In re Roxanne S.
Filed 3/8/13 In re Roxanne S. CA2/4
NOT TO BE PUBLISHED IN THE
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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re ROXANNE S.,
a Person Coming Under the Juvenile Court Law.
B242607
(Los Angeles County
Super. Ct. No. CK76419)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
L.K.,
Defendant and Appellant.
APPEAL
from an order of the Superior Court of
County, Debra L. Losnick, Court Commissioner. Affirmed.
Marissa
Coffey, under appointment by the Court of Appeal, for Defendant and Appellant.
John
F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Sarah
Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
L.K.
(Mother), the mother of a dependent child of the juvenile court, appeals from
an order denying her petition pursuant to Welfare and Institutions Code section
388
to her care or, in the alternative, permit unmonitored visitation. We affirm.
by concluding Mother failed to sufficiently demonstrate that there were changed
circumstances or that the best interests of the child would be served by the
proposed change of order.
factual and procedural
background
I. Initiation of Juvenile Court
Proceedings
Roxanne
S., born in December 2008, came to the attention of the
Family Services (DCFS) when she was two months old.
on February 18, 2009, and when clinic workers
discovered that Roxanne had not gained any weight since birth, they instructed
Mother to immediately take the child to the emergency room. When a clinic worker called mother six days
later and learned that Mother had not taken Roxanne to the hospital, the clinic
worker called the child abuse hotline. A
social worker interviewed Mother on February 24,
2009,
accompanied by deputy sheriffs. Mother
said she did not take the child to the emergency room because she did not have
transportation.
Mother
told the social worker she suffered from
she did not seem to be concerned about Roxanne.
Mother could not tell the social worker how many bottles she fed the
child or how to prepare formula. Mother
had a baby doll she called “man man,†which she kept with her under a
towel. She reported she had been
involuntarily hospitalized as authorized by section 5150 more than four
times. The social worker asked Mother
how she felt about having a baby. Mother
replied that she was tired and that it was “a lot of work on me.â€
The
social worker detained Roxanne and took the child to the hospital. The doctor reported that Roxanne was severely
dehydrated, very thin, had loose skin all over her body, and had an enlarged
abdomen caused by malnourishment.
Mother
was placed on a 72-hour psychiatric hold at Harbor UCLA Medical Center.
The
social worker interviewed the maternal grandmother, Cynthia K., who confirmed
that Mother had a history of schizophrenia and depression and often failed to
take her medication and follow through with obtaining psychiatric care. Cynthia knew Mother was not caring for
Roxanne properly and had tried to teach Mother how to feed the infant. She said she had also notified Mother’s
psychiatric social worker and DCFS.
Mother had been depressed and angry, and had written bizarre, nonsensical
letters. Mother treated her baby doll,
“man man,†like a real baby. Cynthia
requested that Roxanne be placed with her.
DCFS
filed a section 300 petition on February 27, 2009, alleging that Roxanne was
at risk of suffering physical harm and death as a result of Mother’s willful
failure to feed her properly, resulting in the child suffering from
The
juvenile court ordered Roxanne detained on February 27,
2009. The jurisdiction and disposition report,
dated March 26, 2009, indicated Mother refused
to speak to the social worker, said she did not want to participate in any DCFS
services, and refused to sign any paperwork.
Mother was discharged from the psychiatric hospital on March 10, 2009. Her case
manager told the social worker that Mother had refused medication and
services. The hospital obtained a court
order to medicate Mother against her will.
During her hospitalization, Mother never inquired about Roxanne. When staff mentioned her, Mother said she did
not want Roxanne back “right now.â€
Mother did not want a referral to a 28-day inpatient program. The hospital gave Mother medication and
psychiatric referrals when she was discharged.
Mother appeared more defiant than mentally unstable at the time of her
release.
The
social worker interviewed Cynthia in early March 2009. She reported that Mother had suffered from
mental illness for about five years, since she was 18. Mother had been in a near-fatal car accident
when she was under the influence of drugs and alcohol. Mother had had numerous violent outbursts,
and Cynthia had called the police on several occasions for assistance. Mother once jumped out of Cynthia’s car while
it was moving. Mother experienced
blackouts in which she would do things and later have no recollection of having
done them. Cynthia showed the social
worker a calendar in which Mother had documented her baby doll’s developmental
milestones. Cynthia believed that Mother
did not want Roxanne to grow bigger than her baby doll. Mother refused Cynthia’s efforts to assist
her in preparing Roxanne’s bottles.
Cynthia requested that Roxanne be placed with her and spent every night
at the hospital with the baby. Cynthia
had a previous child welfare history, but DCFS later determined that her
history was related to Mother’s problematic behavior when she was a teenager.
