IN RE: JULIUS H. et al.

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Court of Appeal, Second District, California.

IN RE: JULIUS H. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. MICHELLE A., Defendant and Appellant.

B230878

Decided: October 31, 2011

Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Amir Pichvai for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Michelle A. (Mother) appeals from orders granting in part and denying in part her petition under Welfare and Institutions Code section 388 1 to reinstate reunification services as to her minor children.   She contends the juvenile court should have reinstated reunification services as to all five minor children, not just two of the children.   We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Mother has six children who were declared dependents of the juvenile court under section 300, subdivision (a).   At the time the petition was filed, on December 27, 2007, the oldest child, Ariel G., was 16 years old;  M.G. was 14 years old;  Walter H., Jr. was 9 years old;  E.H. was 7 years old;  Julius H. was 2 years old;  and D.H. was a newborn.   The children were detained after Mother left Ariel and M.G. in the parking lot of the hospital where she went to give birth to D.H. The other three children were with their father, Walter H., Sr. (Father).  Father had a substance abuse problem;  he and Mother had physical and verbal altercations, and Father had physically abused the children.   In addition, the family was homeless.

The father of the two older children, Salvador G.,2 had been kept from his children by Mother, but he had recently been seeing them without Mother's knowledge.   He wanted Ariel and M.G. to live with him.   Both Ariel and M.G. said they would only live with Mother if Father did not live with them.

The juvenile court found a prima facie case for detention.   Ariel and M.G. were released to Salvador G., who made arrangements for them to stay with their maternal aunt and uncle, E. and Benjamin R. The four younger children were detained in foster care;  Walter, E.H. and Julius were placed in one foster home, and D.H. was placed in another.   Shortly before the jurisdiction/disposition hearing, the four younger children were placed together in one foster home.

At the jurisdiction/disposition hearing on February 22, 2008, the juvenile court sustained the petition and declared the children to be dependents of the court.   The court ordered Mother to participate in individual counseling to address case issues including parenting;  domestic violence, understanding alcohol abuse;  age appropriate discipline;  communication;  and child protectiveness.   Father was ordered to participate in counseling including parenting;  drug counseling with random testing;  domestic violence;  and anger management.

On March 4, 2008, the Department of Children and Family Services (DCFS) filed a supplemental petition under section 387 as to Ariel and M.G. It explained that Salvador G. was unwilling to care for the children because they were causing problems for him and his family.   The children said they wanted to live with their maternal aunt and uncle, with whom they continued to live.   The petition was sustained on June 26, 2008.

Prior to the six-month review hearing, Walter and E.H. were placed in one foster home, while Julius and D.H. were placed in another.   DCFS reported that Walter and E.H. were experiencing behavioral difficulties.   Mother and Father were in partial compliance with their case plan, and they had been visiting consistently with the children.   DCFS recommended that Mother and Father continue to receive reunification services and believed there was a high probability the four younger children could be returned to their custody.

On August 28, 2008, DCFS reported that Walter and E.H. had been moved to new foster homes twice due to calls Father made to the foster parents.   DCFS had been unable to place the four younger children together due to Walter's and E.H.'s behavioral problems.   Mother and Father were participating in individual and couples counseling.

By September 16, 2008, DCFS reported Mother and Father had made sufficient progress in their counseling to permit them unmonitored visitation with the children.   The juvenile court ordered continued reunification services and unmonitored day visits.

However, on November 19, 2008, DCFS reported that it had discontinued unmonitored visitation.   Mother failed to communicate with the children's caregivers regarding visitation and was late in returning the children to the homes.   Despite a meeting with DCFS regarding these problems, on October 21 Mother dropped Ariel and M.G. off two hours prior to the scheduled end of their visit, about a mile from their home.   In addition, E.R. was requesting that Ariel and M.G. be removed from her home due to Mother's behavior.   The children were later moved to different foster homes.

