Filed 6/14/13 In re S.R. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION THREE
In re S.R., a Person Coming Under the
Juvenile Court Law.
LAKE COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Plaintiff and Respondent,
v. A136208
S.S., (Lake County
Defendant and Appellant. Super. Ct. No. JV-320229-B & C)
This is an appeal from the juvenile court‟s denial of a petition by appellant S.S.
(mother) pursuant to Welfare and Institutions Code section 388 to modify a previous
court order terminating reunification services and visitation with her minor children, S.R.
and V.R. III (collectively, children). We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
This is the fifth appeal to arise out of these dependency proceedings involving
mother and her three children, son V.R. (born July 2000), daughter S.R. (born October
2004), and son V.R. III (born March 2008).1 The original petition pursuant to Welfare &
Institutions Code section 300 was filed in June 2009 (section 300 petition). This section
300 petition, which was later amended, was based upon allegations that mother, among
1
Neither V.R. nor the children‟s father is a party to this appeal.
1
other things, abused controlled substances including alcohol, marijuana and
methamphetamines, and failed to maintain safe and clean living conditions for the
children.2 There was also evidence that V.R. and S.R. had been sexually abused or
otherwise physically abused by their father (who also abused mother), and that S.R. and
V.R. III had sustained significant physical injuries that were not or could not be
adequately explained by mother.3
Following contested hearings, the juvenile court sustained the allegations in the
section 300 petition, as amended, declared the children dependants, removed them from
mother‟s custody, and ordered reunification services for mother. Eventually, S.R. was
placed in a group home and V.R. III in a foster home. The department opined that it was
unlikely S.R. would be adopted given her problematic behavior, but likely V.R. III would
be adopted.4
In the meantime, mother successfully completed six months of reunification
services and was permitted six additional months. However, she was thereafter the
subject of a section 342 petition filed by respondent Lake County Department of Social
Services (department) alleging she sexually abused S.R. during an unsupervised visit by
inserting a sharpened pencil into her vagina. After a contested hearing in August 2010,
the juvenile court sustained the allegations in the section 342 petition and terminated
mother‟s visitation on the ground that it was detrimental to the children. Then, following
2
Unless otherwise stated, all statutory citations herein are to the Welfare &
Institutions Code.
3
More detailed versions of the factual and procedural background of this matter
have already been set forth to a large extent in earlier opinions by this court, and thus will
not be repeated here. (In re V.R., A129712, Nov. 29, 2011 (2011 Cal.App.Unpub. LEXIS
9177); In re S.R., A131611, Jan. 4, 2012 (2012 Cal.App.Unpub. LEXIS 34); In re V.R.,
A132565, April 26, 2012 (2012 Cal.App.Unpub. LEXIS 3168); In re V.R., A133847,
June 12, 2012 (2012 Cal.App.Unpub. LEXIS 4388).) Instead, we focus on those facts
relevant for purposes of deciding the present appeal.
4
V.R. III‟s adoptive placement subsequently fell through. However, the department
continued to believe he would eventually be adopted.
2
another contested hearing in September 2010,5 the juvenile court terminated services for
mother after finding them no longer beneficial and set the matter for a section 366.26
permanency planning hearing. These decisions were affirmed by this court on
November 29, 2011. (In re V.R., supra, A129712.)
On January 6, 2011, mother filed separate but identical petitions for modification
pursuant to section 388 seeking reinstatement of reunification services and/or visitation
with all children.6 Mother‟s section 388 petition, among other things, advised the
juvenile court that, since services and visitation were terminated, she had on her own
initiative made substantial efforts in furtherance of reunification. In particular, mother
had, among other things, become gainfully employed, enrolled in parenting courses,
participated in college-level courses in furtherance of a nursing degree, graduated from a
12-step recovery program, and received counseling services. Additionally, mother
claimed the children were bonded to her.
The children‟s counsel and the department opposed mother‟s section 388 petition.
In doing so, the department incorporated by reference a written psychological evaluation
of mother performed by Dr. Jacqueline Singer in April 2010 that, among other things,
diagnosed her with depressive disorder, NOS, and alcohol, marijuana and
methamphetamine abuse in remission (Axis I of the DSM-IV), and Mixed Personality
Disorder, NOS, with Passive, Aggressive and Paranoid features (Axis II of the DSM-IV).
