In re L.W.
Filed 10/3/13 In re L.W. CA3
NOT
TO BE PUBLISHED
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
THIRD APPELLATE
DISTRICT
(Sacramento)
----
In re L.W. et al., Persons Coming
Under the Juvenile Court Law.
C072974
SACRAMENTO COUNTY
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Plaintiff
and Respondent,
v.
Betty W.,
Defendant
and Appellant.
(Super.
Ct. Nos. JD232207,
JD232208)
appeals from orders of the juvenile court denying her petition for modification
and terminating parental
rights. (Welf.
& Inst. Code, §§ 366.26, 388, 395 [further undesignated statutory
references are to the Welfare and
Institutions Code].) Mother argues the
juvenile court erred in denying her petition for modification without a
hearing. We affirm.
FACTS
In
2006 the minors’ half sibling, Am.W., was removed from mother’s custody after
the then four-year-old child was found wandering on a busy street. She was covered with self-inflicted scars and
was a victim of sexual abuse by relatives.
The juvenile court ordered reunification services for mother that
included parenting
and anger management classes
and, in June 2007, returned the minor to mother under supervision. Within a year, Am.W. was again removed and
mother was offered further parenting and substance abuse services, but services
were soon terminated because mother did not participate in them and was again
neglecting the child’s care. The court
subsequently suspended visitation due to the effect mother’s conduct had on
Am.W. In September 2010 the court
granted mother six more months of
but ultimately terminated services again in March 2011. The child was placed in a group home.
The
minor As.W. was born in January 2009 and mother was afforded informal
supervision services by the Sacramento County Department of Health and Human
Services (Department) that included substance abuse and mental health
treatment. Mother admitted a history of
substance abuse including methamphetamine, alcohol, and marijuana. Mother was compliant with the informal
supervision services and the case was closed in October 2009. L.W. was born in December 2009 and mother
completed a substance abuse treatment program shortly thereafter.
In
February 2012 the Department filed a petition to have the minors As.W., age
three, and L.W., age two, removed from mother’s custody due to neglect and
physical abuse after the minors were found wandering in the rain clad only in
diapers and a physical examination disclosed marks and scars consistent with
physical abuse. Mother blamed the minors’
injuries on rough play and was unwilling to take responsibility for her failure
to provide adequate care and supervision of the minors, showing little insight
into why the minors were removed. In
further interviews, mother declined to discuss the issue of physical abuse with
the social worker.
Department
reports suggested that the minors’ extreme aggressive behavior toward mother
during visits could indicate exposure to violence. When an intensive treatment counselor used a
story to identify the minors’ feelings, both minors commented that the mommy in
the story would “ ‘beat their asses’ †if they did not stop jumping on the bed.
The
minors’ behaviors were initially very challenging, but after a placement
change, therapy, and several months in a new foster home, the minors were
reportedly making “ ‘great progress’ †in foster care, their aggressive
behaviors were decreasing, and they were learning to use their words and table
manners. Visits continued to be marked
by the minors’ aggressive behavior toward mother and other adults. Over time, their aggression decreased but
mother needed coaching to redirect the minors.
L.W. continued to be more aggressive than As.W. and tantrums occurred
when the minors were stressed, but there were visits that went well for both
minors. When visitation was increased,
the minors’ behaviors regressed both at visits and at the foster home.
Mother
participated in some services, including parenting education, prior to the
disposition hearing. The court sustained
the petition and bypassed services based on evidence of infliction of severe
physical abuse on the minors while in mother’s care (§
termination of services as to Am.W. with no reasonable efforts to treat the
problems that led to Am.W.’s removal (§ 361.5,
subd. (b)(6)). The court set a s
plan for the minors.
