Filed 5/4/15 In re Jospeh M. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
In re JOSEPH M., et al., Persons Coming B256877
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. CK45933)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent.
v.
JOSELYN H.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County. Carlos E.
Vasquez, Judge. Affirmed.
Anne E. Fragasso, under appointment by the Court of Appeal, for Defendant and
Appellant.
Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
and Stephen D. Watson, Deputy County Counsel for Plaintiff and Respondent.
Joselyn H. (mother) appeals from an order denying her petition requesting
reunification services and unmonitored visitation, filed pursuant to Welfare & Institutions
Code section 388.1 Mother contends that the juvenile court abused its discretion by
denying her petition because she showed both a change of circumstances and that
granting the petition would be in the best interests of her four children. We find no abuse
of discretion in the trial court’s order and therefore affirm.
COMBINED STATEMENT OF THE CASE AND FACTS
The family consists of mother, Octavio M. (father),2 and four children: Joseph M.
(born Sept. 2007); J.M. (born Dec. 2008); Octavio M., Jr. (born Dec. 2010); and Abbie
M. (born April 2012).
Initial referral and investigation
The family came to the attention of the Los Angeles Department of Children and
Family Services (DCFS) on October 31, 2011, when DCFS received a referral alleging
that the parents were physically fighting almost every day after using crystal
methamphetamine. A DCFS social worker met with mother privately on the same day,
but mother denied the allegations of domestic violence. Mother admitted she and father
had past experience with domestic violence but they had learned to address these issues
without the use of force. Father also denied the allegations.
On December 29, 2011, the parents agreed to a voluntary family maintenance
plan. The parents agreed to refrain from violence and controlled substance use, and to
actively participate in services to address family and partner issues. DCFS noted that
mother had lost her two older children, Herman T. and Crystal M. in a prior juvenile
dependency proceeding which involved issues of physical abuse and domestic violence.
The two older children were adopted by maternal grandmother (MGM) after the parental
rights of mother and father were terminated.
1 All further statutory references are to the Welfare & Institutions Code.
2 Father is not a party to this appeal.
2
When a DCFS social worker visited with mother and the children on January 10,
2012, she observed that mother’s eye was swollen and red and mother was bruised on her
neck and arms. Mother claimed she and father had a verbal altercation the day before
and a neighbor called the police. The police took father to jail but mother was certain
father was going to be released because he was not the abuser. Mother denied that she
and father had a physical altercation and attributed her swollen eye to a spider bite.
The social worker visited father at the police station where he also denied
domestic violence but stated he held mother down to prevent her from harming him.
Father said that mother’s swollen eye was from a bug bite.
The arresting officer informed the social worker that an eyewitness saw father hit
mother in the eye during their argument on January 9, 2012. The witness also observed
father holding and shaking mother. In addition, mother provided a false name to the
police when they arrived. DCFS noted that mother may have provided a false name
because there was an active warrant out for her arrest. Mother would not cooperate with
law enforcement, and declined to seek a restraining order to protect the children. DCFS
opined that mother and father were minimizing their issue with domestic violence and
were putting the children’s safety and emotional wellbeing at risk.
On January 19, 2012, mother was arrested on two active warrants. Joseph, J. and
Octavio were detained.
Section 300 petition and detention hearing
On January 24, 2012, DCFS filed a section 300 petition alleging under subdivision
(b) that mother failed to protect Joseph, J. and Octavio from domestic violence. The
juvenile court held a detention hearing the same day, which mother did not attend. The
court detained the children and gave DCFS discretion to place them with any appropriate
relative or extended family member. Mother was granted monitored visits.
Joseph was placed with paternal aunt V.M., while J. and Octavio were placed with
paternal aunt A.M.
3
Jurisdiction/disposition report
On March 2, 2012, DCFS filed a jurisdiction/disposition report noting that initially
mother refused to personally meet with the social worker due to an open arrest warrant
for mother. The social worker then interviewed mother telephonically. Though mother
continued to deny any current domestic violence, she admitted she and father engaged in
verbal altercations, but not while the children were home. DCFS was unable to schedule
visitation for mother with her children as mother remained on the run from law
enforcement and expressed concern about being arrested on her outstanding warrant.
