IN RE: ANTHONY C. et al.

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Court of Appeal, Fifth District, California.

IN RE: ANTHONY C. et al., Persons Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. ANTHONY C. et al., Defendants and Appellants.

F062453, F062454

Decided: October 27, 2011

Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant Anthony C. Marsha F. Levine, under appointment by the Court of Appeal,C. for Defendant and Appellant D. Theresa A. Goldner, County Counsel, and Judith M. Denny, Deputy County Counsel, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

O P I N I O N

Parents Anthony C. (father) and D.C. (mother) appeal from juvenile court orders denying a modification petition (Welf. & Inst.Code, § 388) brought by mother and terminating parental rights (Welf. & Inst.Code, § 366.26) to their children, eight-year-old Anthony, five-year-old Marie and three-year-old Christopher.1  Mother had requested that the court either grant her custody of the children and terminate dependency jurisdiction or return the children to her custody subject to family maintenance services.   Parents contend the juvenile court abused its discretion by denying mother's modification petition.   On review, we disagree and affirm.

PROCEDURAL AND FACTUAL HISTORY

Proceedings on Original Petition

In November 2009, the juvenile court exercised its dependency jurisdiction (§ 300, subd. (b)) over the children and adjudged them juvenile dependents.   The family home posed a severe health and safety risk to the children.   The children were also at risk of suffering serious physical harm due to father's conduct and mother's failure to protect the children from that conduct.   Earlier in 2009, father pushed mother to the ground and repeatedly hit her in the head with his closed fist.   In addition, the eldest child, Anthony, witnessed the domestic violence.

The juvenile court did not remove the children from parental custody in November 2009.   Instead, it placed the children with the parents subject to an array of family maintenance services to address parenting, child neglect, failure to protect and domestic violence.

Proceedings on Subsequent and Supplemental Petitions

Approximately five months later, respondent Kern County Department of Human Services (department) detained the children and filed subsequent and supplemental petitions (§§ 342 & 387) based on the following new information.   Since the November 2009 dispositional hearing, law enforcement found father in possession of drug paraphernalia, and father revealed he was addicted to methamphetamine.   He also repeatedly assaulted a teenager who lived off and on with the family.   The eldest child was once again a witness to father's violence.   Although father was arrested for willful cruelty to a child, mother allowed father to return to the family's home, upon his release from jail.   Consequently, the children were at substantial risk of serious physical harm either inflicted non-accidentally by father (§ 300, subd. (a)) or as a result of mother's willful or negligent failure to protect the children, and due to father's inability to provide regular care on account of his substance abuse (§ 300, subd. (b)).  In addition, the court's previous disposition of leaving the children in the family home had not been effective in protecting them (§ 387).

In June 2010, the juvenile court found the allegations contained in the subsequent and supplemental petitions true.   Father admitted, by that time, to having a very serious intravenous drug addiction and earning his income selling illegal drugs.   In addition, mother had no income and reasonably should have known father was involved with illegal drugs.   Yet, she knowingly exposed the children to these dangerous circumstances.   The parents also claimed they would separate and have father move out so the children could live with mother, but there was no evidence the parents could or would live apart.   For example, although father stated he would enter a sober living facility, he missed his intake appointment.   Overall, the parents were good at making promises, but not at following through with the things they were required to do.

In turn, the juvenile court found the parents had made minimal or no progress toward alleviating the causes for the children's out-of-home placement and formally removed the children from parental custody.   It also ordered reunification services for both parents, as well as a progress hearing in August 2010.

August 2010 Progress Hearing

As of August 2010, father was not participating in any court-ordered services.   He reportedly had been diagnosed with throat cancer and was not feeling well.   Meanwhile, mother at least attempted to begin her court-ordered services.   She attended 6 out of 25 classes related to domestic violence and was scheduled to begin parenting and neglect classes in August.

The parents continued to live together until mid-August.   After that, the parents appeared to be living separately, but they continued to be a couple.

At the August 2010 hearing, mother's counsel pleaded with the court to return the children to mother's care due to father's cancer and claimed he did not pose a significant threat to the children.   Stating “[e]mpathy is out weighing my better judgment,” the court granted mother an extended visit with the children for six weeks.   The court conditioned the extended visit on father not having any contact with the children, except at visits supervised by the department.   The court also set another review hearing in six weeks' time.

Parents' Non-compliance with Reunification Plan and Extended Visit Order

Almost immediately after the court granted the extended visit, father came to the family home and refused to leave.   He claimed he was feeling sick and wanted to be close to mother and the children.   He promised not to do it again.   Within a week, he was at the family home again before a social worker arrived to supervise a visit.

