In re K.G.
Filed 9/10/12 In re K.G. CA6
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opinion has not been certified for publication or ordered published for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
In re K.G., a Person Coming
Under the Juvenile Court Law.
H038143
(Santa Clara
County
Super. Ct.
No. JD18779)
SANTA CLARA COUNTY DEPARTMENT
OF FAMILY AND CHILDREN’S SERVICES,
Plaintiff and
Respondent,
v.
K.G.,
Defendant and
Appellant.
K.G., a 16-year-old minor, appeals
from an order denying her a hearing on her former Welfare and Institutions Code
section 388
title="">[1] petition
for modification. We find no error and
affirm.
I. Procedural and Factual Background
In February 2008, the
County Department of Family and Children’s Services (Department) filed a
petition alleging that the minor, who was then 12 years old, came within the
provisions of section 300, subdivision (b) [failure to protect]. The petition alleged that the minor’s mother
and her boyfriend R.P. physically abused the minor’s older sister Jenny on
three occasions, made the girls sleep in the garage on the floor with only
blankets, and frequently used a belt on the minor which left her with bruises.
feel safe in the home since her sister had been removed, and the mother and
R.P. had become more violent. In March
2008, the juvenile court adjudged the minor a dependent child, returned her to
the care of her mother, and ordered that both the minor and her mother receive
family maintenance services. These
services included individual and family
counseling.
In May 2008, the social worker filed
an interim review report. The mother
stated that the minor was defiant, did not listen to her or R.P., and her
behavior was affecting her younger children.
Neither the mother nor the minor had begun counseling. The minor was referred to Systems of Care
mental health services. The mother
reported that she would obtain a therapist through her own insurance.
The six-month review report in
September 2008 stated that the minor continued to be defiant. The minor had been in weekly mental health therapy
with Eduardo Fonseca since May 2008, and Fonseca had
with both the minor and her mother. The
minor’s school performance was poor and included four F’s. Since the mother had been unable to find a
therapist, the social worker made a referral for her and recommended that she
and R.P. participate in couples therapy.
The juvenile court continued family maintenance services for the minor
and her mother.
In March 2009, the social worker
filed a status review report in which she recommended that the minor’s
dependency be dismissed and that family maintenance services for Jenny be
continued. The family was struggling
financially, and the mother was unable to continue counseling services due to
complications with her health insurance.
The minor received D’s and F’s at school. Though the school was two blocks from her
home, the minor had difficulty getting to school on time. The juvenile court ordered that the minor and
her sister be continued as dependent children with family maintenance services.
In September 2009, the social worker
requested a continuance because the minor went to a party without permission
and became “dangerously intoxicated.”
The social worker also reported that a referral for wraparound services
had been submitted, because the family required a higher level of services.
continuance.
In October 2009, the status review
report was filed. The social worker
recommended that an additional six months of
ordered. The minor had stayed out all
night on several occasions, took risks with her safety, made poor decisions,
and had difficulty with controlling her anger.
There was also ongoing conflict in the home. The facilitators at wraparound services were
now working with the family. The
juvenile court ordered continued family maintenance services for the mother and
both children.
In June 2010, a status review report was filed. The social worker recommended that the minor
continue to receive family maintenance services. The family continued to experience financial
difficulties. Jenny was pregnant, and
there was ongoing conflict between Jenny and the minor. Though the minor had received all D’s and F’s
the previous semester, she was currently receiving three F’s and the “other
grades [were] in the C range.” The minor
continued to work with wraparound services staff, and was making progress on
her treatment goals. The juvenile court
ordered continued family maintenance services, including wraparound services.
In November 2010, a status review report was filed. The social worker recommended that the minor
and her mother receive an additional six months of family maintenance
services. Jenny had moved out of the
house, and the minor had become more aggressive. The minor’s school attendance had improved though
she continued to have difficulty in getting to her first period class. The minor also stayed out late, but was not
returning home under the influence of alcohol.
The Department continued to provide wraparound services, and one family
specialist worked with the minor. Since
the minor refused to participate in therapy, the facilitator at wraparound
services and the social worker were considering monetary incentives for her to
begin therapy. The parents, however,
were opposed to the monetary incentives.
The juvenile court continued family maintenance services, including
wraparound services.
On January 28, 2011, the Department filed an amended
supplemental petition pursuant to section 387.
The petition alleged: the minor
had been placed in protective custody two days earlier; the minor had been
placed in a 29-day respite care at Rebekah’s Children’s Services on December
20, 2011, because she had been running away from home, abusing marijuana, and
missing school; the minor was at significant risk of harm in her mother’s
custody because she had been diagnosed with major depressive disorder and her
mother did not believe that the minor was depressed; and the minor had
“stabilized significantly” but the respite period was near the end and the
minor needed a higher level of care than placement in the home.
