Filed 11/19/18 In re A.B. CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Mother, T.N., appeals from the juvenile court’s order denying her Welfare and Institutions Code[1] section 388 petition for modification for reinstatement of reunification services.[2] We will affirm.

I. BACKGROUND

In February 2016, mother was arrested and law enforcement placed the then two-year-old minor, A.B., in protective custody. Mother requested the minor be placed with the paternal great-aunt. She stated this is where the minor had been staying because mother was living with a physically abusive “crazy boyfriend.” Father, who was incarcerated, also requested the minor be placed with his great-aunt.

Between November 2015 and February 2016, law enforcement received a number of reports of disturbances, fighting, and domestic violence between mother and her boyfriend, Dale H., at mother’s home. Between October 2007 and September 2015, child protective services received multiple referrals regarding mother. The referrals included allegations of domestic violence with a former partner and in the presence of a half sibling, and general neglect. In one incident, mother was shoplifting with the minor and had a physical altercation with loss prevention staff while holding the minor.

The Department of Health and Human Services (now called the Department of Child, Family and Adult Services) (Department), filed a section 300 petition alleging a failure to protect based on domestic violence in the presence of the child. (§ 300, subd. (b).) In April 2016, the juvenile court found the allegation true, specifically finding mother and Dale had a history of engaging in domestic violence in the presence of the minor, including Dale choking, punching, and attempting to strangle mother. Mother remained in a relationship with Dale, allowing the minor to be exposed to the domestic violence. Six of 13 calls to law enforcement in the previous few months were related to domestic violence. The juvenile court declared the minor a dependent child, and ordered reunification services, including counseling concerning domestic violence issues. The juvenile court also ordered regular visitation between mother and the minor.

In May 2016, Dale and mother had another altercation. Dale arrived at mother’s friend’s house, grabbed her, put her in his truck, and drove off. While in the truck, they continued to fight and Dale stabbed her. Mother was able to escape at a stop sign and law enforcement arrested Dale. Approximately two months later, mother showed up at the foster parents’ home and stated she was going to kidnap the minor and make a complaint against the foster parents. In August 2016, the minor was moved to a placement with her paternal aunt in Nevada.

By October 2016, mother had been participating in reunification services. She had completed most of her parenting classes and a domestic violence program, and had begun general counseling and drug testing. She was making progress in mitigating the causes of removal; however, there continued to be concern about her behavior at the foster home, making the foster parents feel unsafe, and requiring the involvement of law enforcement. The Department recommended further services for mother.

By March 2017, mother had completed parent education, general counseling, and domestic violence counseling. She had also been continuing drug testing. Mother had been referred to individual counseling, but had not yet started the sessions. She was also enrolled in anger management counseling, having completed two sessions.

After the minor was placed out of state, visits were less often and primarily telephonic. Between August 2016 and March 2017, mother had two visits with the minor. Prior to the first visit, mother arrived in the aunt’s hometown. The aunt had thought her address was confidential. While in aunt’s hometown, mother showed up unannounced at various addresses associated with aunt, and left a note for the minor. Via text messages, mother and aunt agreed to meet the next day in Reno, about a two-hour drive from the aunt’s hometown. Mother arrived three hours late for the visit. At another scheduled visit in Nevada, mother took the minor to a store, and mother was stopped by a store clerk for shoplifting. With the minor in her arms, mother had an altercation with the store clerk. The clerk contacted law enforcement. Mother was cited for petty larceny. The social worker noted this behavior was consistent with mother’s past behavior and indicated she had not benefitted from services. The Department recommended additional services.

Mother attempted another unannounced visit with the minor in May 2017 and met the minor and aunt at a fast food restaurant. Mother had arrived there with Dale. Aunt left when she saw Dale. Mother missed scheduled visits with the minor in June. The Department reported mother had been inconsistent and “often unwilling to cooperate” with its efforts to schedule and coordinate visits.

Mother was arrested in June 2017. Law enforcement was attempting to contact Dale regarding warrants for his arrest. They received information he was staying with mother at her apartment. On the second day of their surveillance, they contacted mother who repeatedly denied Dale was in the apartment. Dale was found hiding under the sink. He resisted arrest. Once he was subdued, law enforcement placed both Dale and mother under arrest. Mother apologized and admitted she knew Dale had been in the apartment and that she had hidden him from law enforcement. The Department recommended reunification services be terminated.

