In re Yanira F.

Filed 3/15/07 In re Yanira F. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Juvenile Court of Los Angeles County, Irwin Garfinkel, Referee Presiding. Affirmed.

Karen B. Stalter, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.

_________________________

INTRODUCTION

Appellant Sandra M. (mother) is the mother of nine children who have been in the dependency system. In this appeal, she challenges the juvenile courts May 5, 2006, order denying her a hearing on a Welfare and Institutions Code section 388 petition.[1] In the petition, mother had sought custody of her three youngest children, or in the alternative, reunification services and liberalized visitation with them. We find unpersuasive mothers contention that the juvenile court abused its discretion in denying her petition without an evidentiary hearing. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The facts leading to the custody of Yanira F., Anthony F., and Byron S.[2]

Mothers children have been the subject of three prior opinions, In re Johnny M. (1991) 229 Cal.App.3d 181, In re Y.F. (B175128), and In re Byron S. (B186314). This prior history is not disputed and thus, we have adopted most of the facts from our prior opinions.

a. Mothers other six children.

Mothers first child, Johnny M., was born in 1986. He was declared dependent due to physical abuse by mother. [Fn. omitted.] In connection with her abuse of Johnny M., mother was also convicted of willful child cruelty, for which she received three years probation. . . . Jurisdiction was terminated on December 1, 1995, when [Johnny M.] was freed for adoption. (In re Byron S., supra, [at p. 3].)

Mothers next five children were Angelina M. (born in 1988), Byron M. (born in 1990), Christopher M. (born in 1992), Stephanie F. (born in 1993) and Stacey M. (born in 1995). They were declared dependent because [mothers] then-husband sexually abused Angelina M., and mother and her husband both used excessive punishment on the children (hitting them with a belt and shoe). Other allegations were also sustained with respect to these children, including: that mother and her husband watched pornographic films in the presence of the children; that mother and her husband engaged in sexual intercourse in the presence of the children; that mother and her husband were frequent users of alcohol and drugs; and that mothers failure to comply with court orders in Johnny M.s dependency case placed these five children at substantial risk of harm and abuse. Mother failed to reunify with these children. Stacey M. was ultimately adopted and the other four children were placed with their fathers. (In re Byron S., supra, [at pp. 3-4].)

In 1989, there was a substantiated case by mother of physical abuse against Stephanie. In 1999, mother was convicted of child endangerment. (Pen. Code,  273.) (In re Y.F., supra, [at p. 4].)

b. The dependency finding of Yanira F. and Anthony F.

Mothers next two children were Yanira F. (born in 2000), and Anthony F. (born in 2002). These children were declared dependent due to mothers physical abuse of Yanira F. (hitting her with an open and closed hand, causing bruises), mothers negligence in storing boric acid within access of the children (Yanira F. poured it on herself), and mothers failure to obtain timely necessary medical treatment for Yanira F. (she had hives and bumps all over her body). Other allegations were also sustained with respect to these children, including: that mother punched Stephanie F. on the top of her head on January 29, 1999 [fn. omitted]; and that mothers failure to comply with prior dependency court orders in her earlier two cases placed Yanira F. and Anthony F. at risk. (In re Byron S., supra, [at p. 4].)

A contested disposition hearing was held on March 25, 26, and May 7, 2004. (In re Y.F., supra, [at p. 10].) On May 7, 2004, the dependency court denied mother reunification services with respect to Yanira F. and Anthony F. They were current dependents of the court, and in the process of being adopted when Byron S. was born. (In re Byron S., supra, [at p. 4].)

The juvenile court concluded that in spite of mothers participation in the programs, mother had not overcome the physical abuse issues. The physical abuse had begun in 1989 with Johnny and persisted to the present with Y.F. The juvenile court also explained that mother had failed to comply with prior court orders. As a result, she had failed to reunify with Johnny, Angela, Brian, Christopher, and Stacy. Mothers parental rights with respect to these five children had been terminated and the children were placed for adoption. In Stephanies case, the court terminated reunification services and placed Stephanie in long-term foster care. Ultimately, the court returned Stephanie to the home of her father. (In re Y.F., supra, [at p. 7].)

The court set a section 366.26 hearing for September 3, 2004. Mother timely filed . . . writ proceedings. (In re Y.F., supra, [at p. 7].)