The family home was also described as “a mess.”   In addition, father still had not enrolled in substance abuse counseling and was not drug testing.   Both parents finally started a parenting class in September.   However, later in the month mother was dropped from her failure-to-protect course for nonattendance.

Meanwhile, father reported being so ill that he was in danger of dying.   Yet, he was well enough to go job hunting.   There was also no evidence that he was following through with any medical treatment.

In the latter half of September 2010, a court-appointed special advocate (CASA) visited the family home twice on an unannounced basis.   According to the CASA, mother stated she planned to reconcile with father as soon as the social worker indicated it was appropriate to do so.   Mother did not believe father represented any risk to the family.   CASA also reported that the eldest child, Anthony, wanted the court to know he wished to live with mother so he could see his friends who lived nearby.

Termination of Extended Visit

At an October 2010 hearing, the court stopped the extended visit and limited the parents' visitation to weekly, two-hour supervised visits.   The court expressed its disappointment in the parents' conduct.

“We gave them that opportunity, given the health condition of dad and everything.   But they don't seem to want to take advantage of it.”

Decision to Terminate Reunification Services

The juvenile court conducted its next review of the children's dependency in January 2011.   By this point, mother completed court-ordered parenting and domestic-violence-as-a-victim counseling.   Mother also reenrolled in the failure-to-protect course, but was upset because it was a 26–week class.   She also argued it was not fair that she had to take the class and questioned whether she had to attend because, according to her, criminal charges had been dropped against father.   She had to be reminded that the court had ordered her to attend the failure-to-protect counseling.   As of mid-December, she had attended 8 of 11 sessions and was required to complete 25 group sessions.   This was mother's third try at the failure-to-protect program.

In addition, mother and father “were back together” within a week of the October hearing and mother intended to remain in a relationship with him.   She again told the CASA that father was no danger to the children.   Mother later reported she did not know where father was living and she was prepared to divorce him.   Yet, she appeared with father to visit the children on Christmas day.   In early January she again stated she did not know where father was staying.   He purportedly told her he wanted a divorce.

Meanwhile, father refused to comply with his case plan.   At most, he completed the parenting course, apparently with mother.

Accordingly, the department recommended the juvenile court continue the children's out-of-home placement, terminate reunification services for both parents and set a section 366.26 hearing to select and implement a permanent plan for the children.

At the January 2011 review hearing, mother's attorney argued that mother was in the process of obtaining a divorce from father and a restraining order to keep him away from the home.   However, counsel offered no evidence to support his claim.

On submission, the court remarked that it had issues with mother's credibility.   Having found both parents made minimal progress toward mitigating the causes for the children's out-of-home placement and there was no substantial probability the children would be returned within another six months, the court terminated reunification services and set a section 366.26 hearing for a May 2011 date.

Permanency Planning

An adoptions social worker for the department subsequently reported that the children were likely to be adopted and their current foster parents were committed to adopting them.   As the likelihood of the children's adoption is undisputed on appeal, we do not summarize the department's evidence in this respect.   The department recommended that the juvenile court find the children adoptable and terminate parental rights.

Section 388 Petition

On the figurative eve of the section 366.26 hearing, mother's attorney petitioned the juvenile court to set aside its previous order, return the children to mother's care and either terminate its dependency jurisdiction or condition the children's return on family maintenance services.   The attorney alleged circumstances had changed since the court terminated services in that:  father was dying and no longer a threat;  mother was not living with him;  and she significantly satisfied the court's reunification plan.   The attorney also alleged an order returning custody would be best for the children because they loved and missed mother;  and their return would bring the family together as they faced father's alleged impending death.   The petition did not include supporting evidence for any of counsel's claims.   Nevertheless, the court granted mother a hearing on the petition to coincide with the section 366.26 hearing.

In response to mother's section 388 petition, a department social worker prepared a supplemental report recommending the juvenile court deny the petition.   According to the supplemental report, mother was scheduled to complete her failure-to-protect program in early May 2011.   Yet, she had not demonstrated she had the ability to provide a safe home environment for the children.   There was also evidence that mother was still living with father, although she continued to deny it.

In addition, the department had not received any confirmation that father's condition was terminal.   The department likewise found no documentation that mother was in the process of dissolving her marriage to father or had obtained a restraining order against him.   Furthermore, it was only mother's opinion that father did not pose a danger to the children.   However, he neither completed court-ordered services nor showed any progress in addressing his drug abuse or propensity for violence.