In August 2017, 18 months after the minor was detained, the minor was doing well in her placement and was bonding with aunt. Mother had also completed her individual counseling sessions. By the 18-month review hearing in September 2017, mother had also completed an anger management class. Mother’s counselor indicated that while mother had shown significant improvement in some areas, her behavior showed a “disregard for the safety of her child by failing to disengage from an abusive relationship, failing to be consistent with visitation and inability to take responsibility for her actions through untruthful statements made in treatment.” The counselor supported the recommendation to discontinue reunification services.

At the 18-month review hearing, the Department presented evidence mother had been the victim of felony domestic violence by Dale on July 5, 2017. Both the apartment manager and mother called 911 for an ambulance. Mother reported she needed medical attention because she was swallowing her own blood. The police report indicated Dale had choked mother three times, and the final time she had blacked out. The apartment manager indicated she had seen Dale at the apartment two or three times per week. Mother told the responding officers she did not want Dale arrested, would not cooperate with law enforcement, and would not testify against him. At the review hearing, mother testified she had not seen Dale since June 20, 2017. She testified she had not called 911, and had not received medical treatment for any injuries on July 5, 2017. She also denied she had lied to law enforcement about his presence in the apartment, and denied she had made a statement apologizing to law enforcement for lying to them.

The social worker testified that the fact that mother renewed her relationship with Dale just a few weeks after he was released from jail, and the nature of the domestic violence incidents, demonstrated mother had not benefitted from reunification services. She believed these most recent incidents supported her recommendation to terminate reunification services because mother had not benefitted and the minor’s safety would be in jeopardy if she were returned.

The juvenile court noted the basis of jurisdiction was the finding that mother had a history of domestic violence with Dale, and that mother had completed many services, including parenting classes, general counseling, domestic violence counseling and individual counseling. The juvenile court acknowledged mother had demonstrated some progress and benefit; however, the evidence of the most recent incidents between Dale and mother in June and July 2017, as well as mother’s false statements to law enforcement and untruthful testimony demonstrated a lack of respect for the law and law enforcement, showed mother being protective of her abuser, and mother placing her own interests above those of others, including the minor. The juvenile court also noted the similarities between the June 2015 shoplifting incident and the November 2016 incident and found this was further evidence of mother’s willingness to ignore boundaries and the law, and to engage in altercations while her daughter was in her care. The juvenile court found by a preponderance of the evidence that there was a substantial risk of detriment to the minor’s safety and well-being if she were returned to mother. The court also ordered mother’s reunification services terminated, as the time eligibility had expired. The matter was set for a section 366.26 hearing.

Mother, now representing herself, filed a section 388 petition to modify in December 2017. Mother attached evidence demonstrating that since the September 2017 18-month review hearing, she had completed an additional battery intervention course on October 24, 2017. She enrolled in that online course on October 20, 2017. She also attached e-mails in which she reported to a victim’s advocate at the Department of Corrections and Rehabilitation (CDCR) that she had received threatening e-mails from Dale and told CDCR she had an active restraining order against him. At the hearing, mother stated this evidence demonstrated changed circumstances in that she had been able to integrate what she had learned from her services and take steps to ensure she and her daughter would be safe from Dale. As to the best interests, mother claimed that the minor had been crying herself to sleep ever since she was removed from mother’s custody, asked why she was being given to aunt, asked where “mommy’s” room was going to be, and offered to take the bus home with mother. She claimed the minor just wanted to be back with her mother, so it was in the minor’s best interests to be reunited with mother.

The Department alleged mother had not provided evidence of a restraining order; Dale was currently in prison, and mother had previously reengaged in a relationship with him soon after his release from prison; and the organization through which she obtained the certificate for the additional battery intervention course recommended supplemental psychotherapy sessions for all enrollees. The Department also stated this was not a program the Department uses or has approved for any purpose. The Department noted the minor had been in her current placement for 16 months and was doing well there. There was no evidence the minor was suffering due to the loss of relationship with mother. Minor’s counsel agreed with the Department and requested denial of the petition.

