In re Lisa L.

Filed 10/27/06 In re Lisa L. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from an order of the Superior Court of Los Angeles County, Valerie Skeba, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Deborah L. Hale, Deputy County Counsel, for Plaintiff and Respondent.

___________________________________

Julieta L. appeals from an order denying her petition to vacate an earlier order terminating reunification services (Welf. & Inst. Code, § 388).[1] We affirm.

FACTS

A.

In February 2004, Julieta -- then 17 and a dependent of the juvenile court living in a group home -- gave birth to Lisa L.[2] In March, there were unsubstantiated allegations that Julieta had physically abused Lisa. In April, after Julieta slapped the baby hard enough to leave a hand print on her stomach and affect her breathing, Lisa was detained and a petition was filed in the Orange County Superior Court (§ 300, subds. (a), (b)). According to the detention report, Julieta had refused prenatal care, refused follow-up medical appointments for Lisa, and ignored infant-care suggestions offered by the group home staff. Julieta (who was described as “very immature” and who tested at about fifth grade level and was “slow”) often became frustrated with the baby and said she was going to give her away. She knew she had problems controlling her anger and was described as a “high risk mom.”

At the detention hearing (April 2004), the court found a prima facie case, ordered reunification services, monitored visits, and drug and alcohol testing for Julieta. The Orange County Social Services Agency (SSA) was ordered to prepare a case plan, and Lisa was placed with a foster mother (Linda W.) in Orange County.

B.

SSA reported in May that Julieta had visited Lisa and tested clean at first but violated her probation and was returned to juvenile hall on May 6. Reunification seemed unlikely.

An initial case plan attached to the May report set forth a list of Julieta’s responsibilities: (1) participate in individual therapy with an approved therapist who would address domestic violence, Julieta’s history of abuse, impulse control, and the reasons for SSA’s involvement; (2) participate in an anger management program; (3) participate in a parenting program; and (4) appear for twice-weekly drug testing (with a warning that a “missed test [would be] considered a dirty test,” and that a “dirty test” would mean she would have to participate in a drug treatment program).

On May 20, Julieta was placed in a new group home in Los Angeles, where she was attending school, participating in the required programs, and visiting Lisa. The group home closed in June and Julieta was moved to another home. On July 9, she ran away and was again in violation of her probation. When she appeared for a July 19 hearing, she was taken into custody, and she was still in custody when she appeared for a July 26 adjudication hearing. She entered a no contest plea and the petition was sustained as amended.

C.

Julieta was released on July 28 and (against the recommendation of her probation officer) probation was terminated. Julieta moved in with her former foster mother (Norma A.) in Palmdale.

In September, SSA reported that Lisa was thriving and “very well cared for” by Linda, her foster mother. Although Julieta’s unstable living arrangements were creating jurisdictional and funding issues between Los Angeles and Orange Counties, a disposition hearing was held in Orange County on September 15. On SSA’s recommendation (and with Julieta’s submission on the recommendation), the court declared Lisa a dependent child, adopted the case plan proposed the preceding May, and authorized funds for the recommended programs, testing, and visits. (§ 361, subds. (c), (d).) Julieta turned 18 on September 28.

In October, the Los Angeles Superior Court found Julieta was a resident of Los Angeles, accepted jurisdiction, ordered reunification services, and set the six-month review hearing for December. A social worker from the Department of Children and Family Services met with Julieta in mid-November.

D.

In December, the Department reported that Julieta had several negative drug tests but also had two “no shows,” that she had nearly completed a parenting program and had enrolled in a drug education program and anger management class, but that her attendance had been irregular and her participation unsatisfactory. She was living with her father and brother in a one-bedroom apartment where “there was a ‘lot of drugs, drinking and fighting.’” Julieta was looking for work and was visiting Lisa on a regular basis but knew Lisa would not be placed with her at her father’s apartment. Linda and her husband expressed an interest in adopting Lisa.

The Department recommended six more months of services for Julieta, and that recommendation was accepted by the dependency court, which also ordered twice-weekly visits for Julieta and directed the Department to find a placement for Lisa closer to Julieta.

