In re J.B. CA2/5 ( 2022 )

Filed 5/19/22 In re J.B. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re J.B. et al., Persons Coming B313460
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No.
AND FAMILY SERVICES, 18LJJP00850A-F)
Plaintiff and Respondent,
v.
E.B.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Robin R. Kesler, Judge Pro Tempore. Affirmed.
Shaylah Padgett-Weibel, under appointment by the Court
of Appeal, for Defendant and Appellant.
Tarkian & Associates and Arezoo Pichvai for Plaintiff and
Respondent.
In January 2021, the juvenile court asserted dependency
jurisdiction over E.B.’s (Mother’s) six children, removed them
from her custody, and ordered monitored visits between Mother
and the children. The Los Angeles County Department of
Children and Family Services (the Department) later petitioned
the juvenile court to modify its disposition order to reduce the
frequency of Mother’s in-person visitation with the children and
to restrict her rights to make decisions about their education. We
consider whether the juvenile court erred in granting the
Department’s request.
I. BACKGROUND
A. The Dependency Proceedings Through Jurisdiction
and Disposition
We described the pertinent background facts, from
initiation of dependency proceedings through the juvenile court’s
disposition order, in resolving a prior appeal involving the
children. (In re J.B. (Nov. 29, 2021, B310364) [nonpub. opn.].)
We reproduce much of that background here and then describe
what has happened since.
1. Overview of the dependency allegations
Mother has six children: Jay. B. (Jay), born in 2008; Joh. B.
(Joh), born in 2009; Jor. B. (Jor), born in 2011; Jah. B. (Jah), born
in 2014; Jou. H. (Jou), born in 2017; and Jan. H. (Jan), born in
2019. Jay, Joh, and Jor’s father is D.P.; Jah’s father is A.B.; and
Jou and Jan’s father is S.H. Mother was in a relationship with
S.H. when dependency proceedings commenced and for at least a
time afterward. This case involves multiple dependency
petitions—including subsequent and supplemental petitions—
2
filed between 2018 and 2020, which all culminated in
adjudication and disposition hearings in January 2021.
At the January 2021 adjudication hearing, the operative
petitions included a first amended Welfare and Institutions Code1
section 300 petition concerning Jan, filed September 3, 2020; a
section 387 (supplemental) petition concerning all the other
children filed November 5, 2019; and a first amended section 342
(subsequent) petition concerning all the other children filed
September 3, 2020. The allegations pertinent to Mother include
domestic violence between Mother and S.H., substance abuse,
medical neglect, secreting two of the children from the
Department and the juvenile court, and failure to comply with
the juvenile court’s orders. Rather than recite a full chronology of
the dependency investigation, we shall discuss the facts relevant
to each allegation and summarize the adjudication and
disposition hearings.
a. domestic violence
The first amended section 300 petition as to Jan and the
first amended section 342 petition as to the other children alleged
Mother and S.H. have a history of engaging in violent
altercations in the children’s presence. In particular, the
petitions alleged Mother attempted to hit S.H. with her car in
March 2018 and S.H. pushed, strangled, and threatened to kill
Mother in January 2020.
As to the March 2018 incident, Mother said she and S.H.
were “arguing about gas and she ‘zoomed’ up on him but there
1
Undesignated statutory references that follow are to the
Welfare and Institutions Code.
3
was no [domestic violence].”2 Mother was convicted of assault
with a deadly weapon. She explained she “took a plea deal
because [sh]e didn’t want to stay in jail.” As for the January 2020
incident, Mother told the social worker S.H. did not touch her but
she “told the police lies about him being physical because [she]
wanted him to leave.”
b. substance abuse
In February 2019, the Department filed a section 300
petition as to the five oldest children alleging, among other
things, Mother’s use of marijuana rendered her incapable of
providing regular care for the children. The juvenile court
sustained this allegation at an adjudication hearing in May 2019.
A later-filed section 300 petition as to Jan alleged Mother
used marijuana during her pregnancy with Jan, he was of an age
requiring constant care and supervision, and Mother’s marijuana
use rendered her incapable of providing regular care and
supervision.