Mother was not enrolled in any services or programs, although DCFS had provided
referrals for parent education, individual and family counseling, and drug testing.
Mother and father’s neighbor was also interviewed. The neighbor’s front door
faced the parent’s front door providing a clear view into the parents’ residence, which
was open when the parents started fighting on January 9, 2012. The neighbor observed
father hitting mother all over with a belt. The neighbor characterized this as “routine”
behavior. He got tired of it and called the police. The neighbor observed father punch
mother in the face. He stated that mother tells father to stop but then covers for him. The
neighbor observed that mother is a great mother when she is alone, she is “peaceful and
plays outside with her children.” However, when father is present things change.
The neighbor and the parents had been neighbors for approximately one year
during which time the parents’ verbal and physical altercations would take place “at least
[four] times per week.”
Mother made her first appearance in the case at the March 2, 2012 pretrial
resolution conference, when the juvenile court granted her four hours of monitored
visitation per week and set the adjudication for April 4, 2012.
Interim review report
DCFS filed an interim review report on March 28, 2012. Joseph, then four and a
half years old, had been interviewed. The social worker determined that Joseph was not
able to distinguish the difference between the truth and a lie. However, Joseph said he
saw father hit mother on the arm. He said they fight a lot. Then three-year-old J., who
4
also was not able to distinguish the truth from a lie, also stated that father hit mother, but
was unable to provide any further statements as to the allegations. Octavio was too
young to be interviewed.
Adjudication
On April 4, 2012, the juvenile court sustained a single count under section 300,
subdivision b.3 The children were declared dependents of the court and removed from
parental custody. Mother was granted monitored visits and, over the objection of DCFS,
both parents were provided with reunification services.4 Mother was ordered to
participate in DCFS-approved individual counseling to address domestic violence and
other case issues, a domestic violence support group for victims, and parenting classes.
The court set a six-month review hearing for November 8, 2012.
Abbie’s birth and section 300 petition
Mother gave birth to Abbie in April 2012. Hospital staff informed DCFS that
mother gave false and inconsistent information regarding her name, address, and medical
insurance, and was anxious to leave the facility with the baby. Mother had tested positive
for opiates, although she claimed she had been prescribed Vicodin.
3 The following allegation was sustained: “B-1 [¶] The children[’s] . . . mother . . .
and father . . . have a history of engaging in violent altercations. On 1/9/2012, the father
struck the mother’s face with the father’s fists inflicting swelling and bruising to the
mother’s eye. The father also caused the mother to sustain scratches and bruising to the
mother’s arms. The mother failed to protect the children in that the mother denied the
father’s physical assault against the mother to law enforcement officers. The father was
arrested for corporal injury to a spouse. Such violent conduct on the part of the father
against the mother and the mother’s failure to protect the children endangers the
children’s physical health and safety and places the children at risk of harm.”
4 DCFS objected to the provision of reunification services under section 361.5,
subdivision (b)(10), which states that reunification services need not be provided to a
parent if the court has previously ordered termination of reunification services for any
sibling or half sibling of the child because the parent or guardian failed to reunify with
the sibling or half sibling, and the parent has not made a reasonable effort to treat the
problems that led to the removal of that sibling.
5
When interviewed, mother denied using controlled substances during her
pregnancy, except Vicodin which was prescribed by her dentist. She admitted using
crack cocaine and marijuana five years earlier. Mother said that two weeks before giving
birth to Abbie, she was participating in a program at U-Turn Alcohol and Drug Education
but had not returned to the program since Abbie’s birth. The social worker verified
mother’s enrollment in the U-Turn program. Mother tested positive for opiates when she
enrolled. The social worker also confirmed that mother had been prescribed Vicodin by
her dentist in February 2012, but upon learning that mother was pregnant the dentist had
told mother to stop taking the drug.
On April 13, 2012, DCFS filed a section 300 petition on behalf of Abbie, and the
juvenile court detained the child in foster care.5 Abbie was placed with non-relative
extended family members Joe and Lucia C.