On July 29, 2004, in In re Y.F. we held that the juvenile court did not err in denying reunification services and setting a section 366.26 hearing because the physical abuse that began in 1989 with Johnny M., continued until 2004, when the juvenile court . . . sustained the physical abuse allegations against mother concerning Y.F. (In re Y.F., supra, [at p. 8].) We rejected mothers contentions that she had made reasonable efforts to treat the problems which led to the dependency and . . . reunification was in the best interests of the children pursuant to section 361.5, subdivision (c). (In re Y.F., supra, [at p. 9].) We stated, [t]here was evidence that mother hit and screamed at Y.F. Additionally, there was evidence that mother hit Y.F. with a shoe, leaving a mark, and hit another sibling with an iron cable. (Ibid.) Further, [w]ith respect to the best interests of the children, mother presented little to no evidence to outweigh the history of physical abuse and mothers failure to reunify with six children. (Ibid.)

c. The proceedings with regard to Byron S.

Byron S. was born in March 2005. He had an irregular heartbeat and jitteriness, although both he and mother tested negative for drugs. Byron S. was quite large at birth (10 lbs., 6 ozs.), which could be attributed to the fact that mother was a diabetic and did not obtain proper care. Mother had obtained prenatal care and took her insulin during the last months of her pregnancy, but not at the beginning. [Fn. omitted.] Byron S. was detained approximately one week after his birth, and placed in the same foster home as Yanira F. and Anthony F. (In re Byron S., supra, [at p. 5].)

On March 17, 2005, the Department [of Children and Family Services] filed a petition seeking to declare Byron S. dependent under . . . section 300, subdivisions (a) [physical abuse], (b) [neglect], and (j) [sibling abuse]. All of the factual allegations in the petition related to mothers prior abuse of Byron S.s siblings, and the risk that abuse posed to Byron S. . . . . (In re Byron S., supra, [at p. 5].)

[O]n March 17, 2005, Byron S. was ordered detained. Mother was granted reunification services, although it was understood that the Department would seek an order denying reunification services at the dispositional hearing. Mother was granted monitored visitation with Byron S. of at least one hour three times per week. Mother was directed to participate in individual counseling to address case issues in all cases.  (In re Byron S., supra, [at p. 6].)

Mother had no job. She lived with a friend and obtained financial support from Byron S.s father. She refused to disclose any information regarding Byron S.s father beyond his name. He supported mother in exchange for her not revealing his information to the Department. . . . (In re Byron S., supra, [at p. 6].)

On April 11, 2005, mother enrolled in a year-long outpatient SHIELDS for Families (SHIELDS) program. . . . (In re Byron S., supra, [at p. 6].)

Mother visited with Byron S. regularly. The visits included Yanira F. and Anthony F. as well. Mothers interaction with Byron S. showed she understood the basics of baby care. However, mother sometimes failed to recognize that certain things posed risks to his safety. Mother also did not know how to respond to her older children. When they wanted things their way, she became stressed and angry. (In re Byron S., supra, [at p. 6].)

[M]other had sporadic attendance at SHIELDS, attending only 10 of her 22 classes. [Fn omitted]. The social worker reported that mother appeared able to care for one child at a time at visits, but was sometimes unable to control three of them at once. On the whole, mothers visits showed a great improvement in interacting with Byron S., and her counselor at SHIELDS also felt mother showed improvement. (In re Byron S., supra, [at p. 7].)

On June 10, 2005, mother enrolled in a twelve-week parenting education program at Childrens Collective. Mother had previously completed 28 weeks of parenting education in 2003-2004. [Fn. omitted.] (In re Byron S., supra, [at p. 7].)

The adjudication hearing was . . . held on June 13, 2005. . . . The trial court amended the petition and sustained it, declaring Byron S. dependent under all three charged subsections of . . . section 300. The trial court continued the dispositional hearing, and appointed Dr. Alfredo E. Crespo, a clinical psychologist, to evaluate mother before the hearing. Mother was ordered to commence parenting education and anger management counseling. (In re Byron S., supra, [at p. 7].)

On June 23, 2005, mother was terminated from the SHIELDS program[ because she was] 95% non compliant with treatment norms concerning her attendance [at the program] by coming to treatment on the days that please[] her and the time of day that she chooses to grace the program with her presence. . . . Moreover, SHIELDS is a program for drug users. Mother was not a drug user and had not been for a number of years. Mother admitted that she lied about being an active drug user in order to get into this program.. . . (In re Byron S., supra, [at p. 8].)

Mother was evaluated by Dr. Crespo on July 7, 2005. Dr. Crespo found her to be particularly defensive in testing. [Fn. omitted.] [H]er scores were typical of someone lacking psychological insight and commonly resentful of authority and societal standards. Although Dr. Crespo concluded mother was not psychotic or intellectually deficient, he believed she was limited in her ability to meet her own needs, let alone those of her children, and there may be little that can be done to change her due to her lack of internal and external resources. He believed her commitment to her children may make her better able to comply with court orders for counseling and for keeping her home relatively safe.  However, he recommended keeping mothers visits monitored, and did not recommend she obtain custody. (In re Byron S., supra, [at p. 9].)

