In re Yareli L.

Filed 3/16/07 In re Yareli L. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from an order of the Los Angeles Superior Court. Robert Stevenson, Juvenile Court Referee. Affirmed.

Kate M. Chandler, by appointment of the Court of Appeal, for Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Tracey F. Dodds, Deputy County Counsel for Respondent.

_______________________

SUMMARY

Martha N., mother, appeals the summary denial of her Welfare and Institutions Code section 388 petition.[1] We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Mother has seven children: Yareli L. (age 13), Juan L. (age 12), Joanna V. (age 10), Juan R. (age 8), Perla L. (age 7), Yvonne L. (age 6) and Emily L. (age 4). The children were detained in early June 2003 after Romo L., mothers live-in companion and the presumed father of the three youngest children,[2]assaulted mother, threatened to kill her, and choked her into unconsciousness. As subsequently sustained, the petition alleged the children were persons described by section 300, subdivisions (a), (b), (d), (g) and (j). The petition alleged the children were exposed for years to violent confrontations between mother and Romo, including incidents during which Romo hit and choked mother, kicked her into unconsciousness, and threatened to kill her. The petition also alleged Romo sexually abused Yareli and Joanna on numerous occasions. The abuse included fondling the girls vaginas, digital penetration, oral copulation and sexual intercourse. Mother witnessed some of the molestations, but denied any abuse occurred and allowed Romo to remain in the home with unobstructed access to her daughters. Romo was also an alleged drug abuser who physically abused Yareli, Juan L. - who has Down syndrome - and Joanna. Finally, the petition alleged mother endangered and/or neglected the children by, among other things, permitting Romo to remain in the home with unlimited access to her daughters after she knew they were sexually abused, thereby permitting Romo to commit further sexual abuse, leaving the children alone for extended periods of time without adult supervision, and failing to provide basic necessities of life such as food, and medical and dental treatment.

Respondent Department of Children and Family Services (Department) was ordered to try to place all seven siblings together. Mothers reunification plan required her to participate in and complete courses on parenting and domestic violence for victims, sex abuse counseling for non-offenders, and individual and family counseling. She was permitted monitored visitation with the children in a neutral setting, and the court ordered sibling visitation for at least three hours at least once each week.

In July 2003, the Department reported mother visited the children consistently once a week, but displayed few, if any, parenting skills. She was participating in counseling as ordered by the court, but did not appear remorseful. The juvenile court issued a restraining order prohibiting Romo from coming within 500 yards of the children. The case was set for trial.

Trial began in September 2003. The Department reported mother admitted she knew about and had actually observed the sexual abuse. On one occasion, when she awoke at 4:00 a.m. and observed Romo was not beside her, she went looking for him. Upon discovering that the girls bedroom door was locked, she obtained a knife and opened it. She saw Romo orally copulating then seven-year-old Yareli. Romo was so preoccupied he did not see mother, Yareli, who did see her mother, looked traumatized. When mother told Romo he would rot in jail, he grabbed her by the neck and threatened to kill her. Mother continued her relationship with Romo after that incident because he promised not to engage in the conduct again and asked her forgiveness. Nevertheless, mother continued to wake at night and find Romo under the covers with Yareli in the childs bed. Mother also saw Romo engage in sexual intercourse with Joanna. When she witnessed the sexual assault, mother did nothing other than hit both Romo and Joanna on their backs. Even after witnessing the incidents of sexual abuse, mother denied that Romo has sexually abused her daughters. Mothers therapist told the Department that mother demonstrated no remorse, guilt or emotion about the sexual disclosures her daughters had made, the loss of her children, or the situation in which she found herself. The allegations of the petition were sustained.

The disposition hearing was conducted in late October 2003. The Department reported mother regularly participated in her programs and was doing well. According to the report, the Department was trying to locate a single placement for all seven children. The children were declared dependents of the juvenile court. Mother was granted monitored visitation and required to attend a domestic violence program, parenting classes, sex abuse awareness and individual counseling. Romo received no family reunification services. He was granted monitored visitation with his three daughters, and ordered not to contact any of the other children. Romo never contacted the Department to arrange visits with his children.

