In re N.R. CA3 ( 2021 )

Filed 12/13/21 In re N.R. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Yolo)
----
In re N.R., a Person Coming Under the Juvenile Court C093660
Law.
YOLO COUNTY HEALTH AND HUMAN (Super. Ct. No. JV2020152)
SERVICES AGENCY,
Plaintiff and Respondent,
v.
M.R.,
Defendant and Appellant.
M.R., mother of the minor (mother), appeals from the juvenile court’s orders
denying her oral and written petitions to modify prior orders. (Welf. & Inst. Code,
§§ 388, 395.)1 We will affirm the juvenile court’s orders.
1 Undesignated statutory references are to the Welfare and Institutions Code.
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BACKGROUND
The 15-year-old minor came to the attention of the Yolo County Health and
Human Services Agency (Agency) on June 17, 2020, after the minor reportedly
experienced suicidal thoughts and engaged in self-harming behaviors as a result of
mother’s mental health issues. The minor stated, “If my mother blames me or keeps me
isolate[d] in the home anymore I am going to kill myself. I cannot take this anymore.
Please help. I punched myself all over my body because I am so depressed.” Mother had
been diagnosed with depression three years prior and her mental health continued to
decline. She believed people were watching her and the minor and she covered the
windows in her home to prevent people from seeing in. She once told the minor that she
would kill him if he ever tried to leave her. Mother was not receiving mental health
services for herself and she prevented the school district from providing mental health
services to the minor. During a welfare check, mother declined police officers access
into her home and did not allow them to speak to the minor alone. She also informed the
Agency that she would not allow social workers into her home or to speak to the minor.
Family members and friends reported that mother exhibited paranoid behavior and
isolated the minor in the home.
The Agency eventually obtained a warrant and was able to communicate with the
minor, who admitted engaging in self-harming behavior, having past thoughts of suicide,
and recently attempting suicide. He also confirmed mother’s paranoid behavior.
On July 17, 2020, the Agency filed a nondetaining dependency petition on behalf
of the minor, pursuant to section 300, subdivisions (b) and (c), alleging the minor was at
substantial risk of serious physical and emotional harm due to mother’s mental health
issues and father’s failure to protect the minor from mother’s behaviors.
Mother requested a contested jurisdiction hearing. The court ordered mother to
make the minor available to the Agency for an interview.
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Mother testified at the contested jurisdiction and disposition hearing on October 5,
2020. She denied the minor attempted to harm himself with a knife in her presence and
stated she was unaware the minor had been hitting himself. She admitted telling the
social worker that people were following her, but denied having been diagnosed with any
mental health conditions, or that she stayed by the window to watch for people following
her or asked the minor to do so. Mother did not feel the minor needed a mental health
assessment but allowed an evaluation to be done anyway due to the Agency’s concerns.
She testified she “wouldn’t be okay” with the minor being prescribed medication for his
mental health issues and she would not be comfortable with a home study.
Social worker Dana Peters testified she was unable to assess the minor because
mother refused to speak with her without a court order and would not allow the Agency
into her home. She further testified that mother refused to sign a release of information
regarding the minor’s treatment. The court sustained the petition and ordered mother to
allow the social worker into the home.
The Agency reported that, despite its multiple attempts, mother continued to deny
access to her home and to the minor. The Agency obtained a warrant and placed the
minor in protective custody.
The minor was present with his foster parent, via videoconference, at the
continued disposition hearing on October 22, 2020. The minor’s counsel reported the
minor was doing well in his foster placement and did not wish to return home. The
Agency agreed with minor’s counsel and informed the court that mother was referred to
various services, including mental health assessment, parenting classes, and individual
counseling. Mother’s counsel argued mother allowed the social worker access to her
home and therefore the minor should be returned to mother’s care, noting the only reason
the minor was removed was because mother refused to allow the social worker into her
home. The court ordered continued out-of-home placement for the minor and
reunification services for mother. The court also ordered a minimum of three hours of
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visitation between mother and the minor every other week, giving the Agency discretion
to increase the amount, and monitor telephone contact, with no calls during school hours,
before 7:00 a.m., or after 8:00 p.m.
Mother filed a notice of appeal from the court’s October 5, 2020, and October 20,
2020, orders.
Agency’s Section 388 Petition
On November 16, 2020, the Agency filed a section 388 petition requesting that the
court change its prior visitation order and order: (1) no contact “until the minor’s
therapist and [the minor] together deem visits are appropriate”; (2) a limitation on
mother’s right to make educational decisions for the minor; and (3) that mother
participate in a psychological evaluation/assessment by an Agency-approved provider.