The
November 2012 report for the section
366.26 hearing stated that when the case was transferred to the adoptions unit,
visits were decreased from twice a week for two hours to once a month for one
hour. The minors had behavioral issues
before and after visits but looked forward to seeing mother. Visits continued to be marred by the minors’
challenging behaviors and intervention by the visit supervisor when mother did
not respond appropriately. The minors
were moved to an adoptive placement in October 2012. During the November 2012 visit following the
move, L.W. began acting out halfway through the visit and mother was unable to
redirect his behavior. Both minors were
removed from the room at the end of the visit and the foster father worked to
calm L.W. The social worker believed
that L.W. showed age-appropriate behavior, pushing boundaries but respecting
authority. The current caretakers were
successful in redirecting his behavior and in handling his fears, which they
thought might be due to past trauma.
As.W. would benefit from a stable and supportive environment and also
presented as age-appropriate. Her
tattling and lying behaviors decreased over time in placement. Both minors’ negative behaviors had moderated
with ongoing therapy and reduced visitation, but both needed routine and could
react poorly to transitions. The report
recommended termination of parental rights with adoption by the current
caretakers as the permanent plan because the minors needed a stable permanent
home.
In
January 2013 mother filed a petition for modification seeking an order vacating
the section 366.26 hearing and granting
her services. Mother alleged that since
the disposition hearing she had continued in services, completing counseling
and addressing anger
management issues
and appropriate discipline. She also
completed substance abuse treatment and had tested alcohol free. Mother further alleged she had maintained
stable housing, and enrolled in and completed classes on anger management and
parenting separate from her counseling sessions. Various summaries, letters, and certificates
attached to the petition supported the allegations that she had completed some
services. Mother alleged the proposed
change was in the minors’ best interests because she was committed to them and
they were attached to her. She believed
the minors’ increased behavioral issues were due to their desire to spend more
time with her.
The
court issued a written ruling denying the petition for modification, finding
that the petition showed neither changed circumstances nor that the proposed
order was in the minors’ best interests.
In explaining the ruling, the court noted that a counseling summary
attached to the petition stated that mother felt what the group had taught her
was that she was “normal and not what CPS portrayed her to be.†The court observed that physically abusing
her children was not “normal†and that mother was in general counseling with no
indication that she addressed the question of physical abuse of the
minors. Further, even assuming mother’s
services addressed past issues that recurred in this case, the evidence showed
her circumstances were changing, not changed.
Finally, the petition did not show how the best interests of the minors
in permanence and stability would be served by the provision of services. Despite the services mother had completed,
she still required supervised visitation and was unable to manage the minors’
behaviors without assistance. There was
no indication that mother would be better able to apply what she had learned if
she had more services. The court
concluded that delaying permanency for services which over the years had not
produced adequate parenting by mother was not in the minors’ best interests.
At
the section 366.26 hearing on
January 15, 2013, the juvenile court terminated parental rights and
selected adoption as the permanent plan for the minors. Mother filed a notice of appeal
January 22, 2013, and an application for rehearing January 25,
2013. The order denying rehearing of the
denial of the petition for modification and the order terminating parental
rights was filed March 7, 2013.
DISCUSSION
I
Mother
requests that this court construe her notice of appeal to include the order on
rehearing.
When
the juvenile case is heard by a referee, the time in which to appeal the
referee’s order is measured from the date the order is final, which is either
“10 calendar days after service of a copy of the order†or, if an application
for rehearing has been made, the date of service of the denial or entry of the
denial order, whichever is later. (C
8.406(a).) The time for filing the
notice of appeal is either 60 or 30 days, depending upon the conditions of
finality. (C
rule 8.406(a)(3).) The notice of
appeal was filed well before the application for rehearing was denied and the
referee’s order was final. (
L.J. (2013) 216 Cal.App.4th 1125, 1139, fn. 12.) We may, and we do, construe the notice of
appeal as timely. (Ibid.) However, because appellant raises no issues
regarding review of the process of rehearing, we treat the appeal as from the
referee’s order only. (
996, 1001, fn. 3; I
577.)
II
Mother
argues the court erred in failing to order a hearing on her petition for
modification, asserting that she established a prima facie showing of changed
circumstances and best interests of the minors.