On July 29, 2005, Byron S., Yanira F., and Anthony F. were moved to a new foster home. At a visit on August 20, 2005, . . . mother brought along an unidentified man [even though mother knew this was not allowed]. After this incident, all further visits were monitored . . . . (In re Byron S., supra, [at p. 9].)

The dispositional hearing was held on September 6, 2005. The Department social worker testified that, despite all of mothers parenting education, mother still did not know how to handle and discipline Yanira F. (In re Byron S., supra, [at p. 9].)

Mother testified that she was attending individual counseling monthly . . . , and that she had recently had her first day of attendance at a weekly anger management group. She also stated she had previously completed a year of domestic violence counseling. Her testimony regarding her termination from the SHIELDS[s] program was less than truthful [as she first initially testified that she did not attend the programs because she did not use drugs]. In contrast to SHIELDSs reports of her non-attendance, mother testified that she attended every class at SHIELDS while she was enrolled. Mother admitted that she had completed parenting education in the past, and had children detained from her care after she had completed that education. (In re Byron S., supra, [at p. 10].)

[O]n September 26, 2005, [the juvenile court] denied reunification and set the case for a . . . section 366.26 hearing. However, the court allowed mother to continue visiting her children and encouraged mother to continue with her programs. (In re Byron S., supra, [at p. 10].) [T]he Department was directed to provide mother with the same referrals it would [have offered] if reunification services had been ordered. (Id. [at p. 11, fn. 9].)

In our opinion filed January 25, 2006, In re Byron S., supra, we upheld the juvenile courts order finding Byron S. dependent under section 300, subdivisions (a) [physical abuse], (b) [neglect], and (j) [sibling abuse]. We found unpersuasive mothers contentions that (1) the dependency court erred in adjudicating Byron S. dependent based on the abuse of his siblings, arguing the evidence is insufficient to show that there is a risk of harm to Byron S. And (2) the dependency court erred in denying her reunification services, arguing the evidence is insufficient to show she has not made reasonable efforts to cure the problems which led to the removal of her other children. (In re Byron S., supra, [at pp. 10-11].)

In addressing the section 300, subdivision (a) [physical abuse of sibling place Byron S. in danger] and subdivision (j) finding [sibling abuse], we stated that [m]others abuse of Byron S.s siblings was not an isolated event, but an ongoing practice that continued over several years despite court intervention. The dependency courts conclusion that this history of abuse constituted a substantial risk of abuse to Byron S. is well-supported. [Fn. omitted.] [] . . . The evidence supported the dependency courts determination that mothers three-month history of relating well to Byron S. at visits did not outweigh her nearly twenty-year history of abusing her children. (In re Byron S., supra, [at p. 13].) In Byron S. we also stated that [i]t is undisputed that reunification services were ordered for six of Byron S.s siblings and that mother failed to reunify with them. It is also undisputed that mothers parental rights over Johnny M. and Stacey M. have been terminated. (In re Byron S., supra, [at p. 15].)

In In re Byron S., supra, we then turned to the denial of reunification services (In re Byron S., supra, [at p. 14]) and thus, whether mother has subsequently made a reasonable effort to treat the problems that led to the removal of Byron S.s siblings. (Id. [at p. 15].) We stated, that it was clear that mother attended parent education, and possibly some other programs, in the nineteen years between Johnny M.s detention for abuse and Byron S.s birth. However, it is also clear that these programs were not sufficient to remediate the problems, as mother continued to lose custody of her children for abuse and neglect after she had completed these programs. [Fn. omitted.] (Ibid.) We . . . note mothers failure to obtain pre-natal care and control her diabetes early in her pregnancy with Byron S. (Id. [at p. 16, fn. 11].) Additionally, there is absolutely no suggestion in the record that mother took the initiative during this lengthy period to obtain individual counseling, attend anger management programs, or make any efforts on her own to cure her deficiencies as a parent. Once Byron S. was born, mother had approximately six months of reunification services between the detention hearing and the dispositional hearing. During this time, mothers efforts consisted of lying to get into a program for drug users, and then attending only on the days that please[] her . . . resulting in her termination from the program. By the time of the dispositional hearing, mother had only just begun individual counseling and attending anger management group. In short, previous court-ordered efforts had failed her in the past, mother did little or nothing over nearly two decades, and mothers eleventh hour efforts were minimal. (Id. [at pp. 15-16].)

