In re Timothy H.

Filed 8/29/08 In re Timothy H. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Appellant challenges an order of the juvenile court denying her petition under Welfare and Institutions Code section 388 without holding a hearing. [1] We affirm.

Background

Appellant Thea H. and her husband Brad H. are the parents of Timothy (born 1995), Charles (born 2004) and Pamela (born 2006).[2] According to the social worker, they are "an extremely intelligent couple, who have committed much of their lives and their fortunes to ensuring their children's happy and successful development." Their children's nanny describes Thea and Brad as "loving, energetic, and responsible parents." Nevertheless, the children were taken into protective custody in November 2007 and became the subjects of section 300 petitions in juvenile court. Following an uncontested jurisdiction and disposition hearing on these petitions in December 2007, the juvenile court found the allegations of an amended section 300 petition true, returned the children to Brad, and offered Thea family reunification services. In March 2008, Thea filed a section 388 petition to modify these orders, asking the juvenile court to dismiss the dependency cases. The juvenile court denied this petition without a hearing and Thea challenges that denial in this court.

The jurisdiction/disposition report filed December 19, 2007 outlined the allegations of the section 300 petition and discussed the evidence supporting those allegations. Allegation b-1 stated that on November 11, 2007, Timothy, Charles, and Pamela had been placed in protective custody when a section 5150 hold had been placed on Thea as a danger to herself and that Brad had been arrested for an assault on Thea. Thea had called the sheriff to report that Brad had tried to strangle her a couple of days earlier. When the deputy arrived, Thea was "hysterical, and screaming while throwing papers all over the place." She was uncooperative, emotional, and "did not appear to know what was going on." She told the deputy that she had a bipolar mental health problem and that she was taking her medication. Thea told the deputy that Brad had tried to strangle her as she was climbing into their residence through a window. She "kept changing her story." Thea was transported to the hospital where she had to be restrained and tried to bite the deputy. She was then placed under a psychiatric hold. The deputy found Brad at Thea's father's home and arrested him.

Allegation b-2 of the dependency petition stated that "Thea and Brad H[.] acknowledge that their use of alcohol has contributed to the physical and verbal violence to which [the children] have been exposed." The social worker said that Thea had acknowledged that the couple's alcohol consumption "was largely responsible for the 'two isolated incidents of domestic violence' " which led to the children's placement in protective custody. Brad agreed that "nearly all of the most serious arguments" he had had with Thea were "fueled by their alcohol consumption." Thea told the social worker that "she had been drinking more than she should have been drinking, given the number of psychotropic medications that she was taking for the Bipolar Disorder and her Post Traumatic Stress Disorder." She also explained that she had stopped drinking, that that was not difficult for her to do, and that she had stopped drinking for a two month period at one time. Thea did tell the social worker that she and Brad had begun drinking again because "that was the only way they could have intimacy." At times, Brad would bring alcohol into the home and undermine her attempts to stop drinking. Thea's father said that both Brad and Thea had "problems with alcohol." Timothy told a social worker that his parents drank every night and that Thea was an alcoholic. The family's nanny, Stacy P., said that Timothy's report was exaggerated she but did acknowledge that the parent's drinking had gotten worse and that many people had talked to Thea about this but that she had not stopped drinking.

Allegations b-3 and b-5 stated that there was a reported history of domestic violence between Brad and Thea which included multiple attacks by Thea on Brad as well as the pending charges for his assault on her. It was alleged that on November 9, 2007, "the parents decided to separate as the result of their conflicted relationship" but that they had had another argument on November 11, 2007, after Thea asked Brad to return home to baby-sit. In support of these allegations, the report summarized statements from Brad, Thea, Brad's father, Thea's father, and Timothy describing domestic violence. Three-year-old Charles told the social worker that "screaming and yelling is mean" and that "my mommy was yelling."

Allegation b-4 said that Timothy comforts and distracts Pamela when she becomes frightened and upset at the parent's loud arguing. Timothy told the social worker about waking up in the middle of the night to hear his parents yelling. This would awaken Pamela as well, and he would comfort her. He said that Brad would lock himself in his room to wait for Thea's father to arrive to try to calm her down.

Allegation b-6 stated that Thea had recently been advised by her treating psychiatrist against drinking alcohol when taking her medications. It alleged that Thea "used alcohol" up to the November altercations with Brad. Thea told the social worker that although she had been drinking, she was not "as much under the influence as the paramedics claimed" when they came on November 11, 2007. She said that some of her medications had caused the slurred speech and other symptoms that they had observed. Appellant's treating psychiatrist, Dr. Kenneth Wulff, said that Thea had stopped taking her medications while pregnant with Pamela and, now finished nursing Pamela, was working with the doctor on finding the right "cocktail" of medications to deal with her anger and irritability. He told the social worker that Thea was a woman of great integrity and sound character and that he believed the children should be returned to her care as soon as possible.