Mother told a Department social worker she started using
marijuana at her doctor’s suggestion in 2017 because the drugs
her doctor originally prescribed to manage spina bifida and
related pain made her “comatose.” Mother claimed she only
smoked in the garage in the morning and at night when the
2
According to a Los Angeles County Sheriff’s Department
incident report admitted in evidence at the adjudication hearing,
a witness saw Mother driving alongside S.H. and
“suddenly . . . dr[i]ve over the curb and onto the sidewalk where
[S.H.] was walking,” forcing S.H. “to jump out of the way and
climb onto a cinder block wall to avoid being struck by the
vehicle.”
4
children were asleep. Mother continued to use marijuana during
her pregnancy with Jan to manage her pain and to help her eat.
Mother told the social worker she “talked to” her doctor about
using marijuana during her pregnancy, but it is not clear from
the appellate record whether Mother claimed her doctor approved
of her doing so. Mother said she stopped using marijuana in
August 2020, but she did not submit to testing to confirm this.
A social worker noticed a “strong odor of marijuana . . . from the
inside of the home” when Mother answered the door on one
occasion.
c. medical neglect
A first amended section 300 petition as to Jan and a first
amended section 342 petition as to the other children alleged
Mother failed to enroll Jay in physical therapy and to ensure he
attended scheduled appointments following hip surgery.
Jay broke his hip in December 2017. Dependency
proceedings began when the Department received a referral in
October 2018 indicating Jay had not received follow-up care and
was still using a wheelchair. The petitions alleged Jay missed
appointments on July 3, 2019, July 24, 2019, and August 7, 2019.
In July and August 2019, Mother told a social worker she
missed Jay’s July 3, 2019, appointment because she had recently
given birth to Jan (on June 15, 2019). She also said she
rescheduled the July 24, 2019, appointment because it was too
early in the morning. A few months later, Mother told a social
worker she was unable to make the July 24, 2019, appointment
because she had post-partum mobility issues. She explained
Jay’s doctor rescheduled the August 2019 appointment and Jay
saw the doctor in September 2019. Mother said physical therapy
5
was not ordered until September 2019 and issues with Jay’s
insurance and a delay in obtaining a local referral prevented her
from making a physical therapy appointment before Jay was
detained from her in November 2019.
Jay’s doctor’s office told the social worker Mother was a
“no-show” for the appointments in July and August 2019 and
records indicated Mother told the office Jay did not want to wake
up. Jay’s father, D.P., told a social worker he did not know about
Jay’s missed appointments.
When a social worker sent Mother a text message in
October 2019 inquiring whether any of the children had
upcoming dentist appointments (only one had seen a dentist in
the prior year), Mother told her to “[s]top texting period[.] these
are my kids[.] worry about [yo]ur son.” According to Mother, her
“kids do not have to go to the dentist by law” and “as long as they
are not complaining to me and [in] pain or sickness and hunger
th[e]n I think I’m doing a damn good job . . . .”
d. secreting children from the Department
and the juvenile court
The first amended section 300 petition as to Jan and the
first amended section 342 petition as to the other children alleged
Mother tried to hide Jah and Jou from the juvenile court and the
Department.
When a Department social worker advised Mother the
Department was seeking a removal order for the children in
October 2019, Mother said the Department would “never get her
kids” and she was under no obligation to cooperate with the
Department or the juvenile court. A few days later, the
Department detained Joh, Jay, and Jor at school. When social
6
workers went to Mother’s home to detain the younger children,
S.H. said they were with relatives and the Department was “not
getting them.” Later that day, Mother arrived at the
Department’s offices with friends and threatened social workers.
Mother and S.H. had the younger children brought to the juvenile
court a few days later under threat of arrest.
e. failure to comply with court orders
In May 2019, the juvenile court ordered a case plan that
required Mother to submit to weekly drug testing; undergo a
mental health assessment and participate in individual
counseling and classes to address substance abuse, domestic
violence, and anger management issues; and obtain certain
services for the children, including individualized education
program (IEP) assessments for Jay and Joh and counseling for
Jay, Joh, and Jor. The section 387 petition as to Jay, Joh, Jor,
Jah, and Jou alleged Mother denied social workers access to her
home and failed to comply with various elements of this case
plan.