We denied the petition for extraordinary writ, concluding there was substantial evidence to support the trial courts finding that mother had failed to make reasonable efforts to treat the problems that led to the removal of Byron S.s siblings. (In re Byron S., supra, [at p. 16].)

2. The subsequent proceedings with regard to Yanira F., Anthony F. and Byron S.

Since In re Byron S. was filed, the following occurred:

On November 4, 2005, a status review hearing was held with regard to Yanira F. and Anthony F. The Department reported that mother continued to attend twice-weekly monitored visits. At one session, in October 2005, the social worker observed that when the children arrived, Yanira F. and Anthony F. were happy to see mother, who they immediately hugged. Yanira F. and Anthony F. were very active and mother had difficulty attending to them because she also had to attend to Byron S. Mother was able to calm all three children. Mother fed them, bought them food, and changed Byron S.s diaper. Mother was enrolled in anger management and individual counseling and attending parenting classes. She had also started attending classes for survivors of incest and sexual assault. The juvenile court found it would be detrimental to return the children to mother and that the permanent plan of adoption continued to be appropriate. Mother was to continue to have monitored visits with the children.

On February 25, 2006, the three children had been placed in a pre-adoptive home. The children and adoptive parents had developed a bond and the children were thriving.

A March 19, 2006, letter indicated Yanira F. was being transitioned into a pre-adoptive home. A March 23, 2006, letter indicated mother had attended six help-to-succeed classes. Mother had attended eight therapy sessions at Childrens Collective, Inc. and attended individual and group counseling as well as anger management classes. She had completed a self-help mental health group focusing on stress-reduction and depression at a consumer-run wellness center. There were indications that mothers depression had lifted and she was showing appropriate emotional reactions to issues related to her children.

On March 27, 2006, there was a review hearing for Byron S. and a section 366.26 hearing for all three children. The Department reported that mother continued to attend classes in the hopes of having the children returned to her. Mother had continued monitored visits during which the children seemed happy spending time with her. At times it was difficult for mother to pay attention to the children because each sought attention. Mother brought gifts, purchased meals, and celebrated birthdays. However, the Department had concerns about the children acting out after visits because the mother was making improper promises to the children. The court ordered the duration and frequency of the visits to remain as previously ordered, but the Department could terminate any visit if mothers behavior was not appropriate. The children were declared a sibling group. The juvenile court declined to terminate parental rights because the Department had not completed publication for a father whose identity was unknown. The section 366.26 hearing was continued.

3. The section 388 petition.

On May 1, 2006, mother filed a section 388 petition asking the juvenile court to modify the following orders relating to the mothers three youngest children: (1) the May 7, 2004 order denying reunification services with respect to Yanira F. and Anthony F., and (2) the September 26, 2005 order denying reunification services with regard to Byron S. (At the time, Yanira F. was about five and one-half years old, Anthony F. was almost four, and Byron S. was 14 months old.) Mother requested that the three children be placed with her, or alternatively, that she receive reunification services and liberal visitation, including unmonitored overnight visits.

Mother declared the following. She had a strong mother-child relationship with the children, with whom she regularly visited three times per week. It was becoming difficult to visit the children since they had been placed with the adoptive parents because there were not sufficient monitors.

Letters from different sources confirmed statements in mothers declarations that she had: (1) completed a 12-week parenting class; (2) made progress in an eight-week therapy session, but needed to continue therapy; (3) attended four individual psychotherapy sessions and four group therapy sessions for victims of sexual assault and incest; (4) made progress after completing a self-help mental health group that focused on stress‑reduction and depression, and that she chose to remain as part of the group; (5) made an intake appointment at a mental health center so she could continue therapy; (6) completed a parenting class that was either six or 10 weeks; and (7) had grown after attending three months of anger management sessions.

The juvenile court found that although mother had engaged in a lot of rehabilitative efforts, the section 388 petition had failed to show the requested relief was in the childrens best interests. On May 16, 2006, the juvenile court denied the section 388 petition without holding a hearing.

On May 5, 2006, the Department reported that the childrens behavior had improved greatly since being placed with their prospective adoptive parents. Mother continued to have monitored visits three hours a week and two weekly telephone calls with the children. The monitor reported that mother appeared to love her children very much.

The section 366.26 hearing was continued to August 4, 2006.

Mother filed a notice from the order denying her section 388 petition. We affirm.

DISCUSSION

Mother has not shown that setting aside the prior order is in the best interests of the children.

Mother contends the juvenile court abused its discretion in summarily denying her section 388 petition without holding a hearing. We find this contention unpersuasive.