Jurisdiction/disposition regarding Abbie
On May 8, 2012, DCFS filed a jurisdiction report regarding Abbie. On May 2,
2012, mother informed DCFS of her two outstanding warrants, one for providing a false
identification to the police when she was caught shoplifting, and one for leaving a court-
mandated drug treatment program. DCFS also reported on mother’s mental health
history: mother had been previously diagnosed with bipolar disorder, and had a history
of depression, mood swings, and suicide attempts. Mother also reported she was
sexually, emotionally, and physically abused throughout her life. She claimed to have
5 The petition filed on behalf of Abbie contained a single count under subdivision
(j), abuse of sibling, which read: “The child[’s] . . . mother . . . and father . . . have a
history of engaging in violent altercations. On 1/9/2012, the father struck the mother’s
face with the father’s fists inflicting swelling and bruising to the mother’s eye. The father
also caused the mother to sustain scratches and bruising to the mother’s arms. The
mother failed to protect the child’s siblings . . . in that the mother denied the father’s
physical assault against he mother to law enforcement officers. The father was arrested
for corporal injury to a spouse. Such violent conduct on the part of the father against he
mother and the mother’s failure to protect the child’s siblings endangers the child’s
physical health and safety and places the child at risk of harm.
6
been recently placed back on psychotropic medication with the help of Tarzana
Treatment Center.
Mother’s criminal background check revealed that she was convicted of theft in
2001 and 2004, driving with a suspended license in 2002, petty theft and grand theft in
2008, and petty theft in 2012. There were also outstanding arrest warrants for false
impersonation, grand theft, and petty theft.
On May 21, 2012, the juvenile court sustained Abbie’s section 300 petition under
subdivision (j). The disposition hearing was set for August 6, 2012.
On June 28, 2012, DCFS reported that mother had been discharged from Tarzana
Treatment Center on May 21, 2012, for violating several rules. Codeine and a cell phone
were found in mother’s room. Cell phones were not allowed in the program, and mother
did not have authorization to have the Codeine medication. Mother also cheated on her
medications and violated the program’s curfew.
On May 23, 2012, mother was arrested and detained at the Regional Detention
Facility in Lynwood, California. According to a paternal aunt, mother had been arrested
for stealing and identity theft after being caught shoplifting at a grocery store.
At the August 6, 2012 disposition hearing, the juvenile court declared Abbie a
dependent, removed her from parental custody, granted mother four hours of monitored
visitation per week, and ordered reunification services over DCFS’s objection. Mother
was ordered to participate in a domestic violence support group for victims, parenting
classes, and individual counseling to address domestic violence and other case issues. A
six-month review hearing was set for February 5, 2013.
Six-month review hearings
DCFS filed a status review report on November 8, 2012. Mother had begun
participating in the Los Angeles County Jail’s Merit Beginnings program on August 14,
2012. Merit Beginnings was an optional six-week course for inmates focusing on
personal relationships, parenting, drug education, leadership, and job skills. Mother had
not, however, completed any court-ordered programs.
7
Prior to her incarceration, mother had been fairly consistent with visiting the
children. After her incarceration, J. and Octavio had visited mother only once. J. reacted
badly to the visit and they had not visited since. Joseph had not visited mother.
At the six-month review hearing for Joseph, J. and Octavio on November 8, 2012,
the juvenile court found mother in partial compliance with her case plan and ordered
further reunification services. The 12-month review hearing was set for August 28, 2013.
In December 2012, DCFS was informed that mother was transferred to the Central
California Women’s Facility in Chowchilla, California.
The six-month review hearing for Abbie took place on February 5, 2013. The
juvenile court found that continued jurisdiction was necessary because mother’s progress
was minimal.
Mother’s progress while incarcerated
On March 22, 2013, DCFS reported that mother had been transferred to the
California Institute for Women (CIW) in Corona, California. She was enrolled in several
programs at CIW, including parenting classes, an anger management program, life skills
classes, a substance abuse program, and a support group.
In July 2013, DCFS reported that mother had completed CIW’s 12-week anger
management and parenting programs. In addition, mother completed a basic course in
nonviolent conflict resolution, and received a certificate of appreciation for participating
in CIW’s substance abuse program from March 21, 2013 to June 21, 2013.