A six-month review hearing was conducted in late April 2004. By this time, six of the seven children had been placed together in a single foster home. Juan L. was placed in a separate foster home able to meet his special needs. Mother was in compliance with all the courts orders. Several participants in mothers group counseling sessions stated they had seen her with Romo. Mother, however, denied any contact with Romo, and claimed she would not jeopardize reunification with her children for any man.

By the time of the twelve-month hearing in August 2004, mother continued to perform well in almost all respects. Her visitation was liberalized to permit unmonitored, day-long visits. Mother continued to deny any contact with Romo. The Department recommended continued reunification services, and liberalizing mothers visits even more as soon as she obtained adequate housing. The court agreed.

In mid-January 2005, the Department reported mother appeared to be continuing to do very well, and her only problem was finding housing due to the number of children. Her sexual abuse counselor told the Department mother had shown growth in areas of empathy, understanding, importance of protecting children, recognizing her problems, and making efforts to help herself and her children . . . .  [Mother] is aware of the trauma her children suffered from the sexual abuse . . . [and] of the safety plan she has to implement to keep her children away from the perpetrator. [Mothers] role as the protective parent has improved greatly. The childrens attorney informed the court that all of the children wanted to return to their mothers home. The matter was continued for a supplemental report regarding housing.

Within the next two weeks, the familys prognosis for reunification success deteriorated rapidly. In early February 2005, the Department reported the children said they had seen Romo regularly during visits with their mother. They had spent several hours with him every two weeks since November 2004. The children said Romo had changed and was nice to them. Yareli said he apologized for hurting her. Although she initially denied Romos involvement in the visits, mother finally admitted coordinating visits between Romo and the children. She said she had done so because she needed financial help from Romo, who said he wanted the family to reunify. Mother claimed she was always present during visits and never allowed Romo to see the children alone. After she was informed the Department would recommend termination of reunification services, monitored visitation and a permanent plan of adoption because she had placed her children at risk of abuse again, mother pleaded for another chance and swore that she [would] never allow [Romo] in her house if she should get the children back.

In early February 2005, the Department filed a section 388 petition requesting the court restrict mother to monitored visitation because she had placed the children at risk of abuse by allowing Romo contact with them. A contested hearing was conducted in March. Mother admitted allowing Romo to see the children because she needed his help financially. She was remorseful and asked that one error in judgment not destroy 18 months of work attempting to regain custody of her children. Mother told her sex abuse counseling group that Romo continued to manipulate and undermine her and impact her judgment. Her counselor told the Department he was very troubled that Romo spent time with the children. Romo had participated in no compliance programs or other counseling, was an admitted drug user, had disregarded the restraining order, and harassed mother. The counselor believed even supervised visitation with Romo sent the wrong message to the children and negatively affected their healing processes. Mother told the Department that Romo sometimes forced her to use methamphetamine and that she was tempted to use drugs due to the stress of losing her children, although she denied any addiction. She enrolled in an outpatient program in late March 2005 and tested thrice negative for drugs in April of that year. Mothers visitation was limited in duration and changed to monitored. The Department continued to receive information from the children, foster parents and mothers housemate that caused it to suspect mother was still seeing Romo.

At the 18-month review hearing on May 4, 2005, the juvenile court terminated mothers reunification services. Although she had complied with her case plan, the court found mother violated its orders and continued to allow the children to have contact with Romo.

The Department reported that the foster mother who had been caring for Yareli, Joanna, Juan R., Perla and Yvonne was no longer able to do so. Juan L. remained stable in a separate placement. His foster mother had an excellent relationship with Juan L., was well able to meet his special needs, and wanted to adopt him. In August 2005, six of the seven siblings (all but Juan L.) were placed together in the foster home of Elvira V., where they remain. Except for Juan L., the four older children participated in therapy and experienced a range of mental disorders or emotional problems.

Mother was employed and continued to attend sex abuse counseling. She visited the children regularly. The visits went well, but observations made by a social worker and information received from Juan L. and his foster mother led the Department to suspect mother was still involved with Romo. Yareli said she did not want to go back to live with her mother because she was afraid of Romo.