In the two years preceding the jurisdiction and disposition
hearings in January 2021, Mother insisted she would not comply
with court orders. For instance, in January 2019, Mother told a
social worker she did not “give a fuck what [the juvenile court]
wants.” In October 2019, she told a social worker she refused to
comply with juvenile court’s orders because she was not going to
allow the government to bully her.3
3
Mother’s temperament was also manifest at a hearing in
December 2019 at which she said “[f]uck this place” and the
juvenile court indicated she “left the courtroom, hit the door
7
With respect to unannounced home visits by the
Department, Mother told a social worker in January 2019 that
she was “through” complying with the Department and the
juvenile court. When the social worker told Mother an arrest
warrant would likely be issued if she absconded with the
children, Mother said she did not care. Mother further stated
that if the social worker showed up at Mother’s house again
Mother would beat the social worker up.
With respect to drug testing, Mother tested positive for
marijuana on two occasions in early 2019 but she did not test
again between May 2019 (when the juvenile court ordered weekly
testing) and January 2021 (when she testified during the
adjudication hearing that she was willing to submit to testing).
When a social worker sent Mother a text message in July 2019
reminding her of her obligation to drug test, Mother replied, “I’m
not doing it.” In November 2019, Mother again stated she would
not submit to drug testing. In December 2020, Mother told a
social worker she was unable to drug test because she had no
transportation and was caring for her sick parents.
As of November 2019, Mother refused to participate in
court-ordered individual counseling because therapy did not help
her in the past and she feared it would bring up issues from her
childhood and put her into a deeper depression. Mother told a
social worker she did not complete 52 weeks of a domestic
violence class—originally ordered as a condition of her probation
for assault with a deadly weapon against S.H.—because she
believed the curriculum was sexist, she was one of only two
aggressively and shouted an obscenity in the hallway. . . . And
continue[d] to shout obscenities from the hallway.”
8
women in the class, and she felt the instructor was disrespectful.
The service provider told a social worker Mother was terminated
from the program because she was disruptive and used
obscenities towards the other clients. Mother also told a social
worker the children did not want therapy, she did not believe
they needed it, and she would not force it on them. She likewise
felt there was no need for Jay and Joh to be assessed for IEPs
because both already had student support team plans.
2. Adjudication
In January 2021, the juvenile court held a contested
adjudication hearing on the operative petitions. The juvenile
court heard testimony by Joh, social worker Adina B., Mother’s
niece, and Mother.
Mother testified, among other things, that she did not
obtain IEP assessments for Jay and Joh because she felt they did
not require IEPs and “[w]hen that starts, it’s a cycle and it
continues in your education.” She believed the “less rigorous”
student study team programs in which they participated were
“almost the same.” Mother also testified she refused to have her
children undergo psychological evaluations in 2019 because she
felt they had not “experienced anything traumatic,” but she was
now amenable to having them evaluated because she believed the
children were neglected and abused in foster care.
The juvenile court took jurisdiction over the children
pursuant to section 300, subdivisions (a), (b), and (j). As to the
domestic violence allegations, the court found them true. The
court reasoned that even if S.H. did not strangle Mother, Mother
admitted that he threatened to kill her, she was convicted of
trying to hit S.H. with her car, and they thereafter maintained
9
contact in violation of a protective order. As to allegations of
substance abuse, the juvenile court indicated it was “well past”
deciding whether Mother’s marijuana abuse affected the children
because this issue was already litigated and appealed. In any
case, the juvenile court reasoned the children were aware of
Mother’s marijuana use because they knew not to go into the
garage. Mother’s refusal to submit to drug testing was a problem
because the juvenile court had no way to determine how much
marijuana she was using or to confirm that she was not abusing
other drugs. The juvenile court further found Mother failed to
comply with orders to undergo a mental health assessment and to
obtain services for the children, including counseling and IEP
assessments. Mother’s conflict with a social worker did not
excuse her non-compliance, because, in the court’s view, Mother
“had a problem with everyone involved in this case”: she did not
cooperate with the Department and told multiple social workers
that she would not comply with court orders. Finally, as to
medical neglect, the juvenile court did not credit Mother’s
testimony that she was physically unable to take Jay to his
medical appointments. Her pregnancy was no excuse, in the
juvenile court’s view, because she was willing to leave the
hospital against medical advice when she had the baby.