At a
hearing on March 26, 2009, the juvenile court ordered
that two mental health professionals on the court’s Evidence Code section 730
panel evaluate Mother and assess her ability to benefit from reunification
services. DCFS recommended that the
court deny Mother reunification services as authorized by section 361.5,
subdivision (b)(2) and (5).
and Disposition, Denial of Reunification Services, and Appointment of a Legal
Guardian
DCFS
informed the court on May 6, 2009, for the adjudication and disposition hearing
that Mother had not been in touch with DCFS since April 14, 2009. Mother had not contacted the Evidence Code
section 730 evaluators. The social
worker provided her with referrals for housing, shelters, mental health
treatment, and drug treatment. Mother
was also given the contact information for the section 730 evaluators and
instructed to contact them as soon as possible.
Mother told the social worker that she was three months pregnant. Mother said she would like Roxanne to be
placed with her mother, Cynthia. The
court concluded that notice had not been given as required for the jurisdiction
and disposition hearing and continued the hearing until May 29, 2009. On that date, the court learned that Mother
was incarcerated and continued the hearing to permit Mother to be present.
The
jurisdiction and disposition hearing was held on June 22, 2009. The Evidence Code section 730 evaluators
reported that Mother had not cooperated with their efforts to assess her. Mother also refused to cooperate with the
social worker who attempted to interview her on June 12, 2009. Mother had been released from custody but did
not appear at the hearing.
The
court sustained the section 300 petition in its entirety, finding that Mother
had failed to properly feed Roxanne and medically neglected her and that
Mother’s mental and emotional problems rendered her incapable of providing the
child with appropriate care and supervision, all of which placed the child at
risk of physical danger and death. The
juvenile court denied mother family reunification services as authorized by
section 361.5, subdivision (b)(1), (2), and (5), based on the Mother’s
whereabouts being unknown, Mother’s mental disability rendering her incapable
of utilizing services, and Roxanne’s having suffered severe physical abuse
while under the age of three years. The
court scheduled a section 366.26 hearing to select a permanent plan for
Roxanne.
DCFS
placed Roxanne with maternal grandmother Cynthia on August 5, 2009, and
identified her as the prospective adoptive parent. In its report for the section 366.26 hearing
scheduled for October 19, 2009, DCFS recommended termination of parental
rights. The court continued the section
366.26 hearing to permit Cynthia to complete her home study and resolve various
issues.
In
December 2009, DCFS reported that Mother’s whereabouts were unknown. She had not contacted DCFS or visited
Roxanne. Roxanne was thriving in
Cynthia’s care. In June 2010, DCFS
reported that Cynthia had been separated from her husband for 20 years but had
never obtained a divorce. She was unable
to resolve the legal issues regarding her marriage, as she needed to do in
order to adopt Roxanne, so DCFS recommended that the court instead grant her
legal guardianship of Roxanne. On June
8, 2010, the juvenile court appointed Cynthia as Roxanne’s legal guardian and
letters of guardianship were filed on July 7, 2010.
III. Gregory’s Birth
Mother
gave birth to Gregory S. in early October 2010.
DCFS filed a section 300 petition regarding Gregory on October 15, 2010,
and an amended section 300 petition on January 26, 2011, alleging Gregory was
at risk because of Mother’s incarceration, her mental illness, and her neglect
of Roxanne.
In
early December 2010, Mother reported to a social worker that she had been
released from custody and was residing at a women’s transitional facility called
“A New Way of Life.†She acknowledged
that she was mentally ill but said she was receiving treatment and believed she
would soon be capable of caring for her children.
On
March 16, 2011, the juvenile court held a jurisdictional and dispositional hearing
regarding Gregory. DCFS reported that
Mother had left her transitional facility in February 2011. The court sustained the section 300 petition
regarding Gregory and denied family reunification services to Mother, although
it ordered reunification services for Gregory’s father.
A
June 7, 2011 status review report stated Roxanne was doing very well in
Cynthia’s care and called her “mommy.â€
Gregory had also been placed with Cynthia. Cynthia wished to adopt both children and was
attempting to legally separate from her estranged husband. Mother had begun calling Cynthia’s home
several times a week to check on Roxanne, and Cynthia brought Roxanne to
Mother’s residence for weekly monitored visits.
The social worker who monitored Mother’s visits with the children in
March and April 2011 said Mother was appropriate with the children. She read, colored, and played with them. Mother was briefly incarcerated in May 2011,
but upon her release that same month she visited with the children for three
hours and the visits went well.
IV. Mother’s First and Second Section 388
Petitions
Mother
filed a section 388 petition on August 25, 2011, requesting that the court
terminate the legal guardianship as to Roxanne and return the child to her
care. She requested, in the alternative,
that she be provided with family reunification services and unmonitored visits
with Roxanne. Mother’s counsel told the
court that Mother was receiving psychiatric
treatment and attending parenting classes.