In reaching these diagnoses, Dr. Singer identified the following psychological traits in
mother. Due at least in part to mother‟s long term involvement in an abusive
relationship, she had poor self-esteem and tended to be hyper-vigilant, socially isolated
and passive. At the same time, mother had a tendency to lash out impulsively and
sometimes in a hostile manner toward others. Mother had serious cognitive limitations
which resulted in difficulties managing her feelings, particularly when highly stimulated
5
This was a joint hearing on the disposition with respect to the section 342 petition
and the 12-month status review with respect to the section 300 petition.
6
For purposes of this appeal, we refer to these petitions collectively as the “section
388 petition.”
3
by her own internal experiences. She often used denial or constriction of experience as a
coping mechanism, and her perceptions tended to become distorted by anger or feelings
of being overwhelmed, stressed or out of control. Finally, Dr. Singer found, mother was
likely to use paranoid-type defenses, projecting her feelings of anger or inadequacy onto
others.
On March 7, 2011, the juvenile court summarily denied mother‟s section 388
petition as to V.R. III and S.R. In doing so, the trial court explained that while “[mother
has] addressed some of her issues and was addressing those at the time of the most recent
termination [of] services and the setting of the [366].26 . . . she hasn‟t gone further and
addressed the psychological aspects of the problem that – why she would do any of this
to her kids.”7
On March 28, 2011, mother filed a notice of appeal of the juvenile court‟s
summary denial of her section 388 petition. Thereafter, on May 2, 2011, a permanency
planning hearing was held in conjunction with the aforementioned hearing on mother‟s
section 388 petition as to V.R. At the conclusion of the hearing, the juvenile court
selected adoption as the permanency planning goal for all children, a decision consistent
with the department‟s most recent recommendations. Mother‟s parental rights to V.R. III
were terminated and adoption selected as his permanent plan on November 7, 2011.
Long-term foster care, in turn, was selected as S.R.‟s permanent plan. Mother filed a
timely notice of appeal of these decisions on November 16, 2011.
On January 4, 2012, in one of the aforementioned prior appeals in this matter, we
reversed the juvenile court‟s summary denial of mother‟s section 388 petition, concluding
that mother‟s evidentiary showing that she had enrolled in a parenting class, found a job,
attended college classes, graduated from a substance abuse course, and participated in
counseling was “sufficient to warrant a hearing to establish whether the counseling she
7
The juvenile court ordered a full hearing on mother‟s section 388 petition as to
V.R. after receiving additional information regarding his adoptability, after which the
court denied the petition. We affirmed the juvenile court‟s decision to deny the section
388 petition as to V.R. on May 2, 2011, as well as its selection of adoption as the
permanent plan for all children. (In re V.R., supra, A132565.)
4
received, in conjunction with her other efforts, amounted to changed circumstances
warranting the relief requested (resumption of visitation and a further period of
reunification services).” (In re S.R., supra, A131611 at p. 7.) As such, we remanded the
matter to the juvenile court for a full evidentiary hearing on the section 388 petition.
Before this remand hearing was held, however, on June 12, 2012, we affirmed the
juvenile court‟s termination of mother‟s parental rights to V.R. III pursuant to section
366.26. (In re V.R., supra, A133847 at p. 11.) In doing so, we concluded the record
contained substantial evidence supporting the juvenile court‟s finding by clear and
convincing evidence that V.R. III was likely to be adopted within a reasonable time. (Id.
at pp. 10-11.)
Thereafter, in July 2012, the remand hearing on mother‟s section 388 petition was
held. Mother submitted a supplemental petition indicating she had remained sober,
graduated from the Women‟s Recovery Services program, participated in additional
therapy sessions to address anger management and substance abuse issues, and had
continued to attend college-level classes. In addition, mother testified at the hearing that
she had continued to work on her parenting skills, thereby learning adaptive techniques
for dealing with sexually abused children, gaining understanding of her children‟s
struggles and of the need to maintain appropriate boundaries, becoming more open to
change and less prone to anger, and improving her listening skills.8 However, mother
continued to deny sexually abusing S.R., despite the fact that the allegations of such
abuse in the section 342 petition had been sustained following a full evidentiary hearing.
