Filed 1/9/14 In re Angelina T. CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re ANGELINA T., a Person Coming
Under the Juvenile Court Law.
D064294
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. NJ13305)
Plaintiff and Respondent,
v.
STACIE T.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Michael
Imhoff, Commissioner. Affirmed.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and
Respondent.
Stacie T. appeals a juvenile court order denying her Welfare and Institutions
Code1 section 388 petition for modification seeking unsupervised visits and conjoint
therapy with her minor daughter, Angelina T. Stacie contends she showed her
circumstances had changed and the proposed modification was in Angelina's best
interests. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2006, one-month-old Angelina became a dependent of the juvenile court
under section 300, subdivision (b), and was removed from parental custody based on
findings Stacie's mental illness and other cognitive limitations prevented her from
providing regular care for Angelina.2 The court placed Angelina in foster care and
ordered reunification services for Stacie.
During the next 12 months, Stacie participated in services and was authorized to
have unsupervised visits with Angelina. Stacie's therapist recommended overnight
visitation, but Angelina's foster mother expressed some concerns about Angelina's
welfare and safety during unsupervised visits.
In September 2007, the San Diego County Health and Human Services Agency
(Agency) filed a section 388 petition for modification, asking the court to order
supervised visits between Stacie and Angelina. Agency's petition alleged Stacie allowed
1 Statutory references are to the Welfare and Institutions Code.
2 Stacie had a history of parental neglect and had been unable to provide regular
care for her three older children because of her developmental disability. Her parental
rights to those children had been terminated.
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Angelina to be in the company of people who had not been approved by Agency; Stacie's
roommate reported Stacie was using drugs; Stacie had asked the roommate to lie for her
in court; and Stacie threatened suicide. The court granted the petition and reinstated
supervised visits. At an 18-month hearing, the court terminated Stacie's services and set
a hearing under section 366.26 to select and implement a permanent plan for Angelina.
Agency assessed Angelina as a happy, healthy two-year-old. She had been living
with the same caregiver for more than a year. Stacie was regularly visiting Angelina, but
the social worker continued to have concerns about Stacie's poor judgment. Stacie
discontinued in-home parenting training because she believed it was a waste of her time.
Nevertheless, she was loving with Angelina, and they enjoyed their time together. The
caregiver was interested in guardianship so she could continue to educate and support
Stacie in reaching her fullest parenting potential. At a selection and implementation
hearing, the court ordered guardianship as Angelina's permanent plan.
Four years later, Stacie filed a section 388 petition, seeking to have Angelina
removed from her guardian and placed with a family friend, or, alternatively, to have
Angelina placed in her care with services. The court ordered a hearing on the petition.
Agency recommended the court deny Stacie's modification request and, instead,
requested a selection and implementation hearing to reconsider Angelina's permanent
plan. Stacie had not participated in services since the dependency case was closed, and
she had not visited Angelina in four months. At their last visit, Angelina did not want to
come near Stacie, which Stacie attributed to the guardian's manipulation of Angelina.
The guardian reported Angelina was frightened when Stacie came to her home. One
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time, when Angelina saw Stacie's car approach, she ran into the house and hid under a
table. Angelina said she cried when she visited Stacie because she missed her grandma,
referring to the guardian.
The social worker noted Stacie had participated in therapy only sporadically since
2008. Stacie had mood swings and did not deal well with conflict. She had visited
Angelina only eight times in the past two and a half years. Angelina said she would cry
or be sad if she had to live with Stacie, and asked to stay with her guardian, who now
wanted to adopt her. The court denied, without prejudice, Stacie's request to remove
Angelina from her guardian and place her with a family friend, or, alternatively, to have
Angelina placed in her care.
Agency filed a section 388 petition, asking the court to set aside its guardianship
order and set a selection and implementation hearing to reassess the most appropriate
permanent plan for Angelina. Stacie filed a section 388 petition, again asking the court to
dissolve the guardianship and place Angelina with her or with family friends. The court
denied Stacie's request for placement of Angelina, but granted an evidentiary hearing on
the other issues raised in both petitions.
The social worker summarized her observations of visits between Stacie and
Angelina from August to October 2012. Stacie was 25 minutes late for one visit and
greeted Angelina with hugs and kisses. Angelina seemed hesitant, but accepted the
affection. Angelina had no difficulty separating from Stacie when the visit ended.
Angelina did not want to go to the next visit, but the social worker convinced her to go.
During other visits, Stacie brought art supplies so she and Angelina could participate in
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an activity together. Angelina was always polite but did not show an emotional
connection to Stacie, and did not reciprocate statements of affection. Angelina began to
experience anxiety as a result of the strained relationship between Stacie and the
guardian.
At a hearing on the section 388 petitions, the court denied Stacie's request to
terminate the guardianship and ordered visits to remain supervised by someone other than
the guardian. The court granted Agency's request to set a section 366.26 selection and
implementation hearing.
In February 2013, Daniel Wright, Ph.D., completed a psychological evaluation of
Angelina. He noted the relationship between Stacie and the guardian had deteriorated in
February 2012, and no visits with Angelina occurred for six months. In August 2012,
Stacie resumed having supervised visits. Angelina reported she was afraid whenever the
guardian was away. She told Dr. Wright that she no longer wanted to visit Stacie.
