In re R.M.
Filed 7/30/12 In re R.M. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re R.M. et al.,
Persons Coming Under the Juvenile Court Law.
SAN
BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
C.R.,
Defendant and Appellant.
E054883
(Super.Ct.Nos. J233189,
J233190 &
J233902)
OPINION
APPEAL
from the Superior Court of
Bernardino County.
Gregory S. Tavill, Judge.
Affirmed.
Matthew
I. Thue, under appointment by the Court of Appeal, for Defendant and
Appellant.
Jean-Rene
Basle, County Counsel,
and Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
Mother argues the court
erred in denying her Welfare and Institutions Code section 388 petition.
2008, and a third boy, I.M., born in July 2010.
R.M., an older half-sister, has the same father as the three boys but
not the same mother. Father and R.M. are
not parties to the appeal.
We affirm the order of the
II
FACTUAL AND PROCEDURAL
BACKGROUND
A. Removal and Detention
The
(CFS) filed an original section 300 dependency petition in June 2010 concerning
the twins. The petition alleges that
mother and father had abused the twins’ sibling, R.M., causing bruises, burns,
a bald patch on her scalp, a swollen lip, lacerations inside the mouth, and a
healing rib fracture.
According
to the detention report, father could
not explain R.M.’s injuries. After R.M.
was medically assessed and her multiple injuries were determined to be
nonaccidental, CFS met with father and mother.
Mother said R.M. was autistic and may have been hurting herself. Based on the medical assessment of R.M., the
twins were removed and detained in the home of the maternal grandmother.
CFS
interviewed mother and father separately.
Father said the children played roughly and he denied noticing any
bruising on R.M. until it was pointed out to him. He claimed R.M. had “old scars,” not
bruises. He could not explain the bald
patch, the broken rib, the burn, or the lacerations in her mouth. Father denied hurting R.M. and said he loved
her. He attributed her underweight to
slow eating.
Mother
also denied seeing any bruises and she claimed R.M. continuously bit her upper
and lower lip and “clap[ped] her hands, hitting the wall.” Mother could not explain the burn or the rib fracture. She said R.M. lacked communication
skills. Her low weight was due to slow
eating.
The
family was living in a quiet, safe, mobile home park. Their home was clean and organized. Father stayed home with the children. Mother was training to be a medical assistant
and working intermittently. They
received public assistance and food stamps.
A
fourth child, I.M., was born on July 10, 2010. On July 14, 2010, the parents were arrested
for the abuse of R.M. and CFS filed another original dependency petition,
seeking removal and detention of the newborn, alleging no provision for support
and abuse of sibling. (§ 300, subds. (g)
and (j).) Mother was released after five
days. Father continued to be
incarcerated in August 2010. I.M. was
placed with a foster mother. Mother
visited I.M. weekly. The twins were also
placed with the foster mother in October 2010 because the maternal grandmother
could not care for them.
B. Jurisdiction and Disposition
On
October 28, 2010, the court conducted a combined jurisdictional and
dispositional hearing. The court
declared the twins and I.M. to be dependents of the court, removed them from
parental custody, and ordered the parents to receive reunification services and
semi-weekly supervised visitation.
C. The April 2011 Section
388 Petition
A new
social worker, Sarah Ramirez, was assigned to this case in December 2010.
On April 15, 2011, mother
filed a JV-180, request to change court order, asking the court to order CFS to
assign a new social worker and asking that the children not be moved from their
foster placement without a hearing.
Mother stated the children were comfortable with the foster mother, who
was willing to consider guardianship or adoption. Mother had a friendly, cooperative
relationship with the foster mother who gave the children loving and excellent
care. Mother had obtained a medical
assistant diploma in January 2011.
Mother felt the social
worker, Sarah Ramirez, was biased against her and had threatened to place the
children for adoption unless mother accepted personal responsibility for
R.M. Mother believed Ramirez had been
disciplined in connection with the present case and she bore mother a
grudge. Mother characterized Ramirez’s
treatment as “aggressive, insulting, and demeaning.” Mother had been requested and denied further
counseling services after November 2010.
