Filed 7/21/21 In re Shanon H. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re Shanon H., a Person B310659
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. No.
19CCJP00567A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
S.M.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Pete H. Navarro, Juvenile Court Referee. Affirmed.
Cristina Gabrielidis, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Sarah Vesecky, Senior Deputy
County Counsel, for Plaintiff and Respondent.
________________________
S.M. (Mother) appeals the juvenile court’s orders denying
her Welfare and Institutions Code section 3881 petition to obtain
additional family reunification services and terminating parental
rights to her two-year-old daughter, Shanon H. Mother contends
the court erred in denying her section 388 petition without a
hearing and that error requires reversal of the order terminating
parental rights. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Dependency Petition
On January 28, 2019 the Los Angeles County Department
of Children and Family Services (Department) filed a section 300
petition alleging Mother had a history of mental and emotional
problems, including erratic and delusional behavior, that placed
then-newborn Shanon at substantial risk of serious physical
harm; the same unresolved mental health issues played a role in
the termination of Mother’s parental rights over Mother’s older
son in prior dependency proceedings;2 Shanon’s father, Chris H.,
suffered from severe intellectual disabilities that prevented him
1 Statutory references are to this code unless otherwise
stated.
2 The prior dependency proceedings involving Mother’s older
son resulted in two appellate decisions by this court: In re S.M.
(Aug. 20, 2014, B251450) [nonpub. opn.] and In re S.M. (Jan. 19,
2016, B264369) [nonpub. opn.].
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from providing Shanon with regular care and supervision;3 and
both Mother and Chris had a history of domestic abuse that
placed Shanon at substantial risk of serious physical harm.
Following a hearing, the court ordered Shanon detained from
both parents.
2. The Jurisdiction and Disposition Hearings
In its report prepared for the April 2019 jurisdiction
hearing, the Department stated Mother was chronically
unhoused—sleeping in bus terminals and train stations—and
unable to provide regular care for Shanon. Mother also suffered
from erratic thinking and delusions, which manifested in the
belief hospital staff and the Department-approved visitation
monitor were attempting to harm Shanon. Mother described to
the social worker hearing voices that were not there, experiencing
ghosts touching her body and seeing a rodent that was not in the
room. Mother also explained she had stopped taking her
prescribed psychotropic medication for her hallucinations because
it had made her shaky and worsened her condition. Finally, the
Department described an argument between Chris and Mother
that was mutually physically combative.
Mother testified at the jurisdiction hearing that she had
been diagnosed with delusional thinking and depression in 2009
in connection with the prior dependency case involving her older
son. However, she asserted her symptoms disappeared just
before she became pregnant with Shanon and had not returned.
The court dismissed the domestic violence allegations for
lack of evidence, sustained as amended the remaining allegations
pursuant to section 300, subdivisions (b) and (j), ordered both
3 Chris is not the father of Mother’s older son.
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Mother and Chris to submit to mental health evaluations
pursuant to Evidence Code section 730, and directed the
Department to provide the results of those evaluations prior to
the continued disposition hearing.
At the contested disposition hearing on May 29, 2019 the
Department presented the Evidence Code section 730 evaluation
from clinical psychologist Sara M. Hough, who diagnosed Mother
as suffering from “a psychotic disorder. Her symptoms include a
history of visual/auditory hallucinations, delusions, fixated
thinking and poor judgment. . . . She lacks insight into her
mental health challenges and believes that all the issues are the
fault of the system and that people are trying to keep her away
from her child without justification. . . . Mother does not appear
to comprehend the complexities of raising an infant. Her lack of
understanding is directly related to her mental health
impairment. Mother does acknowledge a history of
hallucinations and delusions, but she minimizes her symptoms
and reports that she is currently asymptomatic. In the current
examination her thinking was tangential, disorganized with
bizarre content. Because of her current impaired mental status
mother is not capable of independently caring for an infant.” The
evaluator recommended that Mother undergo a psychiatric
evaluation for possible medication intervention and participate in
individual counseling and parenting classes.