In January and February 2005, the Department reported that Lisa was bonded with Linda’s family, and the social worker recommended against removing Lisa from Linda’s care. Julieta continued her regular visits and showed genuine affection for Lisa but had to be encouraged to be patient. In March, by which time Julieta had left her father’s home and moved in with her boyfriend (Jose) and others, the Department recommended unmonitored visits as frequently as could be arranged, including overnight visits. Julieta was enrolled in a substance abuse program and was regularly attending a support group and individual sessions. She had completed a parenting class, and Linda reported that Julieta was “good with the baby.”

E.

In June 2005, the Department reported that Julieta and Jose had moved out of the approved home and were living with Julieta’s father, and that Lisa’s overnight visits (which until then had gone well) had been suspended. Julieta tested clean in June 2005 and continued with her classes. She was looking for a job and for a new place to live. On June 14, the court found there was a substantial probability that Lisa could be returned to Julieta within the next six months, continued services, and ordered an assessment of all adults in the house where Julieta was then living, with weekly overnight visits to resume after four consecutive clean drug tests.

In July, Linda and her husband asked for de facto parent status and permission to take Lisa on a cruise. The Department supported the requests, noting that Linda had provided substantial help to Julieta throughout the time Lisa had been living with Linda and her husband. Over Julieta’s objection, the requests were granted. At the same time, the court reinstituted overnight visits with Julieta at her father’s house, provided her father was never alone with Lisa.

In October, the Department reported that Lisa was having problems when she returned to Linda’s from overnight visits with Julieta. The child was clingy, woke up crying, and had developed a “nervous habit” of scratching herself. At about the same time, Julieta’s progress started to deteriorate -- she was discharged from the drug program for noncompliance, and she failed to appear for a number of tests (although she tested clean when she did appear). She was still looking for work. The Department noted Julieta’s improved parenting skills but expressed concern about Lisa’s behavior and Julieta’s tendency to neglect her own health (she is diabetic), and recommended termination of services.

F.

A contested section 366.22 hearing was held in November 2005, at which time the issue was whether to terminate reunification services and set a section 366.26 hearing or, instead, to place Lisa with Julieta. In addition to the reports described above, the court considered a November 18, 2005, letter from the head of one of the programs Julieta had been attending, in which he said she was actively participating and making an effort to understand the consequences of her own behavior. Two recent drug tests were clean.

Julieta testified that she had completed the parenting program, that she had stopped attending the drug counseling program because she was being sexually harassed by her counselor (she admitted she never reported this to anyone), that she had asked for but never received another referral, that she had found another program on her own, that Lisa had been visiting for three-night weekends for the past two months, and that she wanted Lisa returned to her custody. She said she would allow Linda to visit Lisa.

The dependency court noted the absence of any explanation for Julieta’s delays in starting and resuming a substance abuse program. The court rejected her harassment claim as incredible, expressed concern about the number of missed drug tests, and noted that Julieta had attended only five anger management sessions. The court commented that it was unaware that Julieta was “so far out of compliance,” and found that the liberalized visits would not have been permitted had there not been confusion resulting from the involvement of two courts.

The court found Julieta was in partial compliance with her case plan, terminated services, and set a permanent plan hearing for March 2006 -- but continued the order for unmonitored visits provided that Julieta remained in her program and tested weekly.

G.

In February 2006, Julieta filed a section 388 petition in which she asked for “reinstatement of family reunification services with an accompanying Home of Mother order” based on her continued and consistent participation in the court-ordered programs, her negative weekly drug tests since November 2005, and Lisa’s continued weekly overnight visits since August 2005. In her supporting declaration, Julieta said her boyfriend (Jose) was employed and affectionate with Lisa, and that they were living with Julieta’s father until they could afford a place of their own. A letter from the head of Julieta’s program reported that Julieta had “excelled beyond the parameters of this program,” that Julieta interacted well with staff, and was “on track to complete” her treatment.

The court found a prima facie case and set a hearing for March 20, the same day as the section 366.26 hearing. Meanwhile, Linda and her husband were “very anxious” to adopt Lisa and were awaiting a home study. Reports submitted for the March hearing acknowledged Julieta’s progress but expressed concerns about Lisa’s behavior (she had trouble adjusting to the overnight visits) and about Julieta’s continued residence with her father where her brother, who had a history of sexually abusing Julieta, was a frequent visitor.