Twelve-month review hearing
In its interim review report filed in July 2013, DCFS recommended termination of
reunification services for mother. DCFS cited mother’s extensive history of substance
abuse, and also noted that mother previously failed to reunify with two older children.
DCFS explained that mother was unable to maintain sobriety outside of a controlled
environment, and noted that mother had previously escaped from a drug treatment
program and had used false impersonation. Specifically, DCFS stated: “Mother has had
eighteen months to complete all of her Court Ordered Services. Prior to her
8
incarceration, mother did not complete or remain actively enrolled in any of her services.
Mother is enrolled into services at this time, because she is in a controlled environment.”
The 12-month review hearing for all the children took place on August 28, 2013.
The court found that mother was in partial compliance with the case plan. The parents
were advised that the court may consider termination of parental rights at the next
hearing, and that all four minors were adoptable. The court found that the parents had not
consistently and regularly visited with the children, had not made significant progress in
resolving the problems that led to the children’s removal from the home, and had not
demonstrated the capacity and ability to complete the objectives of the treatment plans
and provide for the well-being of the children. The court further found that there was not
a substantial probability that the children would be returned to the parents’ custody
within the next period of review, therefore it terminated reunification services.
The juvenile court set the matter for a section 366.26 hearing on January 2, 2014.
DCFS filed a section 366.26 report which indicated that all of the children’s
respective caregivers were interested in adoption. DCFS requested that the court hearing
be continued so that DCFS could complete the adoption home studies. The matter was
continued to May 1, 2014.
Mother’s continued progress while incarcerated
Mother completed her substance abuse program on August 30, 2013, a parenting
program on September 24, 2013, a parenting education program in December 2013, and
an advanced level Alternatives to Violence workshop on December 22, 2013.
On February 12, 2014, DCFS received a letter from the Second Call Anger
Management/Domestic Violence program, indicating mother had attended five sessions
of individual case management and five domestic violence support groups since
August 7, 2013.
Mother’s section 388 petition
Mother filed a section 388 petition on March 19, 2014, requesting reinstatement of
reunification services and unmonitored visitation. Mother alleged the following changed
circumstances: she had been released from custody on March 19, 2014. She completed
9
two parenting classes, two domestic violence programs, participated in individual
counseling, and although not in her case plan, completed anger management and
substance abuse programs. Mother had visits with her children and called her children
regularly while incarcerated. Mother had a stable home with family.
Mother claimed that her requested changes were in the best interests of the
children because the children have a bond with her and she believed that with six
additional months of reunification she could successfully reunify with all four children.
Mother attached the following documents to her section 388 petition: (1) a letter
dated March 28, 2013, confirming that mother had enrolled in a substance abuse program
on March 21, 2013; (2) a certificate of completion dated June 18, 2013, for the
Heart2Heart Support Services 12-week parenting program; (3) a certificate of completion
dated June 19, 2013, for the Heart2Heart Support Services 12-week anger management
program; (4) a certificate of appreciation dated June 21, 2013, from HPC Above the
Horizon substance abuse prevention program, recognizing mother’s participation in the
program from March 21, 2013 to June 21, 2013; (5) certificates of completion dated July
28, 2013 and August 23-25, 2013, for Alternatives to Violence Project’s basic course in
nonviolent conflict resolution; (6) a certificate of completion dated August 30, 2013, for
CIW’s substance abuse treatment program; (7) a certificate of completion dated
September 19, 2013, for the Friends Outside parenting program; (8) a letter dated
December 22, 2013, indicating that mother participated in a 20-hour advanced level
Alternatives to Violence workshop; (9) a letter dated February 12, 2014, from 2nd Call
indicating that mother participated in its anger management/domestic violence program
from August 7, 2013 through September 11, 2013; and (10) an undated certificate of
completion from CIW’s Amity Foundation recognizing mother’s completion of
assignments with Amity from March 21, 2013 to August 30, 2013.
The juvenile court set a hearing on mother’s section 388 petition for May 23,
2014.