On January 31, 2011, the Department filed a memorandum for the
hearing on the section 387 petition. The
social worker stated that the minor had been receiving family maintenance
services for almost three years. The
level of conflict between the minor and her parents had escalated during that
period. The minor left home without
permission and used marijuana as often as four or five times per week. However, she did not use drugs while in
respite care. Though the minor was
diagnosed with major depression and prescribed psychotropic medication, her
mother did not believe that the minor was depressed or that she needed
medication. Both parents now worked and
were unable to ensure that the minor went to school. The minor did not get herself to school
before 11:00 a.m. The parents believed
that “everything was perfect” with the minor no longer in the home. While the minor was in respite care, she did
not display disruptive behaviors and there were conflicts only when her family
visited her. According to the social
worker, the minor was the “scapegoat in this family.”
The mother was not present for the detention hearing and the juvenile
court ordered that the minor be detained.
On February 3, 2011, the juvenile court issued an order granting the
Department’s application for psychotropic medication. The minor had significant depression and was
willing to try medication for depression and insomnia.
On February 22, 2011, a jurisdiction/disposition report was filed. The social worker recommended that the
section 387 petition be found true and the minor removed from her mother’s
custody. The minor had been placed in a
foster home, but continued to “have issues with impulse control and poor
judgment” and to skip classes. The team
from wraparound services continued to work with the minor. The minor indicated that she could not talk
to one therapist and the social worker referred her to another one. The minor was going to begin taking
medication during a school break so that the side effects could be more easily
observed. The juvenile court continued
the minor as a dependent of the court, and ordered family reunification
services, including wraparound services.
In April 2011, an interim review report was filed. The minor was in a foster home, and she
continued to have difficulties. She left
the foster home without permission, shoplifted, and went to her parents’ home
without permission. According to the
minor’s therapist, the minor “has a lot of pain which she acts out in the
recent behaviors.” The parents did not
seem to understand that their need to participate in services was not dependent
on the minor’s behavior. The minor was
receiving wraparound services and counseling.
In August 2011, the Department filed a status review report in which
the social worker recommended that the minor and her mother receive six months
of family reunification services. The
minor had passed all of her classes and was looking forward to taking
occupational classes. The minor was more
stable emotionally, engaged with her therapist, and her relationship with her
court-appointed special advocate (CASA) was positive. The minor was also doing well with her
wraparound services team.
The minor’s child advocate filed a report in which she stated that she
had engaged in a variety of activities with the minor, and she found that the
minor was “delightful.” Though the minor
indicated that she wanted to return home, the child advocate believed that she
should remain in foster care due to the instability of her mother’s home.
The mother was not present at the review hearing in August. The juvenile court found that the mother’s
progress was “minimal,” and continued family reunification services.
On August 23, 2011, the juvenile court issued an order granting another
application for psychotropic
medication. The minor had responded
well to the medication and she agreed to continue taking it. However, the minor told her counsel that she
wanted to speak to her physician about the possibility of tapering off the
medication.
On September 2, 2011, the minor’s placement was changed to the Open
Arms Level 10 group home because the foster home was no longer able to meet her
mental and emotional needs.
On November 7, 2011, an interim review report was filed. The minor was now living in a foster home and
participating in wraparound services.
The minor did not want to continue therapy and she stopped taking her
psychotropic medication. The minor
stated that the medication made her feel dizzy and gain weight. Though the minor had “tried hard to improve
her behavior,” she did not always comply with rules. The minor had transferred to another high
school, and she received F’s in three of her classes. The social worker did not believe the minor
was ready to return home and recommended that family reunification services be
continued for three months. Following a
hearing, the juvenile court ordered that all previous orders were to remain in
effect.
On November 23, 2011, the Department filed an ex parte application for
an order returning the minor to her mother’s home with family maintenance
services. The mother was prepared to
have the minor home under a behavior contract, and the minor wanted to return
home and appeared committed to the contract.
They would receive family maintenance services including mental health
support from Systems of Care and respite care from the child advocate and a
family friend. The juvenile court issued
the order.
On January 30, 2012, a status review report was filed. The social worker recommended that the minor
and her mother receive six months of family maintenance services. The minor did not pass any of her classes
during the last quarter and she dropped her occupational classes. The minor sometimes did not want to get out
of bed and she missed school. The
wraparound services team had discharged the minor on November 7, 2011. According to the social worker, the minor was
not interested in mental health services.
The minor failed to attend an appointment with the therapist at Gardner
Health Center in December 2011, and it was rescheduled for January 3,
2012. The social worker spoke to the
minor at 5:00 p.m. on January 3, 2012, when the minor was still in bed after
sleeping the entire day. The minor did
not want to speak with the therapist and wanted to continue sleeping. Neither the mother nor the social worker was
able to motivate the minor to get out of bed.
However, the minor eventually had an intake appointment for individual
and family counseling. The minor refused
to take psychotropic medication for depression because it “makes her feel bad,
and that she feels happy at home.”
