Filed 10/8/13 In re Jordan S. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re JORDAN S. et al., Persons Coming B246849
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK79729)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
J.K.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County, Sherri Sobel,
Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Sherman & Associates and Kenneth P. Sherman for Defendant and Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel and
Aileen Wong, Deputy County Counsel for Plaintiff and Respondent.
J.K. (mother) appeals the juvenile court order denying her Welfare and Institutions
Code1 section 388 petition, claiming the court abused its discretion in failing to return
mother‟s three children to her care based on her changed circumstances and the
children‟s best interests. She also appeals the subsequent order establishing legal
guardianship of the children with their paternal grandparents, arguing it is not in the
children‟s best interests. We hold the juvenile court properly denied the section 388
petition and ordered legal guardianship of the children. The orders are affirmed.
I. FACTS AND PROCEDURAL HISTORY
On February 16, 2010, minors Jordan, born in 2004, Justin, born in 2007, and Ja.,
born 2009, were declared dependents of the court based on sustained allegations under
section 300, subdivision (b), that they were at substantial risk of suffering serious
physical harm or illness as a result of their parents‟ failure to adequately supervise or
protect them and mother‟s willful failure to protect the children from the conduct of their
father. The children were removed from the parents‟ custody and the Department of
Children and Family Services (DCFS) placed them in the care of their paternal
grandparents. Mother was provided reunification services and granted regular visits
which were first monitored and later unmonitored.
On August 2, 2011, the juvenile court conducted a review hearing pursuant to
section 366.22, at which the social worker, Jordan, mother and paternal grandfather
testified. The court remarked that mother‟s testimony “was so removed and so aloof
from any empathy, sympathy, or understanding of her children‟s needs from the very
second of what a child needs, the most basic needs, . . . [¶] There‟s no – there‟s a
disconnect between having the children and raising the children for the mother that is
almost unseen in my court. She doesn‟t get what her kids need. When she‟s told what
they need, she kind of fixes it for the moment. But it is enormously important to me that
1
All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
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at no time do we get anything other than a casual either „I don‟t know‟ or „I guess I‟ll talk
to my therapist.‟” The court found by a preponderance of the evidence that return of the
children to either parent‟s care would create a substantial risk of detriment, terminated
reunification services and scheduled a selection and implementation hearing for
November 2011.
The juvenile court also indicated that, due to the children‟s relationship with the
parents, adoption was not an option and parental rights would not be terminated. The
court then ordered the DCFS to have an expert evaluate mother and the children to
“gaug[e] her ability to parent these children appropriately.” Of particular concern to the
court was mother‟s inability to empathize with the children. Dr. Stephen Ambrose was
ordered to conduct an Evidence Code section 730 examination. The court indicated the
assessment was to be conducted without a case history provided.
Dr. Ambrose‟s evaluation was based on his November 2, 2011, interview with
mother followed by his observation of a 45-minute visit between mother and the children.
Dr. Ambrose did not find any evidence of “an empathy deficit significant enough to
prevent reasonably caring and attentive parenting,” nor did he have reason to believe
mother‟s expectations for the children were not age appropriate. However, he noted: “Of
greater concern to me than Ms. [K.‟s ] capacity for empathy and parenting skills [is] her
history of poor relationship choices and the impact of these choices on her children. She
remained in a relationship for many years that resulted in her children experiencing much
instability and, reportedly, at least some exposure to domestic violence. She reports that
she has understood and addressed her „severe co-dependency‟ but that, of course, will
need to be demonstrated over time.” Moreover, while Dr. Ambrose reported that mother
and Ja. seemed to be developing a bond, the attachment between mother and the boys
appeared “quite tenuous.” The boys appeared angry and unwilling to show mother any
affection.
In the December 6, 2011 section 366.26 report, the social worker reported the
children had been placed with the paternal grandparents since November 4, 2009.
Mother continued to have unmonitored weekend visits with the children at her home in
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San Diego every other weekend, as she had been doing since January 2011, with mother
picking up the children on Friday at 6:00 p.m. and returning them on Sunday at 6:00 p.m.
Father had sporadic, monitored visits at the paternal grandparents‟ home.
The social worker summarized a typical day in the grandparents‟ home as follows.
The children wake up at 6:20 a.m.; grandfather helps them get dressed and takes Jordan
to school at approximately 7:45 a.m. While Jordan is at school, Justin and Ja. watch
educational television programs, work on educational workbooks, color, play outside, and
accompany grandfather on errands until approximately 3:00 p.m., when they pick up
Jordan from school. The children eat a snack when they arrive home and play outside
until their grandmother returns home from work. The family eats dinner at
approximately 6:30 p.m. and the children go to bed at around 8:00 p.m.