Mother also denied telling a social worker shortly after the incident that she accidentally
scraped S.R.‟s inner thigh with a sharpened pencil after V.R. III threw the object into the
tub while S.R. was bathing, and then later telling the social worker that S.R. scratched
herself with a pencil that V.R. III had thrown on the floor. In addition, mother denied
8
Consistent with mother‟s testimony, social worker Sherri Delatorre testified that,
since entering Women‟s Recovery Services, mother had been nurturing to and
appropriate with her children.
5
telling a police detective that S.R. was injured while squatting naked to try to pick up a
pencil on the floor (even though the detective stated otherwise).
Following this hearing, the juvenile court again denied mother‟s section 388
petition as to V.R. III and S.R, finding “insufficient evidence of changed circumstances
regarding her psychiatric issues and anger management, her feelings of depression and
anxiety which are in part what led to the current situation.” In making this finding, the
court referenced a recent July 2012 report from mother‟s therapist noting that she was
still experiencing severe feelings of depression and anxiety, although she hoped to learn
certain adaptive parenting skills and personal coping skills. According to the court, this
reflected “hope of change” rather than actual change.
Further, with respect to the children‟s best interests, the juvenile court noted the
lack of current evidence of a strong bond between mother and the children and the
seriousness of the reasons for their removal. Despite this seriousness, mother continued
to be in “complete denial of having done anything,” to show no insight or remorse, and to
give multiple and inconsistent stories relating to the allegations of abuse. On those
grounds, the court denied mother‟s section 388 petition as to both S.R. and V.R. III.
Mother now seeks review of the order denying her section 388 petition as to both
children.
DISCUSSION
Mother challenges on two grounds the juvenile court‟s denial of her section 388
petition to modify the order terminating reunification services and visitation with respect
to S.R. and V.R. III. First, mother contends the juvenile court‟s ruling was an abuse of
discretion because, as a matter of law, she proved her circumstances had changed such
that visitation and further services were in both children‟s best interests. Second, mother
contends the juvenile court‟s ruling violated the law of the case established by this court
in the related appeal of In re S.R., supra, A131611, in that the lower court failed to return
the matter to the procedural posture existing at the time it erred (as this court held) by
summarily denying her section 388 petition. We address each contention in turn.
6
I. Was the denial of mother’s section 388 petition an abuse of discretion?
Before and after reunification services are terminated, a parent has a continuing
right to petition the court pursuant to section 388 for a modification of any order in the
case based on a showing of changed circumstances or new evidence. (§ 388.) In
bringing the petition, the parent has the burden to prove by a preponderance of the
evidence that changed circumstances exist and that the proposed modification would be
in the child‟s best interest. (Nahid H. v. Superior Court (1997) 53 Cal.App.4th 1051,
1068; Cal. Rules of Court, rule 5.570(a)(e).)
A juvenile court‟s decision to grant or deny a section 388 petition will not be
disturbed on appeal absent a clear abuse of discretion. (In re Stephanie M. (1994) 7
Cal.4th 295, 318.) In applying this standard, we keep in mind that “[s]ection 388 plays a
critical role in the dependency scheme. Even after family reunification services are
terminated and the focus has shifted from returning the child to his parent‟s custody,
section 388 serves as an „escape mechanism‟ to ensure that new evidence may be
considered before the actual, final termination of parental rights. (Citation.) It „provides a
means for the court to address a legitimate change of circumstances‟ and affords a parent
her final opportunity to reinstate reunification services before the issue of custody is
finally resolved. (Citation.)” (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1506; see
also In re Marilyn H. (1993) 5 Cal.4th 295, 307 [section 388 is one of the “significant
safeguards” built into the dependency scheme to ensure parents receive due process].)
As set forth above, mother‟s petition for modification under section 388 sought
further reunification services and/or visitation with S.R. and V.R. III. The petition,
among other things, advised the juvenile court that, since services had terminated, mother
had on her own initiative complied with the requirements set forth in the department‟s
case plan by, among other things, finding a job, enrolling in parenting courses, taking
college-level courses in furtherance of a nursing degree, graduating from a 12-step
recovery program (WSR), and receiving counseling services. In addition, mother
testified at the hearing that she had been learning adaptive techniques for dealing with
sexually abused children and other parenting skills, and had gained a greater
7
understanding of her children‟s struggles and of the need to maintain appropriate
boundaries.