Following the hearing the court declared Shanon a
dependent child of the court, finding by clear and convincing
evidence no reasonable means existed to protect Shanon other
than removal from her parents’ care and custody. The court
rejected the Department’s request pursuant to section 361.5,
subdivision (b)(10) and (b)(12), to deny Mother family
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reunification services based on the termination of her parental
rights over her older son and exercised its discretion to grant her
family reunification services. As part of the court-ordered case
plan, the court directed Mother to obtain psychiatric counseling
in accordance with the recommendation of the Evidence Code
section 730 evaluator. In addition, the court granted Chris
family reunification services and ordered monitored visitation for
both parents with individual counseling and parenting classes.
3. The Six-month Review Hearing
At the November 27, 2019 six-month review hearing
(§ 366.21, subd. (e)), the Department recommended terminating
family reunification services for both parents. The Department
reported Mother had not acknowledged or addressed her mental
health challenges and there was no basis to conclude she would
ever be compliant with the case plan. Chris had been
participating in parenting classes and counseling, the
Department acknowledged; but there was no evidence he had
benefitted, or was capable of benefitting, from them.
Mother contended she was in full compliance with the case
plan. She had participated in individual counseling, completed
parenting classes and, along with Chris, regularly visited with
Shanon. She did not take psychotropic medication or seek
specific psychiatric services because she did not believe she
continued to have a mental health disorder. As to the diagnoses
that suggested otherwise, Mother stated she was in the process of
obtaining an additional psychiatric opinion and requested that
her family reunification services be continued. Shanon’s counsel
supported both parents’ request for continued family
reunification services.
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The court found both Mother and Chris had substantially
complied with the case plan. The court ordered continued family
reunification services for both of them over the Department’s
objection, explaining, “Father’s issues are developmental in
nature. Mother’s issues are clinical psychiatric issues. And I
think it sets a bad policy and practice to just throw in the towel
when parents like this present these problems. It may—we may
not get to that point given this situation where the parents would
be able to safely take care of a toddler when the child is a toddler,
but we should make the effort.”
4. The 12-month Review Hearing
In its report prepared for the September 22, 2020 12-month
review hearing (§ 366.21, subd. (f)), the Department stated
Mother continued to refuse the Department’s housing assistance
and remained unhoused. As for Mother’s mental health, the
Department stated it had no information on Mother’s progress
because Mother also refused to provide that information. In
addition, Mother told the Department she wanted a DNA test for
Shanon, accusing hospital staff of switching Mother’s baby with
Shanon at birth, and claiming she had given birth to Shanon
“from a tumor on [her] neck.” The Department again
recommended termination of family reunification services for
both parents. This time, Shanon’s counsel supported that
recommendation.
The court terminated family reunification services for both
parents. In making its ruling the court stated it “had spent a
great deal of time searching for some factual legal basis to
continue family reunification services but, also, was unable to do
that. As to the Mother it is apparent that the Mother’s mental
illness symptoms remain unabated.” The court ordered in-person
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monitored visitation for both parents, provided they adhered to
safety protocols required by the Covid-19 pandemic, and set the
selection and implementation hearing (§ 366.26) for February 24,
2021.
5. Mother’s Section 388 Petition and the Section 366.26
Hearing Terminating Parental Rights
On February 24, 2021, the date of the selection and
implementation hearing, Mother filed a section 388 petition
seeking additional family reunification services. Mother stated
she had been attending psychiatric counseling and taking
prescribed antidepressant medication. She alleged it was in
Shanon’s best interests to be returned to her custody so “we can
continue to be a family and develop a strong family bond.”
Mother attached to her petition two letters from her medical
providers: (1) a letter from Dr. Karine Tagmazyan, her primary
care physician, that stated Mother had been under her care since
August 2019, Mother had been taking an antidepressant
prescribed by Dr. Tagmazyan since July 22, 2020, and Mother
had recently reported feeling “much better”; and (2) an
October 26, 2020 letter from Alison Altwer, a licensed family
therapist in Kaiser Permanente’s psychiatry department, that
was addressed to Mother and confirmed Mother’s appointment
for November 16, 2020.