The juvenile court considered that the original allegation giving rise to the dependency jurisdiction included reports of domestic violence in the presence of the minor. The juvenile court noted the domestic violence problem was not specific to Dale, although he was a component of it; it also represented a significant risk of harm to the minor witnessing domestic violence. In this case, the severity of the problem was fairly substantial with numerous domestic violence episodes reports over time, as far back as November 2015. Through the pendency of the case at various points, there were further allegations of domestic violence. The juvenile court acknowledged mother had completed one additional course, but stated it had no evidence of the extent to which mother had internalized any of the content of the program. The juvenile court noted the minor and mother had a significant bond, but the minor and the aunt also shared a significant relationship. The minor was four years three months old and had been placed with the aunt for 16 months. The juvenile court found mother had not met her burden to establish changed circumstances, and specifically had not shown she had successfully addressed her prior willingness to be in a relationship involving severe acts of physical violence against her. The juvenile court also found mother had not met her burden of establishing it was in the minor’s best interest to be removed from her aunt’s care, there was no showing of any discomfort by the minor in the placement, the placement had been stable and supportive, and the minor was bonded with the aunt. Accordingly, the juvenile court denied the modification petition.

II. DISCUSSION

Mother contends the juvenile court abused its discretion in denying her section 388 petition. She contends she demonstrated changed circumstances and best interests of the child as Dale was in prison, she had obtained a restraining order, and “had done everything she possibly could to assure that her daughter would be safe in her care.” She also contends her claims regarding the minor’s crying and statements of wanting to go home with mother demonstrated a strong bond between them.

“To prevail on a section 388 petition, the moving party must establish that (1) new evidence or changed circumstances exist, and (2) the proposed change would promote the best interests of the child. [Citation.]” (In re J.T. (2014) 228 Cal.App.4th 953, 965.) The change of circumstances or new evidence “must be of such significant nature that it requires a setting aside or modification of the challenged prior order.” (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485; see also In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451.) When reunification services have been terminated and a section 366.26 hearing has already been set, a court assessing the child’s best interests must recognize that the focus of the case has shifted from the parents’ interest in the care, custody, and companionship of the child to the needs of the child for permanency and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) The child’s best interests “are not to further delay permanency and stability in favor of rewarding” the parent for his or her “hard work and efforts to reunify.” (In re J.C. (2014) 226 Cal.App.4th 503, 527.) “A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child’s best interests. [Citation.]” (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) We review for abuse of discretion a juvenile court’s denial of a section 388 petition. (In re J.T., at p. 965.)

Here, mother’s history of being involved in domestic violence relationships extended back to October 2007, with a different partner and in the presence of a different child. Her relationship with Dale prior to these proceedings included multiple calls to law enforcement related to domestic violence, violence which included Dale choking, punching and attempting to strangle mother. This pattern continued after these proceedings commenced; within a month of the juvenile court taking jurisdiction in this case, Dale and mother got into another altercation in which he kidnapped and stabbed her. While Dale was incarcerated, mother participated in services and completed parenting classes, a domestic violence program, and general counseling. Nonetheless, she continued to exhibit behavior with the foster parents and at visits that demonstrated she had not benefitted from these services. Despite having completed all these services, and continuing participation in individual counseling and anger management, shortly after Dale was released from custody she brought him to an unscheduled visit with minor. She then attempted to harbor him from law enforcement, lying to them about his presence in her apartment. She continued to have a relationship with Dale until he beat her so badly she requested medical attention and he was arrested again. She lied about both of these incidents to the juvenile court under oath. At this point, mother had received over a year of extensive in-person counseling services, specifically directed at teaching her the skills to protect herself from domestic violence. Her resuming the relationship with Dale, harboring him from police, lying to police, then lying to the juvenile court demonstrated these lengthy services did not benefit mother. That is, although she had completed services for over a year, mother had not made progress in eliminating the cause of the dependency. This evidence also indicated the severity of the problem which led to the dependency, and the nature of the difficulty in addressing domestic violence issues.

Mother’s participation in an additional four- or five-day online counseling program that was not approved by the Department, and suggested supplemental in-person psychotherapy, did not demonstrate changed circumstances. Nor does the possible existence of a restraining order against Dale while he was in custody. Mother had already participated in significant services while Dale was in custody and appeared to be benefitting from those services, until Dale was released from custody and she chose to immediately let him back into her life. In fact, she was still participating in services when she resumed her relationship with Dale. Nonetheless, throughout the proceedings the evidence was that mother participated in services but could not apply the lessons and skills in her life. Participation in one additional brief online course does not now demonstrate the ability to apply the knowledge. There was no evidence before the juvenile court that within the three months from the time of the order terminating her reunification services, that a four- or five-day online course effected any genuine change in mother’s ability and willingness to protect herself and her child from domestic violence. Accordingly, the juvenile court did not abuse its discretion in denying her modification petition.

III. DISPOSITION

The order of the juvenile court is affirmed.

/s/

Renner, J.

We concur:

/s/

Hull, Acting P. J.

/s/

Mauro, J.