Mother was not given notice that her weekly visits could no longer be
supervised by the foster mother instead of CFS.
Ramirez had misrepresented the foster mother as being unwilling to care
for the children. Additionally, the
maternal grandmother was willing to accept a permanent placement of the
children. Mother also proposed a
nonrelated, extended family member for placement.
The foster mother filed a
request for de facto parent status for the three children.
The court scheduled a
hearing for April 2011, concurrent with the six-month review hearing.
CFS filed a status review
report prepared by Ramirez. In November
2010, mother’s counselor had described mother as repeatedly denying having
participated in the abuse and neglect of R.M.
Father also denied any culpability.
Ramirez described a pattern of noncooperation by the parents between
January and April 2011. Both parents
continued to deny any involvement in or knowledge about R.M.’s injuries. They were angry and defensive. Mother and father were not providing CFS with
information about their residence, school, or employment although CFS had information
the parents had moved to Riverside County.
Parents had not reported their participation in a parenting course. They disagreed that they needed to complete
any more services. At one point, mother
told a counselor that she was going to leave father and the abuse of R.M. had
happened while mother was in school. She
then said father had moved out.
On April 16, 2011, the three
children were placed in a concurrent home with Mr. and Mrs. C. because the
previous foster mother seemed disinterested in the twins and overwhelmed by the
demands of her daycare business. More
particularly, the foster mother had changed visitation from McDonald’s to her
home without notice and the foster mother was only offering partial
supervision. The foster mother had also
placed children in weekend respite with ASPIRAnet without notice. The foster mother was seeking financial help
to put the twins in preschool so she could add more children to her daycare
business. The foster mother wanted to
adopt I.M. but not the twins. The
children were healthy and well adjusted in their placement with Mr. and Mrs. C.
At the hearing on April 28,
2011, the court found the children had been properly placed with Mr. and Mrs.
C. and that reunification services and visitation for the parents should
continue. The court ordered the maternal
grandmother to be assessed for placement, contingent upon mother moving
out. The court denied the foster
mother’s request for de facto parent status.
D. The August 2011 Section 388 Petition
On August 26, 2011, mother filed a second JV-180, request to
change order, asking for adequate reunification services, expanded visitation,
and an order for placement with the maternal grandmother. In her declaration, mother said she had
completed two parenting and two anger management classes. She was completing 20 classes of a domestic
violence course. She accused the social
worker of opposing additional visitation.
Mother had moved out of the maternal grandmother’s home but CFS delayed
the assessment before refusing to recommend placement with the maternal
grandmother. Mother complained the
social worker displayed her bias by calling mother by her first name and Mrs.
C., “Mommy.” Mother also expressed
worries that the foster parents were able to provide more for the children and
she was upset they had the twins the week of their birthday.
The maternal grandmother
submitted her supporting declaration, stating she had been ill but was ready to
take care of the children. She had
prepared bedrooms for the boys and she was working two jobs. If necessary, she would quit one job and her
sister would help her with childcare.
On August 31, 2011, the
court summarily denied the petition without a hearing, indicating the request
did not state new evidence or a change of circumstances and that the social
worker had the authority to increase the amount of visitation if
warranted. Mother appealed.
III
DISCUSSION
Mother
argues her petition offered three categories of new evidence: that the maternal grandmother’s home had been
approved but CFS refused to place the children there; that mother had completed
parenting and anger management courses and was progressing in therapy but CFS
still refused to expand visitation; and the relationship with the social worker
had deteriorated even more between April and August 2011. Mother also contends it would serve the best
interests of the children to place them with the maternal grandmother and to
give mother expanded visitation. Mother
asserts she was entitled to a full evidentiary hearing on the August petition. The county, of course, opposes each of these
contentions.