Instead, she wanted to stay home, be with her family, and live with the guardian forever.
In Dr. Wright's opinion, Angelina would experience no or very limited distress if
visits with Stacie were terminated. Angelina was a well-adjusted child whose level of
emotional functioning was within normal limits. She had developed a strong bond with
the guardian. Dr. Wright believed there was some risk to Angelina's emotional
development if the conflict between Stacie and the guardian continued. He also said
Angelina would have extreme difficulty if she were removed from the guardian's care.
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Stacie filed another section 388 petition, seeking to have Angelina placed with her,
or, alternatively, to have unsupervised visits and/or conjoint therapy with Angelina. The
court ordered an evidentiary hearing on the petition.
In an assessment report, social worker Lisa Olimpio recommended adoption as
Angelina's permanent plan. At the beginning of visits observed by Olimpio, Angelina did
not greet Stacie until asked to do so. At the end of visits, Angelina was excited to see the
guardian and ran to her. She continued to tell the guardian, the visitation monitor,
Olimpio and Dr. Wright that she no longer wanted to visit Stacie. When asked if she
would be sad if she never saw Stacie again, Angelina said no. In Olimpio's opinion, it
would not be detrimental to Angelina to terminate parental rights.
The guardian had parented seven-year-old Angelina for six years and loved her as
her own child. She had been able to meet Angelina's needs. The guardian had submitted
all the necessary paperwork to adopt Angelina and was likely to be approved.
The court held a hearing on Stacie's section 388 petition followed by a selection
and implementation hearing. Stacie testified she had regularly visited Angelina. After
Angelina warmed up to her, she seemed to have a good time. When visits ended, they
hugged and kissed goodbye. Stacie believed she and Angelina had a bond. She wanted
to spend more time with her so that Angelina would have a better understanding of their
relationship. Stacie wanted Angelina removed from the guardian because she was an
inappropriate caregiver who manipulated Angelina.
After considering the evidence and arguments of counsel, the court denied Stacie's
section 388 petition. The court found Angelina was likely to be adopted and none of the
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statutory exceptions to adoption applied. The court terminated parental rights and
referred Angelina for adoptive placement.
DISCUSSION
Stacie contends the court erred by denying her section 388 modification petition
seeking unsupervised visits and conjoint therapy with Angelina. Stacie asserts the
evidence showed she made significant, positive changes necessary to eliminate any risk
of harm to Angelina. She further asserts the evidence showed the proposed modification
was in Angelina's best interests because it would allow them to reestablish their strong
bond in an effort to reunify.
A
Under section 388, a party may petition the court to change, modify or set aside a
previous court order. The petitioning party has the burden of showing, by a
preponderance of the evidence, there is a change of circumstances or new evidence, and
the proposed change is in the child's best interests. (§ 388; In re Jasmon O. (1994)
8 Cal.4th 398, 415-416.) Whether a previous court order should be modified and a
change would be in the child's best interests are questions within the sound discretion of
the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Casey D. (1999)
70 Cal.App.4th 38, 47.) The order will not be disturbed on appeal unless the court has
exceeded the limits of legal discretion by making an arbitrary, capricious or patently
absurd determination. When two or more inferences reasonably can be deduced from the
facts, we have no authority to reweigh the evidence or substitute our decision for that of
the juvenile court. (In re Stephanie M., at pp. 318-319.) In ruling on a modification
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petition, the court may consider the entire factual and procedural history of the case.
(In re Justice P. (2004) 123 Cal.App.4th 181, 189.)
B
Here, the court found Stacie's circumstances had changed because she continued to
participate in counseling and was pursuing her education. The court further found,
however, Stacie did not meet her burden of showing unsupervised visits and conjoint
therapy would be in Angelina's best interests.
The evidence showed Stacie was unable to reunify with Angelina after receiving
18 months of services. Visits had to be supervised because of concerns about Stacie's
poor judgment. Angelina had no emotional connection to Stacie and no problem
separating from her after visits. She consistently and repeatedly told everyone she did
not want visits to continue, and she wanted to stay forever with her guardian, who had
parented her most of her life. According to the social worker, Angelina derived her sense
of safety and security from her placement with the guardian, and not from Stacie.
Although Stacie would like to further strengthen her parental bond with Angelina
through unsupervised visits and conjoint therapy, "[t]he presumption favoring natural
parents by itself does not satisfy the best interests prong of section 388." (In re
Justice P., supra, 123 Cal.App.4th at p. 192.) The court could reasonably find that
ordering further visitation and services for Stacie in an effort to preserve the family
would postpone stability for Angelina, and would not be in her best interests compared to
the certainty of a permanent adoptive home. (See In re Angel B. (2002) 97 Cal.App.4th
454, 464.) The proper focus of this case was on Angelina's need for stability and
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permanency, regardless of Stacie's interest in reunification. (In re Stephanie M., supra, 7
Cal.4th at p. 317; In re Brittany K. (2005) 127 Cal.App.4th 1497, 1507.) The court did
not abuse its discretion by denying Stacie's section 388 modification petition.
DISPOSITION
The order is affirmed.
McDONALD, J.
WE CONCUR:
HALLER, Acting P.J.
McINTYRE, J.
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