DCFS also reported that Mother and Father had moved from their home without notifying DCFS and had been staying in different locations.   Father had stopped attending his drug program and was about to be terminated from the program.   The juvenile court agreed with DCFS's recommendation and restricted visitation.

On February 26, 2009, DCFS recommended additional reunification services.   Mother and Father had made progress, although they needed to continue counseling and had no suitable housing.   While they had not been consistent in their visitation, this was due in part to the fact that the children were in different foster homes some distance from each other.   On March 18, Mother and Father were once again granted unmonitored visitation.

On April 20, 2009, DCFS advised that the children might be returned to Mother soon, although she would need to continue with her counseling and obtain stable housing.   It requested discretion to give Mother unmonitored overnight visitation.   It notified the court, however, that Father had been terminated from his counseling due to excessive cancellations.   Because Father was out of compliance with his case plan, DCFS later suggested that Father move out of the home he shared with mother in order to facilitate her reunification with the children.   It also noted that he had not been drug testing and requested that his visitation be monitored.

On May 10, 2009, Walter returned from unmonitored visitation with a bruise on his arm.   Walter and E.H. gave different explanations as to how Walter was injured.   DCFS investigated and learned that Father had hit Walter over a broken video game.   Mother was present at the time and yelled at Father for hitting Walter.   DCFS learned that Father had been arrested twice in April—once for driving under the influence and once for petty theft.   Although Father's driver's license had expired, he continued to drive the children on their visit.   DCFS recommended that Father's visitation be monitored, and that Mother only be allowed unmonitored visitation if Father was not present.

On May 28, Walter and E.H.'s foster mother requested that they be placed in another home.   About a week later, they were moved to a new foster home.

DCFS reported that both Mother and Father were denying that Father hit Walter's arm.   Despite being told not to discuss the matter with the children, Mother had accused Walter of lying about his injury and told him that if he lied, he would be adopted rather than returned home.

DCFS filed a section 342 subsequent petition on June 17, 2009, alleging that Father had abused Walter, and Mother failed to protect him.   In a later interview with DCFS, Mother accused Walter of lying about abuse by Father.

The juvenile court sustained the section 342 petition on August 4, 2009.   It terminated Father's reunification services but, on DCFS's recommendation, it gave Mother an additional three months of reunification services.   It granted her monitored visitation and ordered her to enroll in individual counseling with a new licensed therapist.   The court also terminated its jurisdiction over Ariel, who had turned 18.

On November 4, 2009, DCFS reported that it was exploring the possibility of adoption with the five younger children's foster families;  M.G.'s foster parents expressed an interest in providing a permanent home for him and his siblings.   Mother had begun counseling with a new therapist, but the therapist reported that Mother was not taking responsibility for the abuse of the children.   Mother was visiting with the children, and the visits were appropriate.   Father had moved out of Mother's home, but DCFS believed that Mother was maintaining her relationship with him and would allow him to return once the children were returned to her and the case was closed.   DCFS therefore recommended termination of reunification services.

On January 25, 2010, DCFS reported that Mother said she had terminated her relationship with Father and had not spoken to him in over a month.   She also maintained that she was not responsible for the abuse of her children because she was not present when it occurred.   At the hearing on the matter, the juvenile court stated it was disappointed that “Mother didn't testify so I could hear from her whether she got it or not.   The evidence seems to suggest in all the reports that she hasn't gotten it.   I believe there is a substantial risk to the children if released to Mother.”   It therefore terminated reunification services and set the matter for a section 366.26 selection and implementation hearing.

On the date of the section 366.26 hearing, May 26, 2010, DCFS reported that 16–year–old M.G. did not want to be adopted, and DCFS recommended that he remain in his current foster home until he went to college.   Walter and E.H., who were 11 and 10 years old, had been placed in the same foster family as M.G. They too did not want to be adopted;  they wanted to stay with their brother.   The boys' foster parents did not want to adopt them or become their legal guardians, but the foster parents were willing to continue caring for the boys.   DCFS recommended that the boys remain in their current placement while DCFS looked for more permanent placements.

