IN RE: E.C. et al. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

C.L. (Mother) appeals from the juvenile court's order summarily denying her petition under Welfare and Institutions Code section 388.¹  By her petition, Mother sought to change the court's visitation order from monitored to unmonitored visits with her four children.

On December 29, 2010, after Mother filed her opening brief in this matter, the Los Angeles Department of Children and Family Services (DCFS) filed a motion for partial dismissal of Mother's appeal.   DCFS requested that this court take judicial notice of the juvenile court's October 25, 2010 order granting Mother unmonitored visits with her three oldest children, E.C., D.T. and T.T. The juvenile court ordered visits with Mother's youngest child, K.W., to remain monitored.   DCFS argues that Mother's appeal from the denial of her section 388 petition is moot as to E.C., D.T. and T.T. Mother has not indicated that she opposes DCFS's motion.

We grant DCFS's unopposed request for judicial notice and motion for partial dismissal of Mother's appeal.   With respect to her children E.C., D.T. and T.T., Mother obtained the change in order she sought in her section 388 petition—unmonitored visitation.   Thus, her appeal as to those three children is moot.

We review the order appealed from as to K.W. We conclude that the juvenile court did not abuse its discretion in summarily denying Mother's section 388 petition regarding monitored visitation with K.W.

BACKGROUND

In September 2005, this family came to the attention of DCFS because of allegations of physical abuse by Mother against 13–year–old D.T. Eight-year-old K.W. told the social worker that Mother would punish her by hitting her on her legs, arms and back with a belt.   Mother told the social worker that she had a prior referral because she “whooped” K.W. and K.W. had bruises.   Mother also discussed her history with drugs, gang involvement, prison and mental problems.   Mother stated that she would not participate in any family preservation programs because she had been through them before.   The children were not detained at that time.

In October 2005, K.W. called the social worker and reported that Mother had woken her up at 2:30 a.m., physically assaulted her and told her to leave the house.   According to K.W., Mother let K.W. remain in the house, but spit in K.W.'s face eight times.   Mother denied these allegations.   K.W. told the social worker that she was “unhappy with the way her mother treats her,” and she did not want to live with Mother.   She wanted to live with her maternal grandmother, with whom she had lived for the first five years of her life.   According to Mother, K.W.'s father was deceased.

On November 3, 2005, DCFS detained K.W. and her siblings.   On November 8, 2005, DCFS filed a petition under section 300 based on Mother's physical abuse of the children, her history of substance abuse and her mental and emotional problems.   K.W. was detained in the home of her maternal grandmother.

In January 2006, the juvenile court sustained allegations in the dependency petition regarding Mother's physical abuse of the children, her history of substance abuse and her mental and emotional problems.   Thereafter, the court ordered monitored visitation for Mother “with the consent of the minors,” and ordered Mother to complete a case plan, including random drug and alcohol testing, psychiatric care and individual counseling.

In May 2006, DCFS removed K.W. from her maternal grandmother's home after one of K.W.'s brothers reported that their grandmother had hit K.W. with a “tire strap” after K.W. kicked her cousin “for no reason.”   The social worker observed “red welt marks” on K.W.'s arm and leg.

DCFS placed K.W. in the home of her paternal grandmother.   In June 2006, DCFS removed K.W. from this home at the grandmother's request.   K.W.'s paternal grandmother reported that K.W. had “ongoing behavioral problems” and had punched her grandmother in the eye.

DCFS placed K.W. in foster care.   A few days later, the caregiver took K.W. to the police station “because of [K.W.]'s assaultive behavior.”   The caregiver told DCFS that K.W. “is an extremely defiant child and has serious emotional issues.”

In June 2006, DCFS reported that Mother had not had any visits with K.W. The social worker arranged for a monitored visit on K.W.'s birthday, but Mother “failed to show for the visit.”

By July 2006, K.W. was living at Maryvale, a group home.   K.W. informed DCFS that she did not want to live with mother ever again.   Mother called K.W. at Maryvale.   The call was monitored.   K.W. told Mother she did not want to talk to her, and K.W. hung up the phone.   K.W. called Mother back.   Mother inquired about visits.   K.W. told Mother that she did not want to live or visit with Mother.   According to the monitor, the call “ended on good terms” with Mother telling K.W. that she loved her.   Despite Mother's inquiry about visitation, DCFS reported that Mother refused visitation with all of her children.