At the March 20 hearing, the dependency court denied Julieta’s section 388 petition, finding it would not be in the best interest of the child and explaining: “And . . . while . . . there may be a substantial change in circumstances, . . . under th[is] set of facts, I’m not sure that it would be best for Lisa to start the process over and grant further [family reunification services]. I really think that for a child of this age, what this child really needs is stability. And when I look at the entirety of the situation, it appears to me that the better placement for Lisa is with [Linda]. . . . [A]t this time, I’m going to deny [the section 388 petition] without prejudice. I do believe there has been a substantial change in circumstances. But with this child, I don’t believe it’s in the best interest of Lisa to have another shot at reunification. I think we need to get some type of permanency for this child.”

The court then denied the Department’s request to terminate Julieta’s parental rights (at least until Linda obtained adoption approval), ordered a completed home study, continued Julieta’s visits, and set a contested section 366.26 hearing for May 11, 2006.

Julieta appeals from the order denying her section 388 petition.

DISCUSSION

Julieta contends that, “in light of her excellent progress and her extensive contact and bond with Lisa,” the dependency court abused its discretion when it denied her section 388 petition. We disagree.

Section 388, subdivision (a), permits a parent, upon changed circumstances or new evidence, to petition for a hearing to set aside a previous order. To prevail on the petition, the parent must show by a preponderance of the evidence both changed circumstances and that the requested modification would be in the best interests of the child. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416; In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446; In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) Where (as here) the dependency court denies a section 388 petition, we will reverse only upon a showing of abused discretion, and the fact that two or more inferences could reasonably be drawn from the facts does not permit us to substitute our judgment for that of the dependency court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

Julieta contends she established changed circumstances. The dependency court agreed, so the only issue is whether the court abused its discretion when it found that the proposed change was not in Lisa’s best interests. Contrary to Julieta’s contention, the court considered more than the issue of Lisa’s “simple best interests,” and we cannot on this record say there was an abuse of discretion.

The idea of “simple best interests” is explained in In re Kimberly F., supra, 56 Cal.App.4th at page 529, as a comparison between the household and upbringing offered by the natural parent with that of the caretakers. Kimberly F. notes the “temptation” to make the simple comparison but condemned it because it provides an “incomplete picture” of the child’s best interests (and because it would encourage a court to “play God” in determining which of two households a child should have been born into). (Ibid.) That is not what happened here.

In determining Lisa’s best interests, the dependency court legitimately focused on stability as a critical issue. As the Supreme Court explained in In re Stephanie M., supra, 7 Cal.4th at page 317, the parent’s interest in the child’s future are no longer paramount after reunification services have been terminated. “Rather, at this point ‘the focus shifts to the needs of the child for permanency and stability’ . . . and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child.” This is “particularly true when[, as here], such placement is leading to adoption by the long-term caretakers.” (In re Angel B. (2002) 97 Cal.App.4th 454, 465.) Julieta did not rebut the presumption.

Lisa (who was two years old at the time the section 388 petition was heard) was two months old when she went to live with Linda. Although Lisa has stayed with Julieta three nights a week since August 2005, the child has spent most of her time with Linda -- and has developed behavioral problems since she has been visiting Julieta. Lisa calls Linda “Mom” and calls Julieta “Julie.” Linda is married and has a stable home. Conversely, Julieta has moved from place to place, has no job, and continues to live with her father. All of these factors were properly considered by the dependency court and we cannot say on this record that it abused its discretion. (In re Kimberley F., supra, 56 Cal.App.4th at pp. 530-532; In re Aaliyah R., supra, 136 Cal.App.4th at pp. 446-447.)

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED.

VOGEL, J.

We concur:

MALLANO, Acting P.J.

JACKSON, J.*

______________________________________________________________________________

*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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

[2] As a child, Julieta became a dependent of the juvenile court because she was the victim of neglect and abuse. She received special education services but dropped out of school in ninth grade. A section 602 petition was filed in May 2001, charging Julieta with assault and battery after she pushed her mother, and Julieta was placed in juvenile hall. In October 2003, Julieta was charged with theft and placed on probation. In December 2003, Julieta was placed in the group home as a section 602 ward.