DCFS reported that 4–year–old Julius and 2–year–old D.H. had been in their current placement since February 18, 2010.   They appeared to be happy and comfortable in their home, and the foster mother stated she was forming a close relationship with the children.   The foster mother and father wanted to adopt the two children.

On the same date, Mother filed a section 388 petition seeking reinstatement of reunification services, unmonitored visitation, and return of the children.   In her supporting declaration, Mother stated that “[s]ince [her] family reunification services were terminated, [she had] completed approximately 14 hours of ․ individual counseling with licensed counselor Niles Nicholson.”   In addition, she had “participated in family conjoint counseling with [her] three older children.”   She also had “worked one-on-one with a parental educator” to learn how to parent and protect her children.

Mother stated, “I have learned how my prior behavior negatively impacted the children.   I accept responsibility for the detriment I caused by protecting [Father] and fully acknowledge the violence that he perpetrated in the home.   I have separated myself from [Father] and have had no contact with him in the calendar year 2010․  I have no plans to return to [Father] and I will protect my children from [Father] in the future.   I am deeply saddened by the negative effect I played in my children's lives by maintaining contact with him previously.”   She added that she had a “deep bond” with the children and they missed her “very much.”

In its supplemental report on Mother's petition, DCFS acknowledged that Mother had “a relationship with her children;  however, more so with the older children than with D.H. and Julius.”   DCFS described Mother's relationship with the children as “ ‘toxic.’ ”   DCFS noted that earlier in the year, Mother violated court orders that her contact with the children be monitored by having an unmonitored visit with M.G. and by giving M.G., Walter and E.H. cell phones without their foster parents' knowledge.   DCFS did not believe Mother would not keep Father from contact with the children if they were returned to her care due to her lack of judgment.

In July 2010, DCFS reported that Ariel was living with Mother and had been visiting with her younger siblings during Mother's visits.   Ariel wanted unmonitored visitation with her siblings, but DCFS was concerned that she did not have enough insight into the situation to make appropriate decisions.

The hearing on Mother's section 388 petition began on January 12, 2011.   DCFS reported than in November 2010, Mother called the children's social worker (CSW) requesting overnight visits.   When the CSW reminded her that visits were monitored because of the incident in which Father hit Walter on the arm, Mother responded that she was not present when the incident occurred and therefore could not say what happened.   She called the CSW later in the month to request that Julius and D.H. be moved, because the foster mother was not letting her talk to the children on the phone.   The CSW told Mother that it would not be in the children's best interests to be moved again, because they had been moved multiple times and were comfortable in their current placement.   Mother responded that they had only been moved twice.   In fact, they had been moved six times.

DCFS stated that while placement of the children together and adoption would have been the preferred permanent plan, it was not an option.   It noted that Mother and Father had “been instrumental in sabotaging their children's placements in a number of previous foster homes in which the foster parents had requested the removal of the children due to the difficulty in dealing with the parents.”   DCFS thus was recommending a Planned Permanent Living Arrangement for 17–year–old M.G. with his current foster parents.   It was recommending adoption for Walter and E.H., even though they stated they did not want to be adopted and wanted to remain with M.G. and their foster family.

The identified permanent plan for Julius and D.H. was adoption by the current foster parents, with whom they had been living for 11 months.   Since being detained, Julius and D.H. had not lived with their older siblings and did not have a bond with them.   They appeared to have a closer bond with their foster parents than with Mother.   During visitation, the children would turn to their foster mother for attention and called her “Mom.”

DCFS noted that the foster mother had expressed concern about maintaining post adoption contact between Julius and D.H. and their siblings due to the difficulty of dealing with Mother.   Mother was demanding and uncompromising regarding visitation;  she got upset when the children did not want to talk to her on the phone and did not seem to understand that they were too young to speak on the phone for long periods of time.   The foster mother was willing to facilitate post adoption sibling visitation as she deemed appropriate but did not want to enter into a formal post adoption contact agreement.