Section 388 / Permanency Planning Hearing

At the combined hearing, the court received the department's reports into evidence as well as what the court described as medical reports for father.   Two of the reports disclosed father was diagnosed in February 2011 with a laryngeal mass, also described as stage IIA vocal cord cancer.   He in turn underwent surgery to remove the mass and insert PEG and tracheostomy tubes.   The third and last “report” was a late February 2011 letter of disability for social security purposes.   Authored by a medical doctor, the letter read:

“To Whom It May Concern:  [¶] The patient has been diagnosed with invasive squamous cell carcinoma of the neck on 02/18/2011.   His condition is expected to be permanent with permanent disability extending above one year.   Currently the patient has a tracheostomy tube in place for airway protection as well as PEG tube placement for feeding.   Prior to current disability, the patient was able to perform all daily activities.   Currently, the patient is dependent on receiving breathing treatments and PEG tube feedings to help supplement his oral feedings and will require extensive surgery and further workup for his condition.   His condition is expected to be grave with disability extending beyond one year.”

The juvenile court also heard testimony from father and mother.

Father testified he was receiving daily radiation and weekly chemotherapy treatments due to his cancer diagnosis.   He was living in a Bakersfield motel, so as to be close to public transportation and where he received treatment.   He had been living in the motel for two or three months, and his relatives were financing his stay.   Mother visited him at the motel when he was distressed.   She also helped take care of him.   She stayed overnight with him once or twice.

Asked his prognosis, father testified, “I'm going to die.”   On the other hand, he claimed he was not told his life expectancy.

Mother testified she would attend her final failure-to-protect class within the week.   She was also visiting the children on a weekly basis.   The children appeared to enjoy their visits with her.

Mother was living in the family home where she resided when these proceedings were initiated.   She checked on father numerous times at the motel where he was staying to make sure he was okay.   She would also respond if he called her to help him with something.

Father was so weak, according to mother, that she did not feel he was currently in any condition to engage in any kind of domestic violence.   She also had no reason to believe he was using drugs that were not prescribed by his physician.   To her knowledge, father had another three weeks of radiation and chemotherapy treatments.   She denied that father would return to the family home once his radiation and chemotherapy treatments were finished.

Asked about father's life expectancy, mother claimed a medical report said “about a year.”   She later clarified she relied on the letter regarding father's social security disability when she testified father had “about a year.”   She admitted she did not know father's prognosis.

Mother further testified she had learned so much, apparently in the failure-to-protect course, that would allow her to protect the children.   She did not describe what she had learned, except that she previously “kind of covered up for [father].”   She also mentioned there was a support group she could join, but she did not testify that she had joined it or would do so.

Finally, mother testified she had not “gone through” with filing for divorce.   She acknowledged she should follow through, but she had not done so.

In closing argument, father supported mother's section 388 petition.

In denying the petition, the juvenile court explained:

“A couple of things keep playing in my mind.   I did something which I probably shouldn't have done and allowed these children to go home in [August].   I did that because of my empathy for the family, the medical condition of the dad.   Now, you're asking me to do the same thing again.   There's a time when what we all have to do is move on.   This family has been involved with us for over a year and a half.   The truthfulness of the mother is seriously questioned by this Court.   I find that it is not in the best interest of these minors that the modification be granted.   And the Court will make the following orders․”

The juvenile court then proceeded with permanency planning.   Having found clear and convincing evidence that the children were likely to be adopted, the court terminated parental rights.

DISCUSSION

The parents argue that the juvenile court abused its discretion by denying mother's section 388 petition to regain custody.   A parent may petition the court for such a modification on grounds of change of circumstance or new evidence. (§ 388, subd. (a).)  The parent must also show that the proposed change would promote the best interests of the child. (§ 388, subd. (b);  Cal. Rules of Court, rule 5.570.)   Whether the juvenile court should modify a previously made order rests within its discretion and its determination may not be disturbed unless there has been a clear abuse of discretion.  (In re Stephanie M. (1994) 7 Cal.4th 295, 318 (Stephanie M.).)   To conclude there was an abuse of discretion, the proof offered must be uncontradicted and unimpeached so that discretion could be exercised only in one way, compelling a finding in favor of the appellant as a matter of law.  (Roesch v. De Mota (1944) 24 Cal.2d 563, 570–571.)