Allegation b-7 concerned an incident in January 2006 during which Brad and Thea " 'made Timothy get into a cold swimming pool at midnight' in January as a punishment for getting bad grades." Timothy explained that his parent imposed various consequences when he failed to do his homework or had wrong answers on his homework. These consequences included carrying heavy buckets and holding a push-up position for long periods of time. He said that he had to be in the cold and dirty swimming pool for two minutes for each of six missed spelling words. Thea told the social worker who investigated this report that Timothy was being manipulative and "milking the situation for all it was worth." However, Brad and Thea did acknowledge that they had "probably gone a little too far" and would not put Timothy in the pool as discipline again. The jurisdiction/disposition report discussed other incidents of inappropriate discipline for Timothy.

The social worker reported that she had received many letters of reference attesting to Thea's many positive attributes and dedication to her children, and that at times Thea could be "an extraordinarily witty, engaging, and likeable woman, with a delightfully droll and self-deprecating sense of humor." She said that Brad's character references were "equally strong and positive" as those about Thea.

The social worker submitted several addenda before the jurisdiction/disposition hearing. The social worker said that she had met with Thea and that she now "appeared to own responsibility for her drinking and for the violent episodes which had occurred when she mixed alcohol with her psychotropic medications." Thea told the social worker that the children were having a difficult time in foster care even though they had been placed with close family friends. Thea suggested to the social worker that Brad should live in their home with the children and she should move out of the family home until she stabilized on her medications and learned to deal with her "irritability and impulsive bursts of anger." She would enter a batterer's program and work closely with Dr. Wulff. Thea suggested that Brad might benefit more from a domestic violence victim's group than a perpetrator's group.

Thea also submitted a letter dated December 18, 2007, describing bipolar disorder and stating that in the last six months she had "suffered from a manic low episode" the symptoms of which included "anger or rage  . . . and aggressive behavior." She attributed the "escalation" of her behavior to "a medication regime that was ineffective and a severe allergic reaction to Klonipin." She said that because she was now taking Lithium, she was stable.

Another addendum included a letter from Dr. Wulff detailing Thea's current medication regime and stating, "I can only speculate, but what is typical in my experience is that the emotional upset and irritability that Thea experienced was very likely due to her mood disorder and these symptoms can resolve if we succeed in identifying an effective medication regimen. . . . [] I have confidence based on my past experience with Thea and her recent progress that she will be able to function in her parental role and to cooperate with a reunification plan fully."

On December 19, 2007, Thea and Brad submitted jurisdiction and disposition on the social worker's report and addenda. Each specifically waived the right to present evidence or witnesses. The order of the court stated that the parties were unable to reach an agreement after mediation on December 13, 2007, and that after a settlement conference on December 19, 2007, the parents had agreed to submit the matter. The juvenile court ordered that the children be placed with Brad with family maintenance services and that Thea receive reunification services. The court set the matter for a case plan review on January 28, 2008 and further review June 11, 2008.

On January 10, 2008, a social worker requested a change in the court's order to order a psychological evaluation for Thea "in order to assess her current level of functioning." The petition stated, "The Department has [been] receiving widely discrepant reports from involved professionals and needs a comprehensive objective evaluation from a skilled professional in order to provide an effective treatment plan." On January 17, 2008, the juvenile court set this request for a hearing on January 28, 2008.

In a report filed January 28, 2008, a social worker noted that Thea "appears to be an extremely intelligent and highly engaging person" but that she was "still having a difficult time adhering to the Court Order Case Plan and following through the Department guidelines as far as the specific programs and referrals that are being recommended." He described Thea as "extremely suspicious and argumentative about following the prescribed course of action" and "guarded and mistrustful." The social worker said that Thea wanted to have a psychological evaluation through "a private psychologist of her choice" whom she would pay "out of her own pocket."

The January 28, 2008, interim review report said that Thea was participating in her plan, attending counseling and 12-step meetings, and participating in drug testing. Thea did consider the parenting class instructor unqualified and sought to substitute instead an on-line parenting program that she had completed. Attached to the report was a letter from Dr. Wulff stating that Thea was, as a result of medication, education, and counseling "much more capable of regulating her responses to difficult situations." He said that Thea was "fully capable of functioning as a parent for her children."

The juvenile court granted the Department's request for a psychological examination for Thea and set the matter for March 17, 2008 for receipt of the evaluator's report. In section 388 petitions to change the court order, dated March 5, 2008, and using form JV-180, Thea asked the court to "Dismiss the case." A portion of the request asks the petitioner to state, "What changed after the judge's order that would change the judge's mind? (Give information that the judge did not have when the original decision was made.)" Thea said, "The domestic violence incident reported in the petition was the result of a 'single seizure' according to neurologist Dr. Edwin Simon Tasch; the child, Timothy H[.], does not exhibit signs of abuse; Mother is 'fully capable of functioning as a parent for her children' according to Dr. Kenneth Wulff." The petitions stated "The children are suffering emotional damage by being out of the custody of their mother, Thea H[.]."