Pursuant to section 388, a parent may petition the court to set aside, change or modify a previous order. The petition shall be verified . . . and shall set forth in concise language any change of circumstance or new evidence which are alleged to require the change of order or termination of jurisdiction. [] . . . [] If it appears that the best interests of the child may be promoted by the proposed change of order, recognition of a sibling relationship, or termination of jurisdiction, the court shall order that a hearing be held . . . .

The juvenile court has discretion to permit or to deny an evidentiary hearing on a section 388 petition. (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413.) However, [t]he parent need only allege a prima facie case in order to trigger the right to proceed by way of a full hearing. [Citation.] (In re Edward H. (1996) 43 Cal.App.4th 584, 592; In re Aljamie D. (2000) 84 Cal.App.4th 424, 432.) A prima facie showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited. [Citation.] (In re Edward H., supra, at p. 593.) If the petition discloses that a hearing would promote the best interests of the child, the court will order the hearing. [Citation.] (Id. at p. 592; Cal. Rules of Court, rule 5.70.)

The petition must be liberally construed in favor of its sufficiency. [Citations.] (In re Edward H., supra, 43 Cal.App.4th at p. 592; In re Aljamie D., supra, 84 Cal.App.4th at p. 432.) Hence, if the petition shows any evidence that a hearing will promote the best interests of the child, the court must order a hearing. (Ibid.) The court may deny the application ex parte only if the petition fails to state a change of circumstance or new evidence that even might require a change of order or termination of jurisdiction. [Citations.] (In re Angel B. (2002) 97 Cal.App.4th 454, 461; accord, In re Zachary G. (1999) 77 Cal.App.4th 799, 806-807.) We review a summary denial of a hearing and petition for abuse of discretion. (In re Angel B., supra, at p. 460; In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)

Applying these principles, we hold that the juvenile court did not abuse its discretion in denying mother a hearing on her section 388 petition.

Mother has taken steps to improve her life and to start to address the issues that have resulted in her nine children being declared dependents of the court. For purposes of discussion, we assume, without deciding, that these rehabilative efforts and her consistent visitation are significant. However, that is not sufficient to warrant a hearing on the section 388 petition. Rather, to warrant a hearing, mother also has to demonstrate that it is in the best interests of the children to change the prior orders. (In re Angel B., supra, 97 Cal.App.4th at p. 463 [completion of classes does not, in itself, show prima facie that requested modification is in childs best interests].) The required change of circumstances under section 388 involve the childs welfare. (In re Heraclio A. (1996) 42 Cal.App.4th 569, 577.) [A] party must plead facts showing that the best interests of the child may be promoted by the proposed change order . . . . (In re Daijah T. (2000) 83 Cal.App.4th 666, 672.)

Here, the only reference in the petition to the childrens best interest is mothers statement that she has developed a strong mother-child relationship with the three children. While such a relationship is an important factor, alone, it does not entitle a parent to custody, if return will not promote the childs need for permanency. (Cf. In re Marilyn H. (1993) 5 Cal.4th 295, 307.) There is no showing that mother can provide a stable home for Yanira F., Anthony F. and Byron S., can take care of them, provide continuity in their lives, or keep them safe. There is no showing that mother has a job, a means of support, a suitable home, or external sources to assist her. Mother has not brought forth a prima facie showing that returning the children to her will promote the childrens need for permanency.

Mother alternatively requests commencement of reunification services and liberalized visitation. However, the termination of reunification services (and here, the denial of services) is to focus the proceedings on the needs of the child for permanency and stability. (In re Marilyn H., supra, Cal.4th at p. 309; In re Angel B., supra, 97 Cal.App.4th at p. 464.) The change in circumstances shown by mother cannot delay the selection of a permanent home for her children as it would put their interests on hold while waiting to see if mother, who has not reunified with her other six children, will be able to reunify, at some future point. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)

Mother has not made a prima facie showing that it is likely the children will be reunified with her. As discussed above, mothers lack of financial resources, others to assist her, and the lack of a permanent home, fail to demonstrate that it is likely that the children will be reunified with her. There is no showing that mother can take care of Yanira F., Anthony F., and Byron S., or provide them with a suitable and safe home.

Mother has not made a prima facie showing that it is appropriate to give custody of the children to her or to provide reunification services.

DISPOSITION

The order denying mothers section 388 petition is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

CROSKEY, Acting P. J.

KITCHING, J.

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[1] Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.

[2] In our prior opinion regarding this family, In re Byron S. (B186314) we mistakenly referred to the minor as Byron S. instead of the minors correct name, Bryan S. In this opinion, for ease of reference and consistency, we continue to refer to the minor as Byron S. instead of his correct name, Bryan S.