In January 2007, DCFS reported on K.W.'s progress at Maryvale.   Although Maryvale staff noted that K.W. “ ‘appear[ed] to be responding positively to her treatment[,] ․ there continue[d] to be concerns regarding [K.W.]'s difficulty communicating her feelings of anger/frustration, her assaultive behaviors, enuresis, her symptoms of anxiety and depression and sexualized behaviors.’ ”   K.W. “continue[d] to feel anxious regarding her family contact and visits, specifically surrounding her paternal grandmother and mother.”   K.W. “ha[d] not had contact with her mother for the past couple of months,” but previously had “requested to make a couple of telephone calls to her mother,” which were monitored.   During these calls, Mother “discussed her case plan and questioned whether or not [K.W.] wanted to live with her.  [K.W.] responded to this issue in an appropriate manner and was able to briefly process this issue further after the call ended.”

K.W. had a tendency to have “tantrums ․ after a disappointment regarding her family (i.e. not attending a visit [with her paternal grandmother or brothers], no one being home when she attempted to call), but they ․ also occur[red] after she was redirected from her staff.”   During these tantrums, K.W. would “hit, kick, spit at staff, climb onto unsafe objects (i.e.closet), threaten to fire staff, or cry excessively.”   On two occasions, K.W. “took her clothes off and urinated in the Protective Separation Room ․ during her crises.”   K.W.'s paternal grandmother had been visiting K.W. twice a month, but “decided to discontinue visits” after K.W. “threw a tantrum” during a visit.

On February 27, 2007, the juvenile court terminated Mother's reunification services after she refused to complete her case plan.   In June 2007, DCFS reported that Mother was incarcerated for resisting arrest.   Mother enrolled in classes in jail and informed DCFS that she wanted to try to regain custody of her children.

In or around September 2007, K.W. had a visit with Mother at one of Mother's court appearances.   DCFS reported that, according to K.W.'s therapist, the visit was “a very disruptive experience for [K.W.].” After the visit, K.W. had nightmares and started “bringing up a lot of hurtful things from her past.”   K.W. told the social worker that she did not want to visit Mother again.   K.W.'s therapist informed the social worker that “she would not encourage visits with her mother at this time due to [K.W.]'s anxiety, nightmares and more frequent enuresis.”   K.W. was writing letters to Mother, and her therapist did not find that to be problematic.

Over the next couple of years, DCFS explored various relative placements for K.W., including the homes of the paternal grandmother, maternal grandmother and a maternal aunt who lived out of state.   K.W. had resumed visitation with her grandmothers.

In October 2008, K.W.'s court appointed special advocate (CASA) reported that, according to K.W.'s therapist, K.W. “openly fears her mother, when her mother calls.”   The following year, after Mother's release from incarceration, K.W. informed her CASA:  “ ‘My birth mother has never been a real mother to me, because of the way she treated us.   No real mother would do that.   I don't want visits from her right now.   She needs to take some time to settle.   She's not stable yet.’ ”   Mother “continue[d] to call [K.W.] regularly.   These call continue[d] to upset [K.W.], but not as much as previously.”

On or about December 17, 2009, K.W. ran away from Maryvale.   She was continuing to have “behavioral problems” there.   When she was located, K.W. was hospitalized on a 5150 hold and then returned to Maryvale on December 23, 2009.   K.W. was diagnosed with a psychotic disorder.   K.W. was hospitalized several more times because she presented a danger to herself and others.

In April 2010, the CASA reported:  “[K.W.] had a supervised visit with her birth mother, which her counselor reports as very negative toward [K.W.] She recommends they go back to phone conversations.”   The CASA also stated:  “[Mother] continues to call [K.W.] regularly.   These calls continue to upset her, but not as much as previously.   Her recent, highly critical visit had a very negative impact on [K.W.]”

On May 28, 2010, K.W. was placed in a different group home.   On June 17, 2010, Mother filed a section 388 petition, asking the juvenile court to change its April 22, 2010 order for monitored visitation between her and her four children.   Mother requested that the court “order unmonitored visits in her current placement at SHIELDS.”   Mother asserted the following changed circumstances:  “Ms. L[.] has enrolled in and continues to participate in SHIELDS․  As part of this program, Ms. L[.] has participated in individual counseling, Mommy, Daddy and Me classes, the Nu–Parent program, and Healthy Start program activities.   Ms. L[.] continues to submit to random urinalysis testing and has tested negative for all tests.   Mother visits all children on a regular basis.”   Mother submitted letters of support from SHIELDS and other documentation supporting her assertion of changed circumstances (e.g., a certificate from a parenting program and negative drug test results).

Mother also asserted that the requested change in order would be better for her children because:  “Mother visits her children on a regular basis.   Her children are all teenagers and would benefit from more liberal visits with their mother.   All visits with the minors have been positive and the minors look forward to seeing their mother.   Mother is fully bonded with her children and has been using the skills she is learning in her SHIELDS program during her interactions and visits.”