In denying mother‟s section 388 petition, the juvenile court acknowledged this
evidence of progress. Nonetheless, the court found mother‟s circumstances were not
sufficiently changed for purposes of section 388, given that she continued to deny having
sexually abused S.R. despite the sustained allegations in the section 342 petition, and had
not yet successfully acknowledged or treated her mental health issues relating to, among
other things, depression, coping with stress and anger management. The juvenile court
also noted the lack of evidence in the record of a “strong bond” between mother and the
children.
As this record demonstrates, the juvenile court appropriately considered a
multitude of relevant factors in denying mother‟s section 388 petition, including the
seriousness of the physical abuse and other problems that led to the children‟s
dependency, the degree to which those problems can or have been ameliorated by
mother, and the strength of the children‟s bond to mother. (Nahid H. v. Superior Court,
supra, 53 Cal.App.4th at p. 1068; Cal. Rules of Court, rule 5.570(a)(e).) And while, as
the juvenile court found, the evidence reflected that mother had in the past few months
taken steps to address her substance abuse problem, employment status and certain
deficiencies in her parenting abilities, it did not prove she had addressed other significant
problems relating to her ongoing depression and capacity for abusing her children. While
mother continues to insist she did not and would never touch her children in an
inappropriate sexual manner, the juvenile court had discretion on this record to find
otherwise, particularly in light of the many inconsistencies in her recollection of what
happened to S.R. during the instance of abuse alleged in the section 342 petition. We
accept the lower court‟s proper exercise of discretion, as is our duty.
Accordingly, given mother‟s demonstrated failure to gain insight into or otherwise
address these serious problems affecting her ability to parent, the juvenile court had
reasonable grounds to find that her evidence of changed circumstances was insufficient
and that her children‟s best interests would not be served by providing additional
8
visitation or reunification services. (See In re Dakota H. (2005) 132 Cal.App.4th 212,
229.) Simply put, additional services or visitation would have added to the time during
which the children have been deprived of a stable and secure home and, in light of
mother‟s ongoing denial of her significant mental health concerns, would not have made
reunification of this family more likely. As such, the juvenile court‟s decision was
appropriate.9 (In re Angel B. (2002) 97 Cal.App.4th 454, 463-464.)
II. Did the juvenile court violate the law of the case doctrine as to minor V.R. III?
Mother‟s final contention is that the juvenile court‟s denial of her section 388
petition must be reversed because it represents a material departure from this court‟s
directions on remand in our earlier decision reversing the summary denial of her petition.
Specifically, mother contends: “Because this court found the juvenile court abused its
discretion and reversed the lower court‟s orders related to the denial of Mother‟s § 388
petition in A131611, all subsequent orders must also be reversed including any order
terminating Mother‟s parental rights [as to V.R. III]. Law of the case mandates that all
subsequent orders for [V.R. III] needed to be reversed and [mother‟s] 388 petition needed
to be considered as to [V.R. III].” (Citing Weisenburg v. Cragholm (1971) 5 Cal.3d 892,
896; Gapusan v. Jay (1998) 66 Cal.App.4th 734, 743.)10
9
Mother makes much of the fact that this court reversed the juvenile court‟s
summary denial of her section 388 petition, pointing out our conclusion that her petition
presented a prima facie showing of changed circumstances. However, mother‟s
argument confuses the appropriate standard. To be entitled to a hearing on a section 388
petition, the parent need only make a prima facie showing of a change of circumstance or
new evidence that might require a change of order. (In re Angel B. (2002) 97
Cal.App.4th 454, 461; see also In re Marilyn H., supra, 5 Cal.4th at p. 310 [“parent need
only make a prima facie showing to trigger the right to proceed by way of a full hearing
[on a section 388 petition]”].) To prevail on such petition, however, the parent must
prove by a preponderance of the evidence that changed circumstances actually exist and
that the proposed modification would be in the children‟s best interest. (Nahid H. v.