DCFS also reported on a Team Decision Meeting with Mother and her therapist in December 2010 regarding visitation.   The supervising CSW asked Mother to sign a safety contract regarding unmonitored visitation, but Mother refused.   The CSW also informed Mother that the children could not visit in her home until everyone who lived there was live-scanned and cleared by DCFS. Mother stated that the maternal grandmother stayed with her for periods of time;  the maternal grandmother is bipolar and schizophrenic and wants nothing to do with DCFS. The maternal uncle, who apparently also stayed with Mother, was working on getting his criminal record cleared.   The therapist agreed to work with the maternal grandmother to get her to live-scan.

The hearing was continued on January 13, 2011.   At that time, the juvenile court granted Mother's petition as to Walter and E.H. only.   The court agreed that Mother had demonstrated a change of circumstances but found it would not be in the other children's best interests to reunify with Mother.   As to Walter and E.H., the court wanted to give Mother unmonitored visitation on the condition Mother continue in conjoint counseling with the boys.   The court also wanted Mother to meet with DCFS to set up a safety plan so that the boys could return home.

M.G. had stated that he did not want to return home;  he wanted to be emancipated from his current foster home and go to college.   For that reason, the court denied the petition as to him.

As to Julius and D.H., the court noted that “[d]espite there may be a substantial change in circumstances and despite the fact that the Legislature wants to preserve family as much as possible, that is all true, however, it's called a reunification period.   That period has long gone.  [¶] These two children have set down roots.   They formed attachments based upon undisputed evidence that's been submitted to the court.   Their primary attachment is with their current caretaker, not with the mother.”

That Julius enjoyed visits with his siblings was not dispositive of his best interests.   As to D.H., during visitation she did not interact with the other siblings in the way Julius did.   The court had “to balance the relationship, the quality of the relationship Julius has with siblings versus the detriment if separated from the current caretaker.”   The court noted that D.H. had lived with Julius for more than half of Julius's life, and the two probably had a closer relationship than Julius did with his other siblings.   The court believed that “the best interest of Julius require[s] that he remain placed with D.H. under the identified permanent plan of adoption, that the removal would be detrimental and ․ would not outweigh the benefits of giving Mother [reunification] services to try to keep the family unit together.”

DISCUSSION

Section 388 permits a party to petition the juvenile court to change its prior orders based upon a change of circumstances.  (In re Amber M. (2002) 103 Cal.App.4th 681, 685;  In re Casey D. (1999) 70 Cal.App.4th 38, 47.)   The party seeking a change must demonstrate both that a change of circumstances exists and that the proposed change of court order is in the child's best interests.  (Casey D., supra, at p. 47.)   We review the court's rulings on the petitions for abuse of discretion.  (Amber M., supra, at p. 685;  Casey D., supra, at p. 47.)   Discretion is abused when the court's ruling is arbitrary or capricious or exceeds the bounds of reason.  (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)

Mother contends the juvenile court should have reinstated reunification services as to all five of her minor children.   Mother devotes much of her argument to a discussion of her changed circumstances.   The juvenile court found that there had been a change of circumstances, so that is not an issue.

With respect to the children's best interests, Mother complains that “the court minimized the attachment Julius has to his older brothers.”   Mother argues that “[t]he record, including the testimony of M.G., shows that this is still a viable sibling group.   In denying mother's 388 petition as to the younger children, who have not even participated in conjoint therapy with their mother and brothers, the juvenile court has effectively already decided that it is going to break this sibling group up for good.   Never mind the sibling relationship exception to adoption. (§ 366.26[, subd.] (c)(1)(B)(v).)  The juvenile court has prejudged that issue.”

Mother adds, “The juvenile court should not sever Julius and D.H. from the rest of this healing family.   The order denying mother's petition as to them should be reversed.   As to M.G., his stated desire to avoid further reunification appears to have been a snap decision during the course of the proceedings.   Given the fact that he is still participating in visitation, including overnights, as well as conjoint therapy, the juvenile court should not have kept the door to reunification closed.”