The parents assume that mother showed changed circumstances and focus instead on arguing that the relief mother requested was in the children's best interest.   According to father, mother's section 388 petition established changed circumstances.   Mother argues the court failed to consider “father's imminent deaththe very essence of [her] petition.”   She also contends her circumstance had dramatically changed because she completed the programs that the court previously ordered her to complete and learned that covering up father's actions was not in the children's best interest.   In her view, she made a genuine about-face.   Father joins in this argument as well.

We will assume for the sake of argument that father has standing to challenge the juvenile court's order denying mother's section 388 petition.   Nonetheless, we conclude the juvenile court did not abuse its discretion.   Mother did not establish changed circumstances, let alone that the relief she sought served the children's best interest.

Circumstances Had Not Significantly Changed

Neither mother's section 388 petition nor the showing she made at the hearing on her petition established changed circumstances.   The petition itself was nothing more than a series of conclusory allegations made by mother's attorney without the benefit of any supporting evidence.  (In re Edward H. (1996) 43 Cal.App.4th 584, 593.)   Furthermore, the testimony of both parents did little to advance the alleged changed circumstances.

At best, mother was in the process of completing a failure-to-protect course, which had been court ordered dating back to November 2009.   However, it was not enough for mother to simply complete court-ordered services.   She needed to show she made substantial progress in those services to mitigate the problems, which led to the children's removal, to warrant their return. (§ 366.21, subds. (e) & (f).)  This, mother failed to provide.   She testified to learning she previously “kind of” covered up for father, but she left it at that.   Her testimony was hardly proof of substantial progress.   She failed to demonstrate, as the department pointed out, that she had the ability to provide a safe home environment for the children.

Neither did mother introduce any uncontradicted or unimpeached evidence to support her claim that father was dying.   The medical reports, including the disability letter, submitted by father did not include any information that his condition was terminal.   At most, there was father's testimony that he was going to die.   Notably, however, he claimed he was not told what his life expectancy was.   Mother meanwhile relied on the disability letter to support her testimony that he had “about a year” to live.   However, what the disability letter disclosed was that father's condition was grave and his disability would extend beyond one year.

In addition, there was conflicting evidence regarding mother's claims that she was not living with father and would not live with him in the future.   The juvenile court, moreover, found mother was not credible.   We are a court of review and will not disturb the juvenile court's credibility finding.

Further, although mother believed father no longer posed a risk of harm to the children, she overlooks father's failure to participate in reunification services.   He, at most, attended a parenting course with her in the fall of 2010.   He essentially refused to participate in all other court-ordered services to address his substance abuse and propensity for violence.   Thus, he still posed a substantial risk of serious physical harm to the children, even as he recovered from his cancer treatment.

Finally, the parents lose sight of the fact that the circumstances as of May 2011 were essentially no different from those in August 2010.   At the August 2010 hearing, mother also pleaded with the court to return the children to her care on account of father's cancer, as well as her claim that they would live separately and he did not pose a significant threat to the children.   Although the court did grant mother an extended visit, it ended after six weeks due to the parents' noncompliance with the court's orders.   As of May 2011, there were no assurances that history would not repeat itself.

No Best Interest Showing

Because mother did not establish that circumstances had changed, we need not reach the second element of her section 388 petition, namely whether a return of custody would advance the children's best interest.   Nevertheless, we take this opportunity to point out the following.

Notwithstanding the love mother had for her children, the juvenile court properly could find she remained committed to her marriage to father.   However, mother's commitment to him did not advance the children's needs for permanency and stability (Stephanie M., supra, 7 Cal.4th at p. 317) and therefore changing the children's custody at the permanency planning stage was not in the children's best interest.

As the California Supreme Court explained in Stephanie M., by the time a child's dependency has reached the permanency planning stage, a parent's interest in the care, custody, and companionship of the child is no longer paramount.   Rather, the focus shifts to the child's needs for permanency and stability.   In fact, there is a rebuttable presumption that continued out-of-home care is in the best interests of the child.   A court hearing a modification petition at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child.  (Stephanie M., supra, 7 Cal.4th at p. 317.)

Here, mother did not introduce any evidence, let alone establish, that the children's need for permanency and stability would be advanced by ordering their return to her custody.

DISPOSITION

The orders denying mother's section 388 petition and terminating parental rights are affirmed.

FOOTNOTES

FOOTNOTE.  

FN1. All statutory references are to the Welfare and Institutions Code unless otherwise indicated..  FN1. All statutory references are to the Welfare and Institutions Code unless otherwise indicated.