Superior Court, supra, 53 Cal.App.4th at p. 1068.) As such, our conclusions in the
earlier opinion do not require a different holding here.
10
Mother also contends “[i]t was error not to hold the 388-petition hearing as to
[V.R. III] based on this court‟s decision and [her] request to reverse all subsequent
orders,” claiming without citation to the record that “there was some debate as to whether
9
We agree that, as a general matter, when an appellate court reverses an order of
the juvenile court, the case should return to the stage in which it was before the wrongful
order was entered. (E.g., In re A.L. (2010) 190 Cal.App.4th 75, 77, 80 [when an order
denying a section 388 petition was reversed on appeal, it “necessarily vacated the
[subsequent] section 366.26 hearing and the orders from the hearing terminating parental
rights”]; In re Alexandria Y. (1996) 45 Cal.App.4th 1483, 1487, fn. 5. [following
appellate court reversal, “[t]he posture of the case was as if none of the subsequent
hearings had been held”].) As set forth above, “[e]ven after family reunification services
are terminated and the focus has shifted from returning the child to his parent‟s custody,
section 388 serves as an „escape mechanism‟ to ensure that new evidence may be
considered before the actual, final termination of parental rights. (Citation.)” (In re
Hunter S., supra, 142 Cal.App.4th at p. 1506 (italics added). As such, mother is correct
to suggest that “a fair hearing on the section 388 petition [is] a procedural predicate to
proceeding to the section 366.26 hearing and disposition.” (In re Jeremy W. (1992) 3
Cal.App.4th 1407, 1416; see also In re Hashem H. (1996) 45 Cal.App.4th 1791, 1801
[“The court must first afford appellant a fair hearing on her alleged change of
circumstances before proceeding to the section 366.26 hearing and disposition”].)
In this case, as mother points out, the juvenile court terminated her parental rights
as to V.R. III on November 7, 2011, after the juvenile court‟s erroneous decision to
summarily deny her section 388 petition but before the remand hearing on her petition.
(See In re S.R., supra, A131611.) Adding to the confusion, after our January 4, 2012
on remand, the juvenile court should consider [mother‟s] petition as to [V.R. III] because
[her] parental rights were terminated as to [him] on November 7, 2011.” However, the
record we have reviewed reflects that, at the start of the July 30, 2012 hearing, mother
herself advised the juvenile court she was requesting “[s]ix months of reunification and
visitations with my kids,” already identified in court as S.R. and V.R. III. Then, at the
conclusion of this hearing, the juvenile court specifically found mother failed to show by
a preponderance of the evidence that “it‟s in the best interest of the children to change the
Court‟s previous order” and, thus, that “the 388 petition as to each of the two minors,
[S.R.] and [V.R. III], is denied.” (Italics added.) Accordingly, we see no support for
mother‟s claim.
10
reversal of the summary denial of mother‟s section 388 petition, we affirmed the
November 7, 2011 order terminating mother‟s parental rights as to V.R. III. (In re V.R.,
supra, A133847.) A month or so later, on July 30, 2012, the remand hearing on the
section 388 petition was held.
As this record reflects, these dependency proceedings have had a long and
convoluted history, with numerous continuances and appeals halting its progression.
Within this record, mother directs us to no place indicating that she alerted the juvenile
court to the need to consider the impact of our January 4, 2012 reversal on the juvenile
court‟s November 11, 2011 order terminating her parental rights as to V.R. III. It is in
this context that we must consider mother‟s new argument that our decision to reverse the
summary denial of her section 388 petition and to remand for further proceedings
required the juvenile court to vacate all subsequent orders as to V.R. III and S.R.,
including the order terminating parental rights as to V.R. III that was ultimately affirmed
by this court on appeal, thereby becoming final. (See In re Kristin B. (1986) 187
Cal.App.3d 596, 603 [termination of parental rights becomes final upon culmination of
the appellate process].)
Even accepting for the sake of discussion mother‟s argument, and disregarding her
failure to raise it below, we conclude under these circumstances any possible error by the
juvenile court in failing to ensure this matter reverted back to its position at the time of
our January 4, 2012 opinion must be deemed harmless.11 Mother was given, and indeed
took advantage of, numerous opportunities to present evidence and argue her case before
her section 388 petition was denied and her parental rights to V.R. III terminated. Mother
has made no claim that the remand hearing on her section 388 petition or the section
366.26 hearing that resulted in termination of her parental rights as to V.R. III was unfair.