The court summarily denied the section 388 petition,
stating, “The 388 [petition] speaks in conclusionary terms.
There’s no compelling evidence to indicate . . . that it merits a
formal hearing. I can accept the representations made that the
Mother appears to be engaged in therapy with Kaiser
[Permanente Hospital] and is under psychiatric care. But that,
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in itself, does not provide sufficient information to grant a
hearing on this application.”
Proceeding to the selection and implementation hearing,
the court terminated Mother’s and Chris’s parental rights and
transferred the care, custody and control of Shanon to the
Department for adoptive planning and placement.
DISCUSSION
1. Governing Law and Standard of Review
Section 388 provides for the modification of juvenile court
orders when the petitioner presents new evidence or a change of
circumstances and demonstrates modification of the prior order is
in the child’s best interests. (In re Stephanie M. (1994) 7 Cal.4th
295, 317; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re
Samuel A. (2020) 55 Cal.App.5th 1, 6-7.) To obtain a hearing on
a section 388 petition, the parent must make a prima facie
showing as to both elements. (In re Samuel A., at p. 7; see In re
K.L. (2016) 248 Cal.App.4th 52, 61; see Cal. Rules of Court,
rule 5.570(d).)
The petition must be liberally construed in favor of
granting a hearing, but “[t]he prima facie showing is not met
unless the facts alleged, if supported by evidence given credit at
the hearing, would sustain a favorable decision on the petition.”
(In re J.P. (2014) 229 Cal.App.4th 108, 127; accord, In re
Samuel A., supra, 55 Cal.App.5th at p. 7; In re K.L., supra,
248 Cal.App.4th at p. 61.) “The petition may not consist of
‘general, conclusory allegations.’ [Citation.] ‘Successful petitions
have included declarations or other attachments which
demonstrate the showing the petitioner will make at [the]
hearing. . . .’ [Citation.] When determining whether the petition
makes the necessary showing, ‘the court may consider the entire
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factual and procedural history of the case.’” (In re Samuel A., at
p. 7; accord, In re K.L., at p. 62; see In re Jackson W. (2010)
184 Cal.App.4th 247, 258.)
When a section 388 petition is filed after family
reunification services have been terminated, the juvenile court’s
overriding concern is the child’s best interest. (In re
Stephanie M., supra, 7 Cal.4th at p. 317.) The parent’s interests
in the care, custody and companionship of the child are no longer
paramount; and the focus shifts to the needs of the child for
permanency and stability. (Ibid.; In re Vincent M. (2008)
161 Cal.App.4th 943, 955.) Because time is of the essence for
young children when it comes to securing a stable, permanent
home, prolonged uncertainty is not in their best interest. (See
In re Josiah Z. (2005) 36 Cal.4th 664, 674 [“‘[t]here is little that
can be as detrimental to a child’s sound development as
uncertainty over whether he is to remain in his current “home,”
under the care of his parents or foster parents, especially when
such uncertainty is prolonged’”]; In re Kimberly F. (1997)
56 Cal.App.4th 519, 531 [“our Supreme Court made it very clear
in Jasmon O.[, supra, 8 Cal.4th 398] that the disruption of an
existing psychological bond between dependent children and their
caretakers is an extremely important factor bearing on any
section 388 motion”].)
We review the summary denial of a section 388 petition for
abuse of discretion. (In re K.L., supra, 248 Cal.App.4th at p. 61;
In re G.B. (2014) 227 Cal.App.4th 1147, 1158.) We may disturb
the juvenile court’s exercise of discretion only in the rare case
when the court has made an arbitrary, capricious or patently
absurd determination. (In re Stephanie M., supra, 7 Cal.4th at
p. 318.)