Counsel asserted that the proposed modification would serve Roxanne’s
best interests because the child had bonded with Mother, as evidenced by the
fact the child became upset when visits ended.
Attached to the section 388 petition were letters from Mother’s case
manager at A New Way of Life, indicating Mother entered the program in late
November 2010 and that Mother had been an “exceptional†client. An August 2011 letter stated that Roxanne
called her “mother†and allowed her to carry and comfort her without
crying. Also attached to the petition
were a certificate of completion for parenting classes and letters from a
psychology intern and a psychiatrist stating they had been treating Mother since
May 19, 2011. The psychiatrist reported
Mother was taking her psychotropic medication.
The
juvenile court granted Mother a hearing on her section 388 petition.
DCFS
filed a report stating Mother said she had been incarcerated between
March 30, 2010, and November 29, 2010, and then began residing at A New
Way of Life. She left the program on
February 28, 2011. When she left, she
took only one bag with her baby doll in it and threw away the rest of her
belongings. She said she was going to
visit her sister, but she did not have a sister. Her case manager was concerned about Cynthia’s
and the children’s safety. Mother was
briefly incarcerated again from April 27, 2011, to May 5, 2011; Mother moved
back into A New Way of Life sometime in May 2011.
The
social worker interviewed Mother in early September 2011 at the program. Mother had difficulty remaining focused,
although she said she was taking her medication. She talked mostly about Gregory, vacillating
between saying she wanted to give him up for adoption and saying she wanted to
have custody. She spoke very little
about Roxanne.
Cynthia
said visits with Mother and the children went well but Mother’s clarity
differed from day to day. She said she
would never leave a child alone with Mother.
Mother had called her a few months before and threatened to put a bullet
in Cynthia’s head, but Mother did not remember doing so the following day. Mother’s case manager stated that Mother was
cooperative, but acknowledged that Mother was not ready to care for young
children. DCFS recommended that the
court not grant Mother’s 388 petition seeking reunification services or
unmonitored visits. On October 24, 2011,
the juvenile court denied the section 388 petition.
DCFS
filed a status review report regarding Roxanne on December 6, 2011. Mother had been calling Cynthia to check on
Roxanne almost daily. Cynthia was taking
Roxanne to visit Mother every Friday up until four or five weeks earlier. At that time, Mother had moved to a new group
home run by A New Way of Life and Cynthia was not comfortable taking the
children to visit there. DCFS arranged
for Mother’s visits to occur at her previous group home.
Mother
filed a second section 388 petition on February 9, 2012. The court summarily denied it without a
hearing.
V. Mother’s Third Section 388 Petition
On
May 2, 2012, Mother filed another section 388 petition requesting that the
court terminate Roxanne’s legal guardianship and return her to Mother’s care
or, in the alternative, grant her unmonitored visitation and provide
reunification services. She said she was
attending weekly therapy sessions and had gained insight into her mental health
issues. Mother asserted she was calm and
patient with the children during visits.
The children had bonded with Mother and cried when visits ended. Mother attached two additional letters
written on April 25, 2012, and February 6, 2012, by her case manager at A New
Way of Life saying Mother participated in parenting classes, individual
counseling, a support group for mothers, and group counseling. The case manager promised to work closely
with Mother to ensure she continued to be responsible and productive. Mother’s psychiatrist reported she had met
with Mother on a monthly basis and prescribed various medications.
The
juvenile court granted Mother a hearing on her section 388 petition, but
limited its consideration to permitting unmonitored visitation.
DCFS
reported in response to the section 388 petition that Cynthia said Mother was
not always compliant with taking her medication. She did not believe Mother was capable of
caring for two young children by herself.
The children were very active and required constant supervision. DCFS recommended that Mother be granted an
additional day of monitored visits but that the court deny her request for
unmonitored visitation.
DCFS
reported that Mother’s visits with the children went well according to Cynthia
and Mother’s case managers. The children
were sad when the visits ended. Mother’s
psychiatrist spoke to a social worker on June 18, 2012, and said she had not
observed anything that made her believe Mother was not consistent in taking her
medication. She felt Mother was capable
of having unmonitored visits with the children.
The
court held a hearing on the section 388 petition on June 29, 2012. On the same date, an 18-month review hearing
regarding Gregory was scheduled.
asking the court to deny the section 388 petition.
The
juvenile court stated that Mother was doing very well and was doing everything
she needed to do to address the issues that led to the children’s
dependency. However, the court viewed
Mother’s circumstances as changing, rather than changed. The court noted that Mother did not have a
track record to indicate how she would do without the support of a
program. The court found that although
visits were going well, it was not in the children’s best interests to grant
unmonitored visitation. Accordingly, the
court denied the section 388 petition.
This
appeal followed.
discussion
Section 388 authorizes a petition to
modify a prior order of the juvenile court “upon grounds of change of
circumstance or new evidence.â€
(§ 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 . . . .â€
(§ 388, subd. (d).)