3. Disposition
The juvenile court heard additional testimony from Mother
and social worker Sandee T. at the disposition hearing. Mother
testified she was currently participating in mental health
services and attending Alcoholics Anonymous meetings. Therapy
was not impacting “the parenting of [her] children” but was
“helping [her] deal with” the dependency proceedings. She
10
planned to start a new domestic violence class later in the month.
She was no longer using marijuana and was willing to submit to
drug testing. She still objected to IEPs for her children, but
stated she might be amenable to “just an assessment.” She said
she would address Jay’s medical issues.
Mother further testified that although she did not get along
with the previously assigned social worker, she had a much
better relationship with her current social worker and would
allow her into her home any time. She also testified, however,
that she “didn’t need anyone’s help” and she “just knew as a mom
that [she] was doing everything in [her] power to keep [the
children] away from things that they needed to be kept away
from, and leading them in the right direction . . . .”
Social worker Sandee T. was assigned to Mother’s case in
February 2020. During this time, Mother completed a 12-week
parenting class. The social worker testified that the instructor
told her Mother was sometimes distracted or unable to focus.
Mother claimed she was in therapy, but Sandee had not yet
called the provider for confirmation. Sandee observed visits
between Mother and the children and testified that Mother’s
conduct varied: “She is definitely there and engaged and presents
as a mom,” including by singing with the children and “tr[ying] to
teach them things,” but Sandee sometimes had to “redirect[ ]”
Mother when she spoke negatively about caregivers in front of
the children or let the children wander off. Sandee had “some
concerns” about returning the children to Mother and expressed
her desire to have Mother submit to drug testing
notwithstanding Mother’s claim to have stopped using
marijuana. Sandee also suggested Mother needed to
11
demonstrate “more consistency with her . . . mental health
services” and avoid unhealthy relationships.
The juvenile court found a substantial danger to the
children’s physical and emotional well-being and no reasonable
means by which to protect them without removing them from
Mother’s care. The court did not credit Mother’s testimony that
her resistance to services was due to conflict with specific social
workers because “[s]he’s had multiple issues with social workers,
including making threats in the [Department’s] lobby” and she
was angry and disruptive in domestic violence classes. Further,
as to Mother’s substance abuse, the court concluded there was no
evidence she was no longer using marijuana, other than her own
testimony. The juvenile court said it had no faith Mother would
comply with court orders—adding her claimed willingness to
cooperate with social worker Sandee was irrelevant because the
juvenile court could not “guarantee that [a particular social
worker] would always be there.”
Significantly for purposes of this appeal, the juvenile
court’s disposition order authorized Mother to have monitored
visits with the children three times per week. Mother was
ordered to have shared educational rights concerning the
children,4 but the juvenile court cautioned that “[i]f she stops any
4
The appellate record does not conclusively establish with
whom Mother shared educational rights shortly after the
disposition hearing. When counsel for the children inquired as to
whether sharing would be with the current caregivers, the
juvenile court replied, “I’m going to let you make the decision as
to who it’s going to end up being. If it’s not the caregivers, we
need to find someone that would assist these children.” The
juvenile court’s minute orders indicate “Minors’ counsel is to
assess for a new coeducational rights holder.” In a subsequent
12
of the service providers from moving forward, then her rights
would be restricted.”
B. Proceedings Following the Disposition Hearing
About six weeks after the disposition hearing, in February
2021, the Department petitioned the juvenile court to modify its
disposition order based on changed circumstances.5 The
Department asked the juvenile court to limit Mother to one visit
with the children per week and to restrict her rights to make
educational decisions for them. Over the ensuing months, the
Department submitted several reports documenting facts
relevant to these recommendations and other case issues. In a
report filed shortly before the June 2021 hearing when the
Department’s changed circumstances petition was heard by the
court, the Department clarified its recommendation concerning
educational rights and asked the juvenile court to appoint a new
rights holder for Jay, Joh, and Jor, and a new co-holder for Jah.6
Department report, the Department requested the juvenile court
“unappoint Maternal Aunt . . . as Educational Rights Holder for
[Jay], [Joh], and [Jor] and to appoint a new Educational and
Developmental Rights Holder for each child . . . and [assign] a co-
holder . . . to [Jah].”
5
The juvenile court denied the petition filed in February
2021 because the Department did not use the correct form. The
Department filed a new petition making the same
recommendations in March 2021.
