In re Adrian G.
Filed 4/27/11 In re Adrian G. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
| In re ADRIAN G., a Person Coming Under the Juvenile Court Law. | |
| SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. R.G., Defendant and Appellant. | D058694 (Super. Ct. No. NJ14019D) |
APPEAL from a judgment of the Superior Court of San Diego County, Michael J. Imhoff, Commissioner. Affirmed.
R.G. appeals the summary denial of her Welfare and Institutions Code section 388 (all further statutory references are to this code) petition in the juvenile dependency case of her son, Adrian G. R.G. contends the court abused its discretion by denying the petition, which sought unsupervised visitation. We affirm.
BACKGROUND
In June 2009 the San Diego County Health and Human Services Agency filed a petition for newborn Adrian. The petition alleged his father, Juan G., had sexually abused one of Adrian's three siblings; R.G. and Juan had not progressed in reunification services; and Adrian was at substantial risk of sexual abuse. Adrian was detained in the hospital, then in a foster home. The court ordered supervised visitation. In December the court entered a true finding on Adrian's petition and ordered him placed in foster care.
At the September 2010 six-month review hearing, the court terminated reunification services and set a section 366.26 hearing for January 2011. The court gave the social worker discretion to lift the supervision requirement for R.G.'s visits with the concurrence of Adrian's counsel and input from R.G.'s therapist and community advocate.
On November 30, 2010, R.G. filed her section 388 petition, and the court summarily denied the petition.
DISCUSSION
Section 388 allows the juvenile court to modify an order if a party establishes, by a preponderance of the evidence, that changed circumstances or new evidence exist and the proposed change would promote the child's best interests. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) To obtain a hearing on a section 388 petition, the parent must make a prima facie showing as to both of these elements. (Ibid.; In re Justice P. (2004) 123 Cal.App.4th 181, 188.) The petition should be liberally construed in favor of granting a hearing, but "[t]he prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition." (Zachary G., at p. 806.) "In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case." (Justice P., at p. 189.) We review the summary denial of a section 388 petition for an abuse of discretion. (Zachary G., at p. 808; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413; In re Aljamie D. (2000) 84 Cal.App.4th 424, 431, 433.)
R.G.'s section 388 petition asked the court to vacate the June 2009 order for supervised visits and order unsupervised visits. The petition alleged the following changed circumstances: R.G. had filed for divorce from Juan, had full-time employment, supported her family and leased an apartment; she had progressed in individual therapy, was learning how to be proactive, no longer relied on Juan for emotional support and had increased her understanding of how the molestation affected her children and of her role as a protective parent; and her visits with Adrian were consistent and appropriate, and she was learning how to understand the children's needs and development.
The petition alleged the proposed change was in Adrian's best interests for the following reasons: Adrian was accustomed to being with and trusting R.G., and more time together would deepen his trust; R.G. visited consistently, and the visits benefited Adrian, as would expanded visits in her home; R.G. was ready, willing and able to protect Adrian, as evidenced by her filing for divorce and the insight she had gained in therapy; and the children were R.G.'s priority, as evidenced by the fact she maintained her own household and was financially independent.
Citing the extensive evidence at the September 2010 hearing, the court noted R.G. was visiting consistently, was in therapy and was making progress in some areas and claimed she did not rely on Juan. However, the court believed there were a number of important issues that R.G. had not addressed and concluded there had not been a change of circumstances. The court further found it had not been shown that the proposed relief was in Adrian's best interests. Information from the visitation monitor, the foster parent and the preschool indicated "Adrian does need to be further assisted before unsupervised visits would be in his best interests." The court did not abuse its discretion by finding R.G. had failed to make a prima facie showing that her circumstances had changed and that unsupervised visits were in Adrian's best interests.
At the outset of this case, R.G. exhibited extreme immaturity and dependence on Juan. R.G. refused to believe that Juan had molested Adrian's sibling. One year later, after undergoing individual psychotherapy and group therapy, R.G. minimized the sibling's injury and admitted merely that it was possible that Juan had touched the sibling.
A June 2010 psychological evaluation concluded R.G. was submissive and dependent; her potential for insight was poor; and her cognitive skills were in the borderline range. The evaluator questioned whether R.G. could become independent and protective of her children, even with additional psychotherapy.
Around the time of the psychological evaluation, R.G. moved from the family home into a one-bedroom apartment. If the children were returned to her, she planned to sleep in the living room and have the children sleep in bunk beds in the bedroom. If R.G. obtained a two-bedroom apartment, the children would continue to share one bedroom. R.G. did not view this sleeping arrangement as inappropriate, even though one of her children was a victim of sexual abuse and another child had a history of acting out sexually.
In September 2010 R.G.'s psychotherapist estimated it would take six to eight months of treatment to address protective issues. In November the psychotherapist reported R.G. was "demonstrating . . . an increase in her understanding about her role as protective parent, the effects of sexual molestation on her children and how her depressive and anxiety symptoms interfered with her functioning in the past." This statement, and the other factors set forth above, demonstrate at most changing circumstances in R.G.'s ability to protect her children.
Moreover, although R.G. visited Adrian every week for one hour, he had never lived with her. Adrian remained in the same foster home for virtually his whole life--one and one-half years--and was thriving in that home. When the visitation monitor picked up Adrian to take him to a visit, he clung to his foster parent. When the monitor returned Adrian to his placement, he ran to the door, eager to be with his foster parent. On the days following visits with R.G., Adrian was "extremely needy and clingy" at his preschool. This case was past the reunification phase, and the focus was on Adrian's need for permanency and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
The court did not abuse its discretion by summarily denying R.G.'s section 388 petition.
DISPOSITION
The judgment is affirmed.
McINTYRE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
O'ROURKE, J.
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