The Agency argued the minor was unwell to visit with mother and had expressed anxiety
about the idea of visiting or seeing her. The petition noted that, during the minor’s initial
week of placement, mother called the minor 15 to 20 times per day and called during
nighttime hours, during which calls mother was crying, yelling, and screaming. As a
result, the minor turned off his cell phone and complained that mother’s behavior was
causing him to suffer from sleeping problems.
The court heard the Agency’s section 388 petition on November 19, 2020. Mother
objected to the request for no visitation or contact, stating she would need to hear directly
from the minor that he did not want to have any contact with her. She also objected to
the remainder of the petition. The Agency reported that mother attempted to contact the
minor’s cousin 46 times in an attempt to locate the minor and, as a result, the maternal
aunt had to change the cousin’s telephone number. Mother also refused to participate in
the minor’s independent educational plan (IEP) meeting at the minor’s school unless she
was provided with contact information for the minor’s confidential caretakers. The
Agency further reported that mother contacted the minor’s school 20 times per day in an
attempt to obtain contact information for the foster caretakers.
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Minor’s counsel joined in the Agency’s requested changes, arguing the minor had
been “exceptionally clear” in his wish not to see mother. With regard to visitation and
contact in particular, minor’s counsel informed the court that mother’s numerous attempts
to contact the minor or his caretakers “had an incredibly deleterious effect on [the
minor’s] mental health” and requested that the court admonish mother not to attempt to
contact or locate the minor in any way. The minor then stated on the record, “At the
moment, I do not want any contact with my mother due to her mental illness.”
The court found it was in the minor’s best interest to limit mother’s education
rights. The court ordered mother to have no contact with the minor “unless and until his
therapist deems that visits are once again appropriate,” and admonished mother not to
make any effort to contact the minor or find out where he was. The court further ordered
mother to participate in a psychological evaluation.
Agency’s Application for Psychotropic Medication / Mother’s Oral Section 388 Petition
On February 18, 2021, the Agency filed an application for psychotropic
medication. The physician’s statement attached to the application noted the minor was
placed on a section 5150 involuntary hold after attempting suicide. It was also noted that
the minor was experiencing severe depression, poor concentration, low energy, suicidal
thoughts, and severe audio hallucinations and individual therapy alone was insufficient to
manage those issues.
At the hearing on the Agency’s application on February 25, 2021, mother made an
oral section 388 motion to have the minor returned to her care. Mother’s counsel argued
that mother believed it was unsafe for the minor to be in foster care and his recent section
5150 hold arose out of the fact that he was not home with mother. Counsel further
argued the lack of contact between mother and the minor had been “damaging” to the
minor and to his relationship with mother. Mother’s counsel also stated mother’s
opposition to the application for psychotropic medication. Minor’s counsel noted the
minor’s mental health issues predated his placement in foster care and that mother failed
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to seek appropriate services for the minor. The minor was engaged in therapy and
developing a trusting relationship with his caregiver, and he reported that the medication
administered during his section 5150 hold was working well for him and he wanted to
take it. The minor consulted with a psychologist who provided ongoing medication
management. Minor’s counsel argued there was no evidence that mother’s request would
be in the minor’s best interest and, in fact, removing the minor from his placement and
returning him to mother “would be an absolute detriment to his safety and well-being.”
The court denied mother’s oral section 388 petition, finding there was no change
in circumstances and contact with mother would be detrimental and not in the minor’s
best interest. The court granted the Agency’s application for psychotropic medication
and ordered mother to sign a release of information in regards to her court ordered
psychological evaluation.
On March 2, 2021, mother filed a notice of appeal from the court’s February 25,
2021, order denying her oral section 388 petition.
Mother’s Second Section 388 Petition
On March 22, 2021, mother filed a section 388 petition seeking to change (1) the
court’s October 20, 2020, order removing the minor from mother’s custody and ordering
no contact between mother and the minor unless approved by the minor’s therapist, and
(2) the court’s February 25, 2021, order granting the Agency’s application for
psychotropic medication. Mother’s petition requested a new order returning the minor to
mother’s custody “on an emergency basis.” In support of the petition, mother attached
her declaration arguing (1) it had been more than four months of no contact, (2) there had
been no effort to initiate joint counseling, (3) the minor’s suicide attempt was “him
reaching out for help,” (4) she believed the minor wanted to come home and would be
safe at home, and (5) it would be in the minor’s best interest to be returned to mother.