On January 30, 2012, the report by the child advocate was filed. The child advocate and the minor continued to
enjoy many activities together. It was
also noted that the minor had F’s in all her classes at the beginning of
December 2011, and she attended Saturday School and improved her grades in
three classes. The child advocate
believed that the minor was “really happy to be home.”
The juvenile court ordered that the minor be returned to her mother’s
custody with family maintenance services.
Wraparound services were not ordered.
The juvenile court stated that the minor “doesn’t have to feel this
bad. And I hope somebody can kind of break
through to her and talk about the possibility of medication.”
On March 5, 2012, the minor’s counsel filed a request to change the
court order. The minor’s counsel stated
that the minor’s “level of depression and at-risk behaviors have
increased. While she desires to remain
in the home, her school attendance has become nonexistent and family relations
have become strained. [The minor] sees a
therapist weekly but needs intensive in-home services to ensure her emotional
and physical safety.” The minor’s
counsel sought an “order for intensive wraparound services to support [the
minor] in the home of her mother and stepfather.” The minor’s counsel believed this change
would be better for the minor because “[p]rior to [the minor’s] return home, a
TDM concluded that [the minor] and her family would benefit from another wrap
team. [The minor’s] therapist and CASA
agree that [the minor] is severely depressed and requires intensive in-home
support services to help [the minor] with daily functioning and emotional
support. Wraparound services are
necessary to ensure her safety and maintain placement.” The Department, however, disagreed with the
request, stating that the minor “requested Systems of Care which is sufficient,
and [the minor] has refused to participate in the past.”
The juvenile court denied the request without prejudice. The juvenile court found that the request did
“not state new evidence or a change of circumstances,” noting that “[a]t the
last hearing, [the minor] was depressed & not attending school consistently
& had dropped out of CCOC.” The
order also stated: “Please resubmit 388
petition with more information regarding the ‘at-risk’ behaviors that have increased
and additional info regarding [the minor’s] level of depression.” The minor filed a timely appeal.
The minor contends that the juvenile
court erred in denying her a hearing on her former section 388 petition.
Former section 388 authorizes a dependent child of the juvenile court
to petition the court for a hearing to modify or set aside any previous court
order on the grounds of change of circumstance or new evidence. The petition “shall set forth in concise
language any change of circumstance or new evidence that is alleged to require
the change of order . . . .” (Former §
388, subd. (a).) A party “seeking
modification must ‘make a prima facie showing to trigger the right to proceed
by way of a full hearing.
[Citation.]’ [Citations.] There are two parts to the prima facie
showing: The [party] must demonstrate
(1) a genuine change of circumstances or new evidence, and that (2) revoking
the previous order would be in the best interests of the children. [Citation.]
If the liberally construed allegations of the petition do not show
changed circumstances such that the child’s best interests will be promoted by
the proposed change of order, the dependency court need not order a
hearing. [Citation.]” (In re
Anthony W. (2001) 87 Cal.App.4th 246, 250.)
This court reviews the summary denial of a section 388 petition under
the abuse of discretion standard. (
Relying on In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451 (
that the appropriate standard of review is de novo. In Jamika
W. and Jeremy W., the reviewing
courts stated that they were applying the abuse of discretion standard (
state what standard of review that it was applying. The
minor asserts, however, that these courts used a de novo standard of review
because they examined the entire record of these cases before reaching their
holdings.
After carefully reviewing the factual and procedural history of this
case, we conclude that the juvenile court properly denied the minor’s request
for a hearing under either standard of review.
Here, the petition alleged that the minor’s “level of depression and
at-risk behaviors have increased,” “her school attendance has become
nonexistent and family relations have become strained.” These allegations did not state a prima facie
showing of changed circumstances. At the
last status review hearing, which was held 35 days earlier, evidence was
presented to the juvenile court that the minor was sleeping all day, refusing
to get out of bed despite the efforts of the social worker and the mother,
refusing to take medication, having difficulties following rules at home,
failing to listen to the mother, had not passed any of her classes during the
last quarter, and had dropped her occupational courses. At the conclusion of this hearing, the
juvenile court stated that the minor was “still struggling to go to school,”
needed a medication evaluation but she was “pretty unwilling,” and that “all of
us can tell she’s depressed.” The
minor’s counsel agreed with the juvenile court, noting that the minor had “all
the right intentions,” but that “on a day-to-day basis it’s hard for her to get
motivated.” Since the allegations in the
former section 388 were consistent with the evidence before the juvenile court
at the status review hearing in January, the juvenile court properly denied the
petition without a hearing.
III. Disposition
The order is affirmed.
_______________________________
Mihara,
J.
WE CONCUR:
______________________________
Elia, Acting P. J.
______________________________
Bamattre-Manoukian, J.
name="_ftn1" title="">[1] All
further statutory references are to the Welfare and Institutions Code unless
otherwise noted.
name="_ftn2" title="">[2] R.P.
has been the only father figure in the minor’s life since she was approximately
one year old, and thus the minor considered R.P. to be her stepfather. R.P. and the mother married during the course
of the dependency proceedings.