“We
review such a summary denial for abuse of discretion (In re Anthony W. (2001) 87 Cal.App.4th 246, 250) . . . .
“Section 388 provides, in
relevant part, ‘(a) 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 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. The petition shall . . . set forth in concise
language any change of circumstance or new evidence which are alleged to
require the change of order or termination of jurisdiction. [¶] . . .
[¶] (c) If it appears that the
best interests of the child may be
promoted by the proposed change of order, . . . , the court
shall give prior notice, . . .’ (Italics
added.)
“A petition under this
section must be liberally construed in favor of its sufficiency. (Cal. Rules of Court, rule 1432(a).) Thus, if the petition presents
promote the best interests of the child, the court must order the hearing. (In re
Aljamie D. (2000) 84 Cal.App.4th 424, 431-432.) The court may deny the application ex parte
only if the petition fails to state a change of circumstance or new evidence
that even might require a change of
order or termination of jurisdiction.
(Cal. Rules of Court, rule 1432(b); In
re Aljamie D., supra, 84 Cal.App.4th at pp. 431-432.)” (In re
Angel B. (2002) 97 Cal.App.4th 454, 460-461.)
The petitioner has the
burden of showing a change of circumstances and establishing a child’s best
interests. (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) Mother has not succeeded here.
No new evidence was
submitted on the issue of placement with the maternal grandmother. In August 2011, the maternal grandmother had
been assessed and qualified for placement.
Nevertheless, that did not mean CFS was compelled to place the children
with her. The twins had originally been
placed with the maternal grandmother and then removed at her request in October
2010. I.M. was never in her care. During most of the dependency proceedings,
the maternal grandmother had little, if any, contact with the three
children. The maternal grandmother’s
declaration suggested there could be problems with the placement of three small
children because she was working two jobs and relying on her sister to help
with their care. These other factors
fully supported CFS’s ongoing determination that she was not a suitable
placement for the children. For the same
reasons, placement with the maternal grandmother was not in the best interests
of the children. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1033-1036.)
Mother also argues she
demonstrated changed circumstances justifying increased visitation because she
had completed parenting,
anger management, and domestic violence courses, and participated in therapy. But, what the record shows is that, while
mother participated in services, she continued to deny any knowledge about
R.M.’s injuries, except for an isolated concession that father may have hurt
R.M. when mother was at school. In April
2011, mother told the social worker she still did not believe father had hurt
R.M. and that she had separated from him only because she wanted her children
back. In therapy, R.M. had disclosed
that father, mother, and the maternal grandmother had hurt her. R.M displayed the behaviors of an abused
child. In a meeting with the social
worker on August 30, 2011, mother rolled her eyes and did not respond to R.M.’s
disclosure that mother had hurt her.
Mother also said she regretted taking care of R.M. because “she was
nothing to me, and it was not my responsibility.” All of these considerations militate against
expanding and liberalizing mother’s visitation with the other children. Mother could not demonstrate that she was
making progress toward reunification (In
re Hashem H. (1996) 45 Cal.App.4th 1791, 1797-1798) or that CFS was abusing
its authority. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1377.)
Finally, mother’s
reiteration of the difficulties of her relationship with the social worker
simply repeated, with amplification, the same complaints made by mother in her
April petition.
Under these circumstances,
the placement and visitation orders are in the best interests of the
children. (In Chantal S. (1996) 13 Cal.4th 196, 201.)
IV
DISPOSITION
The
juvenile court properly denied mother’s petition. We affirm.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
name="_ftn1" title=""> [1] All
statutory references are to the Welfare and Institutions Code.
name="_ftn2" title=""> [2] We do
not summarize the record after August 31, 2011.
But we take note that the information about mother “rolling her eyes,”
“smirking” about R.M.’s injuries, and saying that she regretted having assumed the
care of R.M. was not part of the record when the court ruled on August 31,
2011.