The juvenile court summarily denied Mother's petition.   The court checked boxes on the form order, stating (1) “The request does not state new evidence or a change of circumstances”;  and (2) “The proposed change of order ․ does not promote the best interest of the child.”   The court also wrote on the order:  “[The] children themselves are unstable.   Visits need to be monitored.”

DISCUSSION

Mother contends the juvenile court abused its discretion when it denied her section 388 petition without an evidentiary hearing.   As discussed above, we are reviewing the court's order only as to K.W. As to Mother's other three children, the appeal is moot.

Section 388, subdivision (a), provides:  “Any parent or other person having an interest in a child who is a dependent child of the juvenile court ․ may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court ․ for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.   The petition shall be verified ․ and shall set forth in concise language any change of circumstance or new evidence that are alleged to require the change of order or termination of jurisdiction.”   Under section 388, subdivision (d), “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 and shall give prior notice․”

“A petition under this section must be liberally construed in favor of its sufficiency.  [Citation.]  Thus, if the petition presents any evidence that a hearing would promote the best interests of the child, the court must order the hearing.  [Citation.]  The court may deny the application ex parte only if the petition fails to state a change of circumstance or new evidence that even might require a change of order or termination of jurisdiction.   [Citations.]”  (In re Angel B. (2002) 97 Cal.App.4th 454, 461.)   “[C]onclusory claims are insufficient to require a hearing.   Specific descriptions of the evidence constituting changed circumstances is required.”   (In re Ramone R. (2005) 132 Cal.App.4th 1339, 1348.)  “In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case.”  (In re Justice P. (2004) 123 Cal.App.4th 181, 189.)

As Mother acknowledges, “The juvenile court's determination to deny a section 388 petition without a hearing is reviewed for abuse of discretion.  [Citations.]  We must uphold the juvenile court's denial of appellant's section 388 petition unless we can determine from the record that its decision[ ] ‘ “exceeded the bounds of reason.   When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.”   [Citations.]’ ”  (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)

The juvenile court did not abuse its discretion in summarily denying Mother's petition requesting unmonitored visits with K.W. Mother's petition is devoid of evidence indicating that a hearing would promote the best interests of K.W.

As set forth above, the petition states:  “Mother visits her children on a regular basis.   Her children are all teenagers and would benefit from more liberal visits with their mother.   All visits with the minors have been positive and the minors look forward to seeing their mother.   Mother is fully bonded with her children and has been using the skills she is learning in her SHIELDS program during her interactions and visits.”

Mother's petition contains only conclusory claims about how the change in order might promote the children's best interests.   There is nothing in the petition about K.W.'s particular circumstances.   Moreover, it is clear from the record before the juvenile court that the general claims made in the petition do not even apply to K.W. Mother did not visit K.W. on a regular basis, and the couple of visits they had together were negative experiences for K.W. Two months before Mother filed her petition, K.W.'s counselor recommended that K.W. have only phone contact with Mother because their recent visit “had a very negative impact on [K.W.]” Even phone calls with Mother tended to upset K.W. Mother was seeking unmonitored visitation before she had even accomplished consistent and positive monitored visitation with K.W.

As the juvenile court noted in its order, K.W. was unstable.   In the few months before Mother filed her petition, K.W. had been hospitalized multiple times because she was a danger to herself and others.   Because contact with Mother tended to upset K.W., it was appropriate that such contact be monitored so the group home staff could understand the triggers for K.W.'s behavioral problems.

Mother asserts that the juvenile court should have considered only the claims she made in the petition and evidence in the record that she deems “undisputed.”   As set forth above, it is proper for the juvenile court to “consider the entire factual and procedural history of the case.”  (In re Justice P., supra, 123 Cal.App.4th at p. 189.)   The record demonstrates that (1) Mother never visited K.W. on a regular basis, (2) contact with Mother invariably upset K.W., and (3) K.W. consistently expressed negative feelings about her history with Mother.   An evidentiary hearing could not change this history.

The juvenile court did not exceed the bounds of reason when it summarily denied Mother's section 388 petition regarding monitored visitation with K.W.

DISPOSITION

Mother's appeal from the order denying her section 388 petition regarding monitored visitation is dismissed as moot as to children E.C., D.T. and T.T. As to K.W., the order is affirmed.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. Further statutory references are to the Welfare and Institutions Code..  FN1. Further statutory references are to the Welfare and Institutions Code.

MALLANO, P. J. JOHNSON, J.