The social worker reviewed Jordan‟s report card, which indicated he was
progressing satisfactorily in school, having a single excused absence and no tardies
during the grading period. In addition, all of the children‟s medical needs were being
addressed and the children had no diagnosed or suspected developmental or cognitive
delays. The grandparents reported the children did not appear to have any mental health
concerns and were not in need of any mental health services.
The social worker observed during a home visit on November 30, 2011, that the
children were very comfortable in the paternal grandfather‟s presence and constantly
interrupted him in an effort to draw his attention away from her. The children were
affectionate and attached to the paternal grandfather, as evidenced by touching his arm,
sitting near his chair and seeking his permission to get snacks and books from the play
area. The social worker observed the grandfather exercise appropriate parental
discipline. She remarked that the grandparents “appear to be very invested in the well
being of their grandchildren” and capable of meeting their needs. Jordon told the social
worker he wanted to live with the paternal grandparents and visit his parents. Ja. said she
liked living with the paternal grandparents. Justin was “very active” during the interview
and made no statement regarding his preferences.
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The paternal grandparents voiced their commitment to caring for the children
under a permanent plan of legal guardianship which they believed would be in the best
interests of the children. They were informed that, should legal guardianship be granted,
the parents‟ visits would continue as ordered by the juvenile court. DCFS recommended
a permanent plan of legal guardianship for the children.
On January 6, 2012, before the selection and implementation hearing under
section 366.26 was held, mother filed a section 388 petition, stating “It is in my
children‟s best interest for this court to provide me with further reunification services
since I do not believe the grandparents are able or willing to properly care for my
children.” She requested “further reunification services to help [her] address any
perceived shortcomings” and indicated she was “confident” she could “prove to the court
that [she was] a good mother and [could] raise healthy and happy children.”
The combined hearing under sections 388 and 366.26 was conducted over a period
of months, concluding on August 28, 2012. In pertinent part, mother testified to her
belief that the grandparents were not able to safely care for the children. She stated they
did not maintain good hygiene practices, provide adequate medical and dental care or
teach the children basic living and social skills. As examples of these deficiencies,
mother indicated: aggressive stray dogs lived in the grandparents‟ neighborhood and Ja.
had been bitten by a neighbor‟s dog; by the time Jordan visited a dentist, he required 10
fillings; Ja. had severe diaper rashes and open wounds; and the younger children did not
attend preschool. Mother testified it was in the best interests of the children to be with
her and not the grandparents because as she was their mother. Mother and the children
loved each other and she would aid in their social development by teaching them age-
appropriate skills such as learning how to swim and ride a bicycle.
The only changed circumstance about which mother testified was her pending
change of occupation, from an escort to a landlord. Mother testified she shut down the
Web site for her escort service the week before the hearing and she was in escrow to buy
three houses. She intended to support herself and the children from the rental income.
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The juvenile court denied the section 388 petition. After hearing all of the
testimony, the court stated, “I don‟t find there are changed circumstances. I don‟t find
there are even changing circumstances with this mother.” Based on all of the information
before it, the court also concluded it would not be in the children‟s best interests to be
returned to mother.
As to the section 366.26 contested hearing, the court determined the children were
adoptable, but found section 366.26, subdivision (c)(1)(B)(i), the so-called beneficial
relationship exception, applied. The court continued: “The only place these children
have ever felt safe is in the home of the grandparents. They feel sale there. It might not
be the best home. There may be problems. The children feel safe there. So I‟m going to
grant the legal guardianship.” The court appointed the paternal grandparents as the
children‟s guardians, but retained jurisdiction. The parents‟ visitation with the children
continued. Father had monitored visits while mother continued to have bi-monthly
weekend visits, plus additional visits at Thanksgiving and Christmas.
II. DISCUSSION
1. Section 388 Petition
Section 388, subdivision (a), provides in part: “Any parent . . . may, upon grounds
of change of circumstance or new evidence, petition the court in the same action in which
the child was found to be a dependent child of the juvenile court . . . for a hearing to
change, modify, or set aside any order of court previously made or to terminate the
jurisdiction of the court.” Section 388 permits modification of a dependency order if it is
established that there has been a change of circumstances and that the proposed
modification would be in the best interests of the child. (In re Kimberly F. (1997) 56
Cal.App.4th 519, 526.) The petitioning parent has the burden of proving both of these
requirements by a preponderance of the evidence. (In re Stephanie M. (1994) 7 Cal.4th
295, 317.)