Rather, in challenging the order terminating her parental rights as to V.R. III, mother
11
In its responsive brief, the department wholly failed to address this issue.
According to mother, the department thereby conceded the juvenile court‟s error.
However, because we find any error harmless for the reasons stated below, we need not
address the consequence of the department‟s failure.
11
argued only that the evidentiary record could not support a finding that V.R. III was
likely to be adopted. (In re V.R., supra, A133847, at p. 12.) And, as discussed at length
above, in challenging the denial of her section 388 petition, mother now argues the
juvenile court‟s ruling was an abuse of discretion because she proved by a preponderance
of the evidence that she had changed her circumstances. (See pp. 5-9 and fn. 9, ante.)
All the evidence required to consider these claims has been presented to the court. As
such, regardless of the timing in which those orders were rendered, mother received all
the due process to which she was entitled in seeking to protect her parental rights, and no
further purpose would be served by remanding back to the juvenile court for another
rehearing. (See In re Angela C. (2002) 99 Cal.App.4th 389, 395 [although mother‟s due
process rights were violated by lack of notice of the continued section 366.26 hearing
resulting in termination of her parental rights, the error was harmless given that she “had
notice of these dependency proceedings from the outset, as well as the opportunity to be
heard”]; In re Nina P. (1994) 26 Cal.App.4th 615, 622 [although the juvenile court erred
in granting a social worker‟s request to change the permanency plan despite the
department‟s failure to file a section 388 petition, the error was harmless because
“[mother‟s] due process rights were not in any way compromised”], overruled on other
grounds in San Diego County Dept. of Social Services v. Superior Court (1996) 13
Cal.4th 882.12
At the same time, we are quick to note that sending mother‟s section 388 petition
back once again on remand would likely harm the interests of V.R. III, placing him in
“legal limbo” and undermining the stability provided by his permanent plan. (E.g., In re
D.R. (2011) 193 Cal.App.4th 1494, 1513 [“[o]nce a case has advanced to the permanency
planning stage, it is important not only to seek an appropriate permanent solution, but
also to implement that solution promptly to minimize the time the child is in legal limbo
12
As the court in Angela C. explained, “An error in the trial process itself does not
require automatic reversal because a court may quantitatively assess such an error in the
context of other evidence presented in order to determine whether the error was harmless
beyond a reasonable doubt. ([Arizona v. Fulminante (1991) 499 U.S. 279,] 307-308.)”
(In re Angela C., supra, 99 Cal.App.4th at p. 394.)
12
and to allow the child‟s caretakers to make a full emotional commitment to the child”];
In re Jasmon O. (1994) 8 Cal.4th 398, 420 [while “our statutory scheme expresses a
presumption in favor of keeping parents and children together,” it “also recognizes the
child‟s interest in a stable, permanent home (§ 366.25, subd. (a)), and has provided that
the juvenile court should avoid delay and „give substantial weight to a minor‟s need for
prompt resolution of his or her custody status, the need to provide children with stable
environments, and the damage to a minor of prolonged temporary placements.‟ (§ 352,
subd. (a).)”].) As such, we do not fault the juvenile court for striving to give V.R. III a
stable, permanent home as promptly as possible, despite the ongoing litigation at both the
trial and appellate levels, particularly where mother has identified no harm suffered due
to any failure by the juvenile court to return the case to its previous posture once we
reversed the summary denial of her petition. Mother, at all times represented by
competent counsel, received full evidentiary hearings before her section 388 petition was
denied and her parental rights to V.R. III terminated. And, by now, mother has also
received full appellate review of the rulings. It is time to move on.
Accordingly, we conclude mother‟s challenges to the juvenile court‟s order
denying her section 388 petition as to S.R. and V.R. III must fail.
DISPOSITION
The juvenile court‟s order is affirmed.
_________________________
Jenkins, J.
We concur:
_________________________
Pollak, Acting P. J.
_________________________
Siggins, J.
13