Mother’s declaration further argued that the minor was taking psychotropic medication
over her objection and based on false statements made by the foster father and, if the
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minor was indeed having the problems described by the foster father, it was because the
minor was in foster care and not with his mother.
On March 22, 2021, the court summarily denied mother’s section 388 petition on
the grounds that it failed to show new evidence or a change of circumstances or that the
proposed change was in the minor’s best interest.
On March 30, 2021, the court reiterated its denial of mother’s section 388 petition,
noting its previous finding that there was no change in circumstances and the requested
change was not in the minor’s best interest. The social worker informed the court that the
minor’s therapist recommended no conjoint therapy and confirmed that contact between
mother and the minor continued to be detrimental, that much of the minor’s trauma was
triggered by mother, and that just hearing mother’s voice or having a discussion about
potential future contact with mother could trigger a traumatic reaction in the minor.
Minor’s counsel informed the court that she and the minor reviewed mother’s declaration
in support of the petition, much of which the minor disagreed with. The minor was
triggered by mother’s face and voice and, in response to mother’s claim that the minor
was perfectly happy in mother’s care, stated, “I was a mute who wanted to die. I was not
happy.” Minor’s counsel stated the minor requested the court be informed that he wanted
to remain in his current foster home and did not want to see or speak to mother.
On April 6, 2021, mother filed a notice of appeal from the court’s March 30, 2021,
order.
DISCUSSION
Mother filed notices of appeal from the juvenile court’s February 25, 2021, order
denying her oral section 388 petition and from the court’s March 30, 2021, order denying
her written section 388 petition. Both petitions sought to have the minor returned to
mother’s care and challenged the court’s prior no contact/visitation order and its order
granting the Agency’s application for psychotropic medication. Mother now challenges
the court’s no contact/visitation order, claiming she made a request for supervised or
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therapeutic visitation at the March 30, 2021, hearing, and that denial of that request was
an abuse of the court’s discretion.
The Agency argues the scope of mother’s appeal is limited to the hearings on
February 25, 2021, and March 30, 2021, and, because mother failed to appeal from the
court’s November 19, 2020, order issuing the prohibition on contact and visitation
between mother and the minor, mother is barred from raising that issue outside of the
context of her section 388 petitions. We agree with the Agency and, as we will explain,
mother’s claim lacks merit.
A. February 25, 2021, Order Denying Mother’s Oral Section 388 Petition
At the February 25, 2021, hearing on the Agency’s application for psychotropic
medication, mother made an oral section 388 petition arguing the minor should be
returned to her and that the lack of contact between mother and the minor was damaging
their relationship. The court granted the Agency’s application but denied mother’s oral
petition for failure to demonstrate a change in circumstances or that the requested change
was in the minor’s best interest.
“A juvenile court order may be changed, modified or set aside under section 388 if
the petitioner establishes by a preponderance of the evidence that (1) new evidence or
changed circumstances exist and (2) the proposed change would promote the best
interests of the child. [Citation.] A parent need only make a prima facie showing of
these elements to trigger the right to a hearing on a section 388 petition and the petition
should be liberally construed in favor of granting a hearing to consider the parent’s
request.” (In re Zachary G. (1999) 77 Cal.App.4th 799, 806; see In re Daijah T. (2000)
83 Cal.App.4th 666, 672.) We review the denial of a section 388 petition for abuse of
discretion. (In re S.R. (2009) 173 Cal.App.4th 864, 870; In re J.T. (2014)
228 Cal.App.4th 953, 965.)
Here, as a preliminary matter, mother’s oral section 388 petition did not meet the
minimum standards required by section 388, including that the petition be verified and
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that it “set forth in concise language any change of circumstance or new evidence that is
alleged to require the change of order.” (§ 388, subd. (a)(1).) Mother’s oral petition
made no showing of changed circumstances or that the minor’s best interests would be
served by granting mother’s request. Instead, mother simply argued it was unsafe for the
minor to be in foster care and the lack of contact or visitation was damaging to him. The
juvenile court did not abuse its discretion when it denied mother’s oral petition.
B. March 22, 2021, Order Denying Mother’s Written Section 388 Petition
Mother filed a written section 388 petition again seeking return of the minor to her
care and reversal of the November 19, 2020, no contact/visitation order. In response to
the inquiries regarding changed circumstances and best interest of the minor, the petition
referred to mother’s attached declaration. The change of circumstances or new evidence
alleged in a section 388 petition “must be of such significant nature that it requires a
setting aside or modification of the challenged prior order.” (Ansley v. Superior Court
(1986) 185 Cal.App.3d 477, 485; see In re Jamika W. (1997) 54 Cal.App.4th 1446,
1451.) “A petition which alleges merely changing circumstances and would mean
delaying the selection of a permanent home for a child to see if a parent, who has
repeatedly failed to reunify with the child, might be able to reunify at some future point,
does not promote stability for the child or the child’s best interests.” (In re Casey D.