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2. The Court Did Not Abuse Its Discretion in Summarily
Denying Mother’s Section 388 Petition
The Department argues Mother presented no new evidence
or change of circumstances in support of her petition for
additional reunification services, thereby failing to satisfy the
first element of a prima facie showing of entitlement to relief.
Evidence Mother was taking an antidepressant prescribed by her
primary care doctor, the Department explains, was included in its
report prepared for the 12-month review hearing. In addition,
evidence that Mother had received some mental health therapy
in the form of individual counseling was also received at that
12-month review hearing. Although the October 26, 2020 letter
from Altwer confirming a November 2020 appointment was new
in the sense it was created after the September 2020 12-month
review hearing, it merely confirmed Mother had made an
appointment. No information as to Mother’s condition or even
whether she had attended any appointments was provided.
The juvenile court did not specifically state whether Mother
had satisfied the first prong of the section 388 inquiry, and we
need not resolve that question. Assuming, as the juvenile court
apparently did, that Mother’s petition established some recent
participation in psychiatric services, which would be new
evidence or a change of circumstances, the court found that
evidence too thin to support a prima facie case that additional
family reunification services would be in Shanon’s best interests.
(See In re J.C. (2014) 226 Cal.App.4th 503, 527 [a parent’s
petition to reopen reunification efforts “must establish how such
a change will advance the child’s need for permanency and
stability”]; see also In re Ernesto R. (2014) 230 Cal.App.4th 219,
225 [“a section 388 order for reunification services at this late
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date would deprive [the child] of a permanent, stable home in
exchange for an uncertain future”]; Cal. Rules of Court,
rule 5.570(d)(1) [juvenile court may summarily deny section 388
petition that fails to show a change of circumstances or new
evidence that demonstrates a modification of a prior order would
promote the best interests of the child].)
“[B]est interests is a complex idea” that requires
consideration of a variety of factors. (In re Kimberly F., supra,
56 Cal.App.4th at p. 530; see In re Jacob P. (2007)
157 Cal.App.4th 819, 832-833.) As discussed, after the
termination of family reunification services, a parent’s interests
are no longer paramount. Rather, the focus shifts to the needs of
the child for permanency and stability, and a rebuttable
presumption arises that reinstating services for a parent and
potentially jeopardizing a permanent plan of adoption is not in
the best interest of the child. (See In re Marilyn H. (1993)
5 Cal.4th 295, 309-310.)
Viewed in the context of all the evidence in the juvenile
court’s record, Mother’s evidence fell far short of making such a
prima facie case. Throughout these (and prior) dependency
proceedings, Mother demonstrated a fundamental lack of insight
into her mental health condition and its effect on caring for her
young child. She had denied suffering from a psychiatric
disorder, despite diagnoses of schizoaffective disorder and
psychotic disorder, and long resisted psychiatric treatment even
when psychiatric intervention was suggested by both her prior
therapist and the Evidence Code section 730 evaluator and
ordered by the court as part of the case plan.
The juvenile court credited all the information Mother
provided with her section 388 petition, but found, even if it were
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proved, it was far too little to rebut the presumption that
permanency and stability, not continued reunification, was in
Shanon’s best interests. The court did not abuse its discretion in
summarily denying Mother’s section 388 petition for failure to
state a prima facie case for modification of the court’s prior order
terminating family reunification services. (See In re Anthony W.
(2001) 87 Cal.App.4th 246, 252 [“children should not be made to
wait indefinitely for mother to become an adequate parent”]; In re
Edward H. (1996) 43 Cal.App.4th 584, 594 [“the prospect of an
additional six months of reunification to see if the mother [could
comply with her case plan objectives] would not have promoted
stability for the children and thus would not have promoted their
best interests”].)4
DISPOSITION
The orders denying Mother’s section 388 petition and
terminating her parental rights are affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J.
4 Mother argues reversal of the order summarily denying her
section 388 petition also requires reversal of the order entered
the same day terminating her parental rights. Because we affirm
the order summarily denying Mother’s section 388 petition,
Mother’s challenge to the order terminating her parental rights
also fails.
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