The
petition must make a prima facie showing as to both elements, change of
circumstance and promotion of the best interests of the child. (In re Zachary G. (1999) 77
Cal.App.4th 799, 806.) 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.) The petition should be liberally
construed. (In re Jeremy W.
(1992) 3 Cal.App.4th 1407, 1414.)
But the prima facie requirement is not met unless the facts alleged, if
supported by evidence credited at the hearing, would sustain a favorable
decision on the petition. (In re
Zachary G., supra,
77 Cal.App.4th at p. 806.) 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. (Rule 5.570(d)(1), Cal. Rules of Court; In
re Zachary G., supra, 77 Cal.App.4th at p. 808.) We review the juvenile court’s ruling denying a section 388
petition for abuse of discretion. (
318.)
Roxanne
was detained from Mother in February 2009 when she was two months old because
she was so malnourished and dehydrated that a medical clinic worker told Mother
the child needed immediate emergency care.
Nonetheless, Mother did not take the child to the hospital. This severe medical neglect came about
because of Mother’s grave mental illness, i.e., schizophrenia and depressive
disorder. Mother has been struggling
with this condition since she was a teenager.
Her mental illness undoubtedly played a direct role in Mother’s abusing
of drugs and alcohol, engaging in serious altercations with her mother, being
in a serious car accident, being incarcerated, being homeless, and taking
better care of a baby doll than of her infant child.
From
the time of Roxanne’s detention in February 2009 until early 2011, Mother was
not involved in the child’s life. At
that time, Mother began calling and visiting.
This coincided with Mother’s participation in a residential program at A
New Way of Life, which she moved into in late November 2010. However, she left the program in late
February 2011, disoriented and unstable, and was incarcerated for a few days in
May 2011. After her release she returned
to the program and resumed visits with the children. Mother’s efforts to become involved in
Roxanne’s life did not begin until June 2011.
In September 2011, a social worker interviewed Mother and noted that she
had great difficulty remaining focused during their conversation despite
Mother’s claim that she was consistently taking her medication. Mother spoke very little about Roxanne,
focusing instead on Gregory. Around that
time, Mother telephoned Cynthia and threatened to shoot her in the head but did
not remember having done so the following day.
Mother’s case manager admitted Mother was not ready to care for young
children. In late October 2011, the
court denied Mother’ first section 388 petition.
Mother
filed the section 388 petition at issue here on May 2, 2012, about six months
later. In the interim, Mother had filed
a second section 388 petition in February 2012, which the court summarily
denied without a hearing. At the time of
the hearing on the most recent section 388 petition, Cynthia said she suspected
Mother was not always compliant with taking her medication and opined that
Mother was not capable of caring for two young and very active children by
herself. Cynthia acknowledged that the
visits with Mother went very well and she obviously supported Mother’s
involvement with the children, as she consistently took the children to
visits. As such, she was perhaps the
best judge of what Mother was capable of managing.
Mother
requested in her petition that the court terminate Roxanne’s legal guardianship
and return her to Mother’s care or grant her unmonitored visitation and provide
reunification services. Given the
magnitude of the mental health issues Mother has faced and the relatively brief
amount of time Mother has demonstrated the ability to remain on her medication
and benefit from therapeutic intervention, the court did not abuse its discretion
in denying Mother’s request to terminate Cynthia’s legal guardianship over
Roxanne. Furthermore, we cannot conclude
that the court abused its discretion under the circumstances present here by
denying Mother’s request for unmonitored visitation. The court acknowledged the great strides
Mother has made, but nonetheless found that the changes in Mother’s behavior
were not of a significant enough duration to trust in her ability to safely
care for Roxanne alone. Her stability
appears to be highly dependent on the support of the program that is assisting
her. In addition, although Roxanne very
much enjoys the visits with Mother and is sad when they end, we find no abuse
of discretion in the court’s conclusion that it is not in Roxanne’s best interests
to grant Mother unmonitored visitation.
The risk to Roxanne, now about four years of age and very active, if
Mother were to experience an unexpected deterioration in her mental health
while taking care of Roxanne, is simply too great. The court properly erred on the side of
caution considering the seriousness of Mother’s mental illness.
disposition
The
order denying Mother’s section 388 petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA,
J.
We concur:
EPSTEIN, P.
J. WILLHITE,
J.
name="_ftn1" title="">[1] All
further statutory references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] We note that Mother’s appeal originally
involved two children. On October 24,
2012, we granted respondent’s motion to dismiss Mother’s appeal as to her son
Gregory based on Mother’s failure to comply with the requirement of Welfare and
Institutions Code section 366.26, subdivision (l), to file a petition for writ of mandate in order to challenge an
order collateral to the scheduling of a section 366.26 hearing.