10
Status report and section 388 response
DCFS filed a status report on May 1, 2014, and a status report/response to
mother’s section 388 petition on May 8, 2014. DCFS reported that the children had been
visiting mother on a monthly basis since May 2013, and on a weekly basis since mother’s
March 19, 2014 release from prison. Abbie’s caregiver reported that Abbie did not
recognize mother and would say “No, no” when mother extended her arms. On a visit in
April 2014, mother spent 40 minutes talking on her cell phone while the children played
with each other. On some visits, mother brought an adult female friend who mother
claimed was her aunt or cousin. Abbie’s caregiver said the adult friend was mother’s
former lover. Abbie’s caregiver also stated that mother had once asked her for $40
without specifying why.
The clinical manager at mother’s sober living home reported that mother was
working 40 hours per week, did her chores, and had no behavioral issues. Depending on
their ages and length of stay, it was possible for the children to stay at the home with
mother.
DCFS recommended that the section 388 petition be denied. DCFS noted that the
children had been in stable homes since detention, and all of the caregivers were
committed to providing the children with permanent homes through adoption. Octavio
and Abbie had special needs that were being met by their respective caregivers. Mother
never asked about the children’s special needs or services.
DCFS pointed out that mother had an extensive history with DCFS going back to
2001. Mother’s parental rights to her two oldest children were terminated and they were
adopted by the maternal grandmother. Mother had not shown a commitment to change.
She did not begin participating in court-ordered services until she was incarcerated, and
she had not demonstrated a full commitment to the children since her release.
DCFS opined that it was not in the children’s best interests to delay permanence,
when mother had yet to demonstrate that she was committed to, or able to, provide for the
children.
11
On May 23, 2014, DCFS provided a last minute information for the court that
several recent Facebook postings called into question mother’s commitment to sobriety
and lifestyle change. On May 4, 2014, mother posted the statement “Happy 5 de mayo
raza chilling drinking dos equis. Dos a rita. Have a boom ass Sunday.” On May 16,
2014, mother posted a picture of herself holding a Modelo beer can. On the morning of
May 18, 2014, mother posted a picture of Joseph with the statement, “G morning my
firme raza may all of you have a good one. On my [sic] to see my handsome angel &
may god be with all of u enjoy.” That evening, mother posted a picture of a Dos Equis
beer can with the statement, “G nite mi firme raza my [sic] all of u have a blessed night.
I truly hope all of u had a firme weekend.” DCFS also advised the court that all of the
children’s caregivers had expressed strong concerns about mother reunifying with the
children. In particular, Abbie’s caregivers provided a lengthy email noting, among other
things, that the children did not acknowledge mother during visits and that mother had
confessed to Abbie’s caregivers that she used drugs while she was pregnant with Abbie.
Abbie referred to her caregivers as mom and dad. In addition, Abbie was attending
therapy at the regional center three to four times a week. Mother had never participated
in any of those therapies, nor asked to participate.
Hearing on section 388 petition
The juvenile court considered mother’s section 388 petition on May 23, 2014.
Counsel for mother argued that a change of circumstances had been shown because
mother had participated in individual counseling, completed two parenting classes and
two domestic violence programs, and participated in programs for anger management,
substance abuse, life skills, victims of violence, and convicted women against violence.
Counsel also argued that it was in the children’s best interests to reunify with mother.
Counsel for the children joined with counsel for DCFS in asking that the section
388 petition be denied.
While the juvenile court believed that mother’s progress may be indicative of
changing circumstances, she failed to demonstrate changed circumstances by a
preponderance of the evidence. In addition, the juvenile court agreed that it would not be
12
in the best interests of the children to grant any of mother’s requests. The children had
been out of mother’s care for an extended period of time and were attached to their
respective caregivers. In sum, the court found that mother had not demonstrated under
either prong of section 388 that her request should be granted.
On June 6, 2014, mother filed her notice of appeal from the juvenile court’s order
denying her section 388 petition.
DISCUSSION
I. Applicable law and standard of review
Section 388 provides, in relevant part: “Any parent or other person having an
interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of
change of circumstance or new evidence, petition the court . . . for a hearing to change,
modify, or set aside any order of court previously made.” “Section 388 provides the
‘escape mechanism’. . . built into the process to allow the court to consider new
information. [¶] . . . Even after the focus has shifted from reunification, the scheme
provides a means for the court to address a legitimate change of circumstances . . . . [¶]
. . . [T]he Legislature has provided the procedure pursuant to section 388 to accommodate
the possibility that circumstances may change after the reunification period that may
justify a change in a prior reunification order.” (In re Marilyn H. (1993) 5 Cal.4th 295,
309.)