The Department filed section 366.26 reports in January and February 2006 identifying adoption as the permanent plan for the children. Juan L.s caretakers wanted to adopt him, and their homestudy was complete. Juan L., whose disability rendered him nonverbal, could not express an opinion regarding adoption, but appeared very comfortable in his placement. The attorney representing the other siblings told the court the children would love to go home to their mother. The attorney did not believe adoption was in the childrens best interests because they were a sibling group with a long-term attachment to one another and their mother. The court agreed that adoption of all the children was not realistic. Juan L.s attorney recommended he be adopted. Counsel for the other children and mother opposed that recommendation, and the court set a section 366.26 hearing as to Juan L.

In mid-February 2006, the Department filed an addendum to its section 366.26 report indicating Yareli opposed adoption. Yareli stated she loved her mother and was afraid she would not be able to see her again if she was adopted. Because she was over 12 years old, her consent was necessary to proceed with adoption. Elvira did not want to adopt the children because the children knew their mother and because the children, especially Yareli, did not wish to be adopted. However, she was interested in legal guardianship. The other girls wished to remain in their placement; Juan R. wanted to stay with his sisters. The Department nonetheless continued to recommend adoption as the permanent plan for the six children in Elviras care.

Mother filed a section 388 petition on March 21, 2006. She requested the children be returned to her care or, in the alternative, she asked for revived reunification services and unmonitored liberal visitation. Mother claimed her circumstances had changed in that she was working with two agencies to obtain housing. She had also cooperated with the District Attorney to file a complaint against Romo, who had been convicted and incarcerated for theft of property, thereby demonstrating her dedication to keeping herself and the children safe. Mother asserted the requested modification was in the childrens best interest because of their bond with one another and her, and because she had become a stronger parent. The petition was summarily denied. Mother appeals from that order.

DISCUSSION

Mother insists she was entitled to an evidentiary hearing on her section 388 petition rather than a summary denial.

Section 388 authorizes a petition to modify a prior order of the juvenile court upon grounds of change of circumstance or new evidence. ( 388, subd. (a); see also In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) 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).) The parent seeking modification must make a prima facie showing of both elements to trigger her right to proceed by way of an evidentiary hearing. She must demonstrate both a genuine change of circumstance or new evidence, and revocation of the extant order would promote the best interests of the child. (In re Marilyn H. (1993) 5 Cal.4th 295, 310; In re Anthony W., supra,87 Cal.App.4th at p. 250.) To be entitled to a hearing on the merits, a petitioner need not establish a probability of prevailing on her petition. (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1414.) Rather, if the petition presents any evidence that a hearing would promote the best interest of the child, the court will order the hearing. (In re Heather P. (1989) 209 Cal.App.3d 886, 891.) But, if the liberally construed allegations of the petition do not show changed circumstances such that the childs best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) A summary denial of a section 388 petition is reviewed for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 316-318.)

The juvenile court found mothers petition failed to demonstrate the proposed change of order would serve the childrens best interests. For purposes of this discussion, we assume mothers allegation that she had pursued a complaint against Romo and was actively seeking housing demonstrated sufficiently changed circumstances. More is required. It is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that undoing of the prior order would be in the best interests of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529; see also In re Zachary G., supra,77 Cal.App.4th at p. 807 [evidentiary hearing required only if it appears proposed change will promote childs best interests].) Although the specific factors considered in determining a childs best interests will naturally vary among children and from case to case, each childs best interests would necessarily involve eliminating the specific factors which required placement outside the parents home. (In re Heather P., supra,209 Cal.App.3d at p. 892.)

Mothers petition alleged her childrens best interests required their return to her care and custody or, at least, the provision of additional reunification services and unmonitored visitation because the children were very bonded to [her] and to each other. Until this case was filed, they always resided together. This family was abused by [Romo], and as an abused spouse, [mother] finally was able to leave him, taking all of her children with her. Because of the years of abuse she suffered, the Court felt that her parenting skills were not strong enough at the time of detention. Since then Mother has completed all the training to make her a stronger parent.