(1999) 70 Cal.App.4th 38, 47.) The petitioner has the burden of proof by a
preponderance of the evidence. (Cal. Rules of Court, rule 5.570(h)(1)(D).) Mother did
not meet her burden.
Mother’s declaration makes no mention of changed circumstances. Instead, the
declaration provided a narrative of events from mother’s viewpoint and accusations of
alleged failures and improprieties on the part of the Agency, minor’s counsel, and the
foster father. Even if mother had made a showing of changed circumstances, the
declaration stated mother’s belief that the minor wanted to return home and would be safe
in her home and that it was in his best interest to be returned home but provided no
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evidence to support her position. The court concluded mother’s petition failed to state
new evidence or a change of circumstances or demonstrate that the requested change
would be in the minor’s best interest. We conclude there was no abuse of discretion.
C. March 30, 2021, Order Confirming Denial of Mother’s Section 388 Petition
Without once mentioning the denial of either of her section 388 petitions in her
opening brief on appeal, mother claims she requested supervised or therapeutic visitation
at the March 30, 2021, hearing, and that the juvenile court improperly denied that request.
We disagree.
As a preliminary matter, mother’s claim challenges the propriety of the juvenile
court’s November 19, 2020, order prohibiting contact and visitation between mother and
the minor. Mother did not appeal from that order, and the time within which to do so has
long since passed. (Cal. Rules of Court, rule 8.104; In re Meranda P. (1997)
56 Cal.App.4th 1143, 1151.) Thus, mother is barred from challenging that order here on
appeal.
In any event, the discussion and argument at the March 30, 2021, hearing
regarding contact between mother and the minor was part and parcel of the hearing on
mother’s section 388 petition. As the juvenile court stated, the hearing “was calendared
by Mom actually, who made a [section] 388 request” but “she hasn’t even met the
threshold to get this on calendar so I denied the request. However, it somehow didn’t get
taken off calendar so we’re here today.” The court noted it had previously made an order
stating it was detrimental for the minor to have visitation with mother, but the detriment
finding was not documented in the court’s minute order. In order to rectify that problem,
the court noted it conducted an “off-the-record discussion” prior to the start of the hearing
and then asked minor’s counsel to summarize for the record what occurred in prior
hearings regarding the court’s detriment finding.
Minor’s counsel recounted the events of the November 19, 2020, hearing during
which the court issued an order prohibiting contact between mother and the minor.
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Counsel also recounted the events of the February 25, 2021, hearing during which the
court heard mother’s oral section 388 petition and found visitation with mother was
detrimental to the minor. In support of mother’s section 388 petition, mother’s counsel
argued the minor’s section 5150 hold constituted a change in circumstances and that it
would be in the minor’s best interest to have some contact with mother (such as joint
counseling). Counsel further argued that mother did not understand why she was
prohibited from having contact with the minor and requested that “at the very least
Mother have some kind of contact.” The social worker informed the court that the
minor’s therapist was still of the opinion that contact between mother and the minor
would be detrimental and could “trigger traumatic reactions” in the minor. Minor’s
counsel also informed the court that the minor had carefully reviewed mother’s
declaration and disputed numerous statements and claims therein. Finally, mother
expressed to the court why she felt it would be in the minor’s best interest to be returned
to mother’s care. The court confirmed its previous detriment finding for the record and
noted it would revisit the issue at a future hearing scheduled for April 22, 2021.
While mother argues she properly raised the issue of visitation and contact when
she “requested that the juvenile court order the Agency to comply with its statutory duty
to provide her with the mandated visitation that would be necessary in order for her to
reunify with [the minor],” there was no separate visitation/contact order from which to
appeal. As mother properly concedes, her section 388 petition requested that the court
change its November 19, 2020, no-contact order. The record shows that the court denied
mother’s petition after hearing argument from the parties, including argument from
mother that contact in the form of therapeutic counseling would be in the minor’s best
interest. The court reiterated its prior finding of detriment and made no new order
regarding visitation and contact between mother and the minor.
The juvenile court did not abuse its discretion in denying mother’s section 388
petitions.
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DISPOSITION
The juvenile court’s orders are affirmed.
/s/
HOCH, J.
We concur:
/s/
MAURO, Acting P. J.
/s/
MURRAY, J.
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