Attached to the petitions were a summary of an office visit by Thea on February 7, 2008, with Dr. Tasch, a neurologist. In it, the doctor states that Thea had reported "an isolated episode of loss of consciousness" described to him by Thea based on Brad's account, because Thea did "not remember any of the event." The summary described Thea's current medication regime. Dr. Tasch's diagnosis was, "Single seizure. . . . Her previous Wellbutrin use [and] sleep deprivation are certainly risk factors for seizure, and are likely the proximate cause." He said that because she was no longer taking Wellbutrin and had not had another seizure for six months, "her risk of recurrence at this time is very low." Also attached to the petitions was the same letter from Dr. Wulff that had been included in the January 28 interim review report.

On March 14, 2008, the juvenile court denied the petitions without a hearing. On the portion of the order giving the reasons for the denial, the court checked the boxes "the facts do not support what is requested," "the request does not state new evidence or a change of circumstances," and "the request does not show that it will be in the best interest of the child to change the order." The petitions and the order denying them were filed March 17, 2008.

Discussion

Appellant contends, "The juvenile court committed reversible error when it denied Thea's section 388 petitions without a hearing."

Section 388 authorizes a petition to modify a prior order of the juvenile court "upon grounds of change of circumstance or new evidence." ( 388, subd. (a). ) "If it appears that the best interests of the child may be promoted by the proposed change of order, . . . the court shall order that a hearing be held . . . ." ( 388 , subd. (c).) A hearing must be held if the petition states a prima facie case, which has been analogized to a showing of probable cause. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 432.) A section 388 petition should be "liberally construed in favor of granting a hearing to consider the parent's request." (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) "In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case." (In re Justice P. (2004) 123 Cal.App.4th 181, 189.) If the petition fails to state sufficient change of circumstances or new evidence or facts showing it would be in the best interests of the child to modify the order, the petition may be denied without a hearing. (Cal.Rules of Court, rule 5.570(d); In re Zachary G. (1999) 77 Cal.App.4th 799, 808.)

The parties state that this court reviews the denial of a section 388 without a hearing for abuse of discretion.[3] (In re Angel B. (2002) 97 Cal.App.4th 454, 460; In re Aaron R. (2005) 130 Cal.App.4th 697, 705.) "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319, internal quotation marks omitted.) The appellate court " 'will not disturb [a] decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].' " (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.)

Appellant argues, "A prima facie showing was made that the reasons for taking jurisdiction and for the dispositional order removing the children from Thea's care no longer existed." Appellant argues that this prima facie showing was "that Thea had suffered a single seizure with loss of consciousness, most likely caused by medication regulation issues and sleep deprivation, but was now on a medication regime that was enabling her to adequately control negative effects of her Bipolar Disorder and 'was fully capable of functioning as a parent for her children.' " Appellant argues that "An evidentiary hearing at which Dr. Wulff could expand on his opinion and recommendations would have allowed the doctor to explain exactly what he would recommend and how far his opinion extended."

Thea's petitions and attachments did not reveal a change of circumstance or new evidence which might compel a modification of the existing orders. Dr. Tausch's letter describes "an isolated episode of loss of consciousness" to account for one incident of domestic violence that he was told by Thea had occurred in September 2007. That Dr. Tasch had now diagnosed the cause of, and believed he had initiated the proper treatment for, this single episode in no way shows the ongoing domestic violence that had been reported was no longer an issue. Thea presented herself to Dr. Tausch as having no memory of the September incident, yet this is at odds with her statement to the social worker in the jurisdiction/disposition report about it. There is no indication in Dr. Tausch's report that Thea advised him of the other incidents of domestic violence or the alcohol related problems that she had had.

That Dr. Wulff was of the opinion that Thea could now successfully parent her children was certainly good news. However, given the overall situation leading to the juvenile court's orders, Thea's presentation here serves merely as an indication of changing, rather than changed, circumstances. This is particularly true considering that, by mid-March, Thea had still not yet submitted to the independent evaluation by a court-appointed psychologist, ordered by the court in January. As a parent proceeds with a reunification plan in a dependency case, completing various parenting programs, attending 12-step meetings, producing negative drug tests, and the like, that parent may wish to return to court for a change in the court's orders with each sign of progress, rather than waiting for the scheduled periodic review hearings. Section 388 serves as an "escape mechanism" to provide a hearing when a parent has revealed a change of circumstances that might require a change of the juvenile court's order. (In re Marilyn H. 5 Cal.4th 295, 309) It does not require a hearing when the petition presents information that the parent is making incremental progress toward completing the court-ordered reunification services.

Because Thea's petitions failed to reveal any change of circumstances that might require a change of the juvenile court's existing order, the court did not abuse its discretion in denying the petitions without a hearing. By summarily denying her section 388 petition, the court did not deny Thea due process. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)

Disposition

The order appealed from is affirmed.

_____________________________

ELIA, Acting P. J.

WE CONCUR:

______________________________________

BAMATTRE-MANOUKIAN, J.

______________________________________

DUFFY, J.

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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[2] Thea and Brad were married in 2002 and Brad is Timothy's adoptive father.

[3]In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416 suggested that the abuse of discretion standard does not apply when the issue is "the right to procedural due process to permit a full and fair hearing on the merits." The implication is that review should be de novo. Under either an abuse of discretion or de novo review, our analysis would remain the same. But because the parties argue an abuse of discretion standard, that is the only standard of review we apply.