That being said, “[i]t is not enough for a parent to show just a genuine change of
circumstances under the statute. The parent must show that the undoing of the prior order
would be in the best interests of the child. [Citation.]” (In re Kimberly F. (1997) 56
Cal.App.4th 519, 529; § 388, subd. (b).) “[T]he burden of proof is on the moving party
to show by a preponderance of the evidence that there is new evidence or that there are
changed circumstances that make a change . . . in the best interests of the child.
[Citations.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
“‘Whether a previously made order should be modified rests within the
dependency’s court’s discretion, and its determination will not be disturbed on appeal
unless an abuse of discretion is clearly established.’ [Citation.]” (In re Amber M. (2002)
13
103 Cal.App.4th 681, 685.) “‘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 deducted from the facts, the reviewing court has no authority to substitute its decision
for that of the trial court.’ [Citations.]” (In re Stephanie M., supra, 7 Cal.4th at pp. 318-
319.) Thus, we will not reverse a juvenile court’s denial of a section 388 petition
“‘“unless the trial court has exceeded the limits of legal discretion by making an
arbitrary, capricious, or patently absurd determination [citations].”’ [Citations.]”
(Stephanie M., at p. 318.)
II. The juvenile court did not abuse its discretion in denying mother’s section 388
petition
In her section 388 petition, mother argued that her release from custody and
completion of most of her court-ordered programs constituted a change of circumstances
sufficient for a modification of the court’s order terminating reunification services.
Mother further argued that her proposed changes were in the best interests of her children
because the children have a bond with her and she believed she could successfully
reunify with them.
A. Change of circumstances
Mother argues that DCFS minimizes her extraordinary efforts to avail herself of
services while incarcerated. Mother argues that given the year of continuous
participation in services required, and her cooperative attitude while engaged in those
services, mother demonstrated the change of circumstances required by section 388.
Mother argues that the juvenile court erred in describing her circumstances as changing,
rather than changed.
DCFS responds that mother’s recent completion of court-ordered services must be
viewed in the context of the proceedings as a whole. DCFS points out that mother did
nothing to complete her reunification requirements until she was incarcerated. And,
while she did eventually enroll in individual counseling, it took her two years to do so.
DCFS points out that mother’s circumstances have remained the same for over a decade,
starting with the detention of her oldest child in 2001. Despite losing her two oldest
14
children to adoption, mother continued to expose her children to domestic violence.
After a violent altercation in the children’s presence in January 2012, mother gave a false
name to the police and refused to cooperate. Despite having a swollen right eye and
bruises to her neck and arms, mother denied having a physical altercation with father. It
was not until she was incarcerated that mother participated in programs. Under the
circumstances, DCFS argues, mother’s completion of these programs and delayed
enrollment in individual counseling cannot be considered changed circumstances.
To support a section 388 petition, the change in circumstances must be substantial.
(In re Ernesto R. (2014) 230 Cal.App.4th 219, 223 [mother’s recent sobriety and
completion of a drug treatment program did not constitute a substantial change of
circumstances].) As DCFS points out, mother has a long history of problems with
domestic violence. Her completion of her court-ordered programs during incarceration is
commendable, but does not demonstrate a substantial change of circumstances. (Ibid.)
This is especially true given mother’s recent Facebook postings, which reveal that she
had not implemented true change after completing substance abuse programs.
In support of her argument that she has demonstrated changed circumstances,
mother cites In re Mary G. (2007) 151 Cal.App.4th 184, 205-206 (Mary G.). In Mary G.,
the mother sought a change of order under section 388 because she had completed a
detoxification program, was in drug treatment, was attending NA meetings, and was
seeking mental health treatment. The juvenile court’s determination that the mother had
not demonstrated changed circumstances was affirmed. Mother argues that her situation
is different because, in contrast to the mother in Mary G., she had completed all but the
individual counseling component of her case plan. While mother is correct that she made
more progress than the mother in Mary G., there are also several similarities between the
two situations. Like the mother in Mary G., mother had for many years engaged in
behavior that was detrimental to her children -- a pattern which continued even after she
lost custody of her two oldest children. And, like the mother in Mary G., mother did not
engage in rehabilitative services when her children were removed from her. Her
participation in services was brief compared to the length of time she dealt with issues of
15
domestic violence. In addition, mother’s behavior on visits with the minors and her
recent Facebook postings showed that mother had not made a significant change in her
commitment to the children or to sobriety.