Mothers showing did not necessitate a hearing on her petition. She failed to make even a prima facie demonstration that her seven children, who by then had been out of her custody almost three years, would benefit from a further delay in establishing permanency and stability. Though mother alleged their parent-child bond was close, she presented no evidence to support her assertion that they would benefit by returning to her care or, indeed, that she was able or ready to care for them at the time. Evidence that she had only recently enlisted agency assistance to locate housing is a strong indication she was not able or ready to care for them.

^{More significantly, mother presented no evidence the childrens best interests would be served if she were given additional reunification services or unmonitored visitation. First, the petition is factually incorrect. Even if she had finally been able to extricate herself from Romos control, mother had not tak[en] all of her children with her when she left him. The children were removed from mother and Romo when the Department received information the children had been subjected to repeated incidents of domestic violence between the adults, and had been physically and sexually abused, which mother knew about but did nothing to prevent. Second, under the circumstances, the juvenile court could have questioned the credibility of mothers conclusory assertion that she was now a stronger parent who had finally left her abusive mate. Evidence reflects that, in Spring 2005, mother admitted Romo was still manipulating and harassing her, and undermining her behavior and judgment. He was still able to force her to take drugs. As late as Fall of that year, the Department continued to receive information that mothers relationship with Romo remained ongoing. Toward that end, mothers reliance on In re Hashem H. (1996) 45 Cal.App.4th 1791 is misplaced.}

^{In Hashem H.,the petition included evidence that the parents mental and emotional problems which led to the childs removal from the home were successfully resolved through therapy. (In re Hashem H., supra, at pp. 1794-1796.) That is not the case here. Notwithstanding the extensive training she received in the form of parenting education, individual and group therapy, and sex abuse counseling for victims, mother purposefully violated the courts orders for months. She allowed Romo - who persistently denied any wrongdoing and had not undergone any counseling - to spend unsupervised time with the very children whom he abused. Several of those children continued to fear him and suffer post-traumatic stress disorder and other emotional problems as a result of his actions. Mothers conduct raises serious lingering concerns about her parenting skills and ability to protect her children from the very danger that led to their removal. Her situation, in short, does not begin to resemble the circumstances described in Hashem H.}

Under the circumstances of this case, the juvenile court, incorporating its awareness of the case history, could evaluate the allegations of the petition and conclude mother failed to demonstrate a probability that the childrens return to her care, provision of additional services to her, or unmonitored visits would serve the childrens interests. There was no denial of due process, abuse of discretion or error in the juvenile courts summary denial of mothers section 388 petition. (In re Angel B. (2002) 97 Cal.App.4th 454, 461; In re Marilyn H., supra, 5 Cal.4th at pp. 309-310.)[3]

^DISPOSITION

The order denying mothers section 388 petition is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BOLAND, J.

We concur:

RUBIN, Acting P. J.

FLIER, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

[1] ^{All further statutory references are to this code.}

[2] ^{No childs father is a party to this appeal.}

[3] ^{We reject mothers contention that a hearing was warranted because the court should have looked beyond the petition to consider Yarelis resistance to adoption as sufficient evidence that reinstating reunification services would serve the childrens best interests. Nothing indicates the childrens placements would be disrupted because of Yarelis objections to adoption. Except for Juan L., whose caretaker wished to adopt, the sibling group of six remained in a single, stable placement with a caretaker fully committed to becoming their legal guardian if adoption was not possible. Thus, there is no indication it would be in the childrens interest to disrupt the childrens stable placement and reinstate services on the theory they might reunify with mother. Once reunification services are terminated, the focus shifts from a parents interest in reunification to the childs needs for permanency and stability. (In re Marilyn H., supra,5 Cal.4th at pp. 308-310.) At that point, a rebuttable presumption arises that continued foster care is in the childs best interest. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) Nothing in mothers petition rebutted that presumption or made a prima facie demonstration that the disruption that would accompany renewed services at this late stage could accomplish what two years of services had failed to achieve.}