We disagree.
A
parent may bring a petition for modification of any order of the juvenile court
pursuant to section 388 based on new evidence
or a showing of changed circumstances.
has the burden of establishing that the change is justified.†(In
re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) The best interests of the child are of
paramount consideration when the petition is brought after termination of
reunification services. (I
295, 317.) In assessing the best
interests of the child, the juvenile court looks not to the parent’s interests
in reunification but to the needs of the child for permanence and
stability. (I
re Marilyn H. (1993) 5 Cal.4th 295, 309.)
To
establish the right to an evidentiary
hearing,
the petition must include facts which make a prima facie showing that there is
a change in circumstances and “the best interests of the child may be promoted
by the proposed change of order.†(I
83 Cal.App.4th 666, 672-673 (Daijah
T.); see In re Zachary G.
(1999) 77 Cal.App.4th 799, 806 (Zachary
G.); In re Jeremy W. (1992)
3 Cal.App.4th 1407, 1414; Cal. Rules
of Court, rule 5.570(e)(1).) More than
general conclusory allegations are required to make this showing even when the
petition is liberally construed. (I
584, 593.) “The prima facie requirement
is not met unless the facts alleged, if supported by evidence . . .
would sustain a favorable decision on the petition.†(Zachary G., supra,
77 Cal.App.4th 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.†(I
184 Cal.App.4th 247, 258.)
Mother
insists she made a prima facie showing of changed circumstances because she
continued to engage in services and completed various programs. Evidence that a mother is simply continuing
to participate in services with no change in behavior, attitude, ability to
parent, or acceptance of responsibility for past actions that injured or created
risk of injury to the minors cannot constitute a prima facie showing of changed
circumstances. Her reported open, honest
presentation in groups and classes has not translated into application of the
principles learned. She has made no
progress in dealing with the minors’ behaviors during visits and continues to
insist that their behaviors are not stress and trauma related but are due to a
desire to spend more time with her. If
her view were correct, the increase in visitation would have produced a positive
effect on the minor’s behaviors during visits.
It did not. Moreover, while
mother was unable to deal with the minors’ behaviors, others, including visit
supervisors and the various foster parents, were. The evidence of progress in substance abuse
treatment and housing was evidence only that circumstances may be changing, not
that they had changed.
Even
assuming mother has adequately shown a change in circumstances, she has not
shown that the proposed order was in the minors’ best interests. The minors were subjected to serious physical
abuse and neglect in mother’s care.
Their exposure to indifferent parenting and violence had a negative
effect on their behavior and perceptions.
Mother’s alleged commitment to them had not averted either the neglect
of care or abuse they suffered despite years of services to reunify with the
half sibling and similar informal services prior to their removal. The minors needed structure, consistency, and
safety. Mother’s pattern of succeeding
in services and failing to apply what she had learned led to years of upheaval
and eventual group home placement for the minors’ half sibling. We see no reason to subject these already
troubled children who are beginning to stabilize and improve to a similar
fate. Mother did not plead facts showing
the proposed change was in the minors’ best interests, and the court could
properly deny the petition for modification on that ground without holding a
hearing. (Daijah T., supra,
83 Cal.App.4th at pp. 672-673; Zachary
G., supra, 77 Cal.App.4th at
p. 806.)
DISPOSITION
The
orders of the juvenile court are affirmed.
RAYE , P. J.
We concur:
ROBIE , J.
MURRAY , J.
name="_ftn1" title="">[1] Section
388 provides, in part: “Any parent
. . . may, upon grounds of change of circumstance or new evidence,
petition the court in the same action in which the child was found to be a
dependent child of the juvenile court . . . for a hearing to change,
modify, or set aside any order of court previously made or to terminate the
jurisdiction of the court.†(§
that the best interests of the child . . . may be promoted by the
proposed change of order . . . .†(§ 388,
subd. (d).)