The record supports the juvenile court’s finding that mother did not demonstrate
changed circumstances. Instead, she showed only changing circumstances. The juvenile
court did not abuse its discretion in determining that modification of the existing order
was not warranted.
B. Best interests of children
In order to prevail on a section 388 petition, mother was required to show not only
significant changed circumstances, but also that a change of order would be in the
children’s best interests. (In re Daijah T. (2000) 83 Cal.App.4th 666, 672.) We have
determined that mother failed to show changed circumstances warranting a change of
order. We further conclude that even if mother had made such a showing, she failed to
demonstrate that an order providing mother with further reunification services and
unmonitored visitation would be in the children’s best interests.
The factors to be considered when determining a child’s best interest were
discussed in In re Kimberly F. (1997) 56 Cal.App.4th 519. The factors include: (1) the
seriousness of the problem which led to dependency; (2) the strength of the relative bonds
between the dependent children to both parent and caretakers; and (3) the degree to which
the problem is easily removed or ameliorated. (Id. at p. 532.)
Mother argues that these factors weigh in favor of granting her section 388
petition. Mother argues that she eliminated the problem that led to the dependency when
she participated in programs while incarcerated. Mother points out that she did not return
to father after her release from custody, but was living on her own, working, and engaged
in individual counseling.
As to the second prong, mother argues that the three older children were living
with her before they were removed, and that mother had visitation with all of the children
while she was in custody and after her release. As to Abbie’s caretakers’ claim that
mother never asked about or participated in special services for Abbie, mother argued
16
that the caretakers admitted that mother always asked about Abbie. If the caretakers did
not provide mother with information about Abbie’s services, mother argues, it was not
because mother did not give them the opportunity.
Mother cites In re Sean E. (1992) 3 Cal.App.4th 1594 for the proposition that
some dependency cases necessitate additional time so that the changing relationship
between the minors and the parent can be examined. (Id. at p. 1599.) Mother argues that
it is in the best interests of the children to allow her the opportunity to build on the
relationship she already had with the older children and which she had begun with Abbie.
The juvenile court “strongly agree[d]” with the children’s counsel that mother’s
requested changes would not be in the best interests of the children. The court stated:
“they have been out of the mother’s care for an extended period of time, and as the report
indicated, they are attached to the caregivers, and the court simply does not find that it
would be in the best interest of the children to grant any of the mother’s requests . . . 28
months have already passed since family reunification was instituted.”
The record supports the juvenile court’s discretionary decision. Mother had a long
history of trouble with domestic violence, which led to the loss of her two oldest children
to adoption. The three older children involved in this proceeding had been with their
respective caretakers for over two years, were doing well, and were likely to be adopted.
Abbie had been with her caretakers since her birth in April 2012. There was evidence
that during visits the children were not engaged with mother and that mother acted
inappropriately. The children’s caregivers all had concerns about mother being granted
further reunification services. Granting mother’s request for further reunification
services would further delay permanency planning for the children, who were in stable
placements with caregivers committed to adoption. In addition, there was evidence that
granting mother’s request for unmonitored visits was contrary to the best interests of the
children, especially because the children did not appear bonded to mother; she talked on
her cell phone during visits; and she brought unidentified companions to the visits.
During the pendency of this proceeding it became apparent that mother’s bond
with the children was secondary to the children’s bonds with their caretakers. This is
17
especially true of Abbie, who never lived with mother. In addition, mother’s issues with
domestic violence were longstanding and not easily ameliorated, especially considering
that she continued to remain victim to this problem even after her two oldest children
were adopted. Under the circumstances we find that the juvenile court did not abuse its
discretion in determining that mother’s requested changes under section 388 were not in
the best interests of the children.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, P. J.
BOREN
__________________________, J.
ASHMANN-GERST
18