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The best interests of the child are of paramount consideration when a modification
petition is brought after termination of reunification services. (In re Stephanie M., supra,
7 Cal.4th at p. 317.) In assessing the best interests of the child, the juvenile court looks
not to the parent‟s interests in reunification but to the needs of the child for permanence
and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
A modification petition “is addressed to the sound discretion of the juvenile court
and its decision will not be disturbed on appeal in the absence of a clear abuse of
discretion.” (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) A court abuses its discretion
when its decision exceeds the limits of legal discretion by making an arbitrary,
capricious, or patently absurd determination. (In re Jasmine D. (2000) 78 Cal.App.4th
1339, 1351.) “„“The appropriate test for abuse of discretion is whether the trial court
exceeded the bounds of reason. When two or more inferences can reasonably be deduced
from the facts, the reviewing court has no authority to substitute its decision for that of
the trial court.”‟” (Ibid.)
The juvenile court found mother failed to show a change in circumstances in the
12 months between the termination of reunification services and the hearing on the
section 388 petition. Substantial evidence supports the finding.
Mother presented virtually no evidence of any change in her living situation,
relationship with the children, or understanding of the issues which led to the dependency
court jurisdiction. Mother demonstrated an admirable commitment to maintaining visits
with the children, driving 400 miles every other weekend to bring the children to her
home in San Diego and return them to the grandparents‟ home in Lancaster. However,
she had been doing this for a number of months before reunification services were
terminated. Thus, it did not constitute a change in circumstances. And while mother had
recently decided on a career move better suited to the raising of young children, her delay
in making the change and the uncertainty of her ability to maintain an adequate income in
her proposed new line of work meant the change of circumstance had yet to be effected.
Clearly, the juvenile court‟s finding that mother did not demonstrate a change of
circumstances is supported by the record.
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So too is the court‟s finding mother failed to establish it would be in the children‟s
best interests to be returned to her custody. Justin and Ja. were removed from the
parents‟ home at very young ages and had spent over half of their lives in their current
placement. According to Dr. Ambrose‟s report of the Evidence Code section 730
examination, while mother and Ja. seemed to be developing an attachment, the bond
between mother and both Jordan and Justin appeared to be “quite tenuous.” While the
grandparents‟ home may not have been perfect, it provided the children with love,
stability and consistent boundaries. Viewing this evidence in the light most favorable to
the juvenile court‟s ruling, we conclude the court acted well within its discretion. The
children had achieved permanence and stability in the care of their grandparents, who
were meeting all their needs. Further reunification services for mother, much less placing
the children in her custody, would have reversed that progress, disrupted their settled
routines and exposed them to all of the stresses and uncertainties of mother‟s evolving
situation.
“It is rare that the denial of a section 388 motion merits reversal as an abuse of
discretion[.]” (In re Kimberly F., supra, 56 Cal.App.4th at p. 522.) This is not one of
those rare occasions. The juvenile court did not abuse its discretion in denying mother‟s
petition. (In re Stephanie M., supra, 7 Cal.4th at pp. 318–319.)
2. Order of Legal Guardianship
Section 366.26, subdivision (c)(4)(A) provides: “If the court finds that adoption of
the child or termination of parental rights is not in the best interest of the child, because
one of the conditions in clause (i), (ii), (iii), (iv), (v), or (vi) of subparagraph (B) of
paragraph (1) or in paragraph (2) applies, the court shall either order that the present
caretakers or other appropriate persons shall become legal guardians of the child [or]
order that the child remain in long-term foster care . . . . Legal guardianship shall be
considered before long-term foster care, if it is in the best interests of the child and if a
suitable guardian can be found.”
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Here, the children had been placed with the paternal grandparents since
November 4, 2009 and had lived with them on-and-off even before that time. Jordan, the
oldest of the children and therefore presumably the one with the strongest memories of
living with his parents as a family, stated he wanted to live with his grandparents and
continue to visit with his parents. Six-year-old Justin and four-year-old Ja., had lived
with their grandparents since they were two years old and ten months old, respectively.
The grandparents attended to all of the children‟s needs and provided a safe and stable
home for the minors, who felt secure in their care. Consequently, we find no error in the
juvenile court‟s order of legal guardianship or the appointment of the paternal
grandparents as the children‟s legal guardians.
III. DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KUMAR, J.*
We concur:
TURNER, P. J.
MOSK, 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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