Mother's focus is on reunification of her family.   In her mind, it was the court's actions which prevented her from reunifying with her family.   Mother is wrong.

As noted in In re Marilyn H. (1993) 5 Cal.4th 295, “[t]he federal and state Constitutions guarantee that no state shall deprive any person of life, liberty or property without due process of law.  [Citation.]  A parent's interest in the companionship, care, custody and management of his children is a compelling one, ranked among the most basic of civil rights.  [Citation.]  Likewise, natural children have a fundamental independent interest in belonging to a family unit [citation], and they have compelling rights to be protected from abuse and neglect and to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child.   [Citation.]  The interests of the parent and the child, therefore, must be balanced.”  (Id. at p. 306.)

When a child has been removed from the parent's custody, the initial focus of dependency proceedings is reunification of the child with the parent.  (See In re Marilyn H., supra, 5 Cal.4th at p. 308.)   Once reunification services are terminated, however, the focus of the proceedings shifts to the child's need for permanency and stability.  (Id. at p. 309.)   This is the situation here.

As the juvenile court observed, the reunification “period has long gone.”   Mother failed to reunify with her children although given more than the statutorily allotted time.   The court's focus at that point switched from reunification to permanency and stability for the children.  (In re Marilyn H., supra, 5 Cal.4th at p. 309.)

As to M.G., he was almost an adult.   He was capable of making a decision as to whether he wanted to reunify with Mother.  (Cf. § 366.26, subd. (c)(1)(B)(ii).)   The reality was that in a short time, he would be able to make his own decision whether he wanted to live with Mother or not, as Ariel had.

As to Julius and D.H., in determining whether the proposed change is in the child's best interests, “a primary consideration ․ is the goal of assuring stability and continuity.  [Citation.]  When custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role.  [Citation.]  That need often will dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.  [Citation.]  Thus, one moving for a change of placement bears the burden of proof to show, by a preponderance of the evidence that there is new evidence or that there are changed circumstances that may mean a change of placement is in the best interest of the child.   [Citations.]”  (In re Angel B. (2002) 97 Cal.App.4th 454, 464.)

By the time of the hearing on Mother's petition, Julius was almost six years old and D.H. was three.   The two had been together in foster care most of Julius's life and virtually all of D.H.'s life.   They had been moved six times during this time, and were finally in a placement in which they were comfortable and which offered them the potential for permanence.   They viewed their foster parents as their family.   Mother failed to show that it was in their best interests to await possible reunification with Mother and their older siblings rather than to allow them to be adopted into a permanent home.   The juvenile court therefore did not abuse its discretion in denying Mother's section 388 petition.  (In re Amber M., supra, 103 Cal.App.4th at p. 685;  In re Casey D., supra, 70 Cal.App.4th at p. 47.) 3

DISPOSITION

The orders are affirmed.

We concur:

FOOTNOTES

FN1. All further section references are to the Welfare and Institutions Code..  FN1. All further section references are to the Welfare and Institutions Code.

FN2. Neither Father nor Salvador G. is a party to this appeal..  FN2. Neither Father nor Salvador G. is a party to this appeal.

FN3. We take judicial notice of the fact that after denying Mother's section 388 petition, on February 9, 2011, the juvenile court terminated Mother's parental rights over Julius and Destinie pursuant to section 366.26.   Thus, as to them the appeal is in any event moot.  (In re C.C. (2009) 172 Cal.App.4th 1481, 1488.)   Walter and E.H. were returned to Mother, but the juvenile court retained jurisdiction over them..  FN3. We take judicial notice of the fact that after denying Mother's section 388 petition, on February 9, 2011, the juvenile court terminated Mother's parental rights over Julius and Destinie pursuant to section 366.26.   Thus, as to them the appeal is in any event moot.  (In re C.C. (2009) 172 Cal.App.4th 1481, 1488.)   Walter and E.H. were returned to Mother, but the juvenile court retained jurisdiction over them.

PERLUSS, P. J. ZELON, J.