made clear at the 12-month review hearing that she did not want to visit mother and that visits were detrimental, as they caused her to be angry due to past hurts and emotional damage mother had inflicted on her, and mother’s unwillingness to take responsibility for her own actions. Mother presented no evidence on her petition that Amber’s feelings had changed such that it would benefit Amber to resume contact with mother. Mother asserts she could not have presented such evidence, since contact and visits had been suspended. Mother, however, does not state why she did not inquire of other sources of information concerning Amber’s state of mind, including her attorney or therapist.
Simply put, mother has not satisfied her burden of showing how or why contact or visits were no longer detrimental. Therefore, mother did not make a prima facie showing that Amber’s best interest would be served by resuming contact or visits. The juvenile court did not abuse its discretion in summarily denying mother’s section 388 petition without a hearing.


DISPOSITION
The juvenile court’s order is affirmed.



GOMES, J.
WE CONCUR:



HILL, P.J.



PEÑA, J.