6
Jou and Jan’s paternal grandmother was appointed their
educational rights holder in March 2020, and they had regional
center referrals pending in 2021. The Department did not seek to
13
We elaborate on what occurred, focusing on these two topics:
visitation and educational rights.
1. Visitation
The Department’s reports detail three major issues relating
to Mother’s contact with the children: the presence of other
friends and family at visits that made them difficult to monitor,
several instances of unmonitored contact between Mother and
the children, and noncompliance with COVID-19 safety protocols.
a. other visitors
The Department reported that, in January 2021, Mother
invited “multiple” family members to a visit with the children
that took place on Joh’s birthday without first notifying the
Department. The monitor was accordingly unable to monitor all
the adults and children at one time. A social worker who
attempted to identify the attendees following the visit was unable
to do so. Later, during a scheduled visit in April 2021, Mother
invited approximately 20 friends and family from different
households and again did not notify the Department in advance.
The visitation monitor unsurprisingly reported “he was unable to
manage the party.”
modify the previous order appointing Jou and Jan’s paternal
grandmother as their educational rights holder.
14
b. unmonitored contact
Mother provided cell phones to Jay, Joh, and Jor without
notifying the Department.7
Mother had extensive unmonitored contact with Joh. He
repeatedly ran away from his foster home and, on at least two
occasions, visited Mother. In one instance, Mother let Joh play
with a dog she bought him for his birthday before taking him to a
Los Angeles Sheriff’s Department (LASD) station. Joh was upset
to find that Mother was again living with S.H., and he later told a
social worker it was S.H. who demanded she bring Joh to the
LASD station. On another occasion, Mother dropped Joh off at
her parents’ home to stay the night. When she learned a social
worker was going to pick up Joh, Mother drove back to her
parents’ home, “grabbed [Joh] by the wrist and told him to get in
her car.” Eventually, Mother brought Joh back to the home, but
she “stood in the doorway and stated that she would not release
[Joh] back to the Department.”
In April 2021, Joh’s caregiver reported Joh had stolen his
old cell phone and used it to exchange text messages with Mother
and a maternal cousin. It is not clear which of the two sets of
screenshots attached to the Department’s report involves Mother
and which involves the cousin, but one told Joh he “need[ed] to
move” and the other told Joh to keep the stolen phone hidden.
The Department submitted evidence suggesting contact
with Mother prompted at least two of the children to act out.
7
Joh showed a social worker text messages in which he
asked Mother if the Department knew about the phone “as he
[did not] want to be in trouble for having it.” Mother (falsely)
assured Joh the Department was aware of the phone and told
him “u have rights to have contact with me.”
15
Joh’s therapist reported Mother was a “trigger” for Joh and both
the therapist and Joh’s caregiver observed “that after visitations
[Joh’s] defiant behaviors are significantly increased.” Jah told a
caregiver that Mother “told her if she acts bad, she [would] get to
come home.” Jah confirmed this statement to a social worker and
added, “but I don’t know why I do it, why I listen when I don’t
know if I want to live with [Mother] again.”
c. COVID-19 safety measures
The Department reported that in January 2021 Mother
refused to put on a mask before hugging and kissing Jay. A few
weeks later, Mother removed Jor’s mask and kissed her on the
mouth. During a subsequent visit, Mother refused to wear a
mask “which in turn influenced the children not to wear their
masks.” When a social worker monitoring the visit said it would
be cancelled due to Mother’s failure to wear a mask, Mother was
reported to have “aggressively shoved a slice of pizza in her
mouth and shouted, ‘I’M EATING’ while making chewing sounds
before putting her mask on her face.” Further, during the
previously mentioned April 2021 visit with 20 friends and family
members, no one wore a mask. Mother and the children also
wore masks around their chins during a visit a couple weeks
later. (This was after the juvenile court issued an order on April
15, 2021, requiring “[a]ll parents . . . to wear masks to visits and
follow all COVID protocols.”)
2. Educational rights
Following the January 2021 disposition hearing, Mother
told a Department social worker she would sign releases for court
ordered IEP assessments. When the social worker followed up in
16
February 2021, Mother refused to consent to IEP assessments.
Mother reasoned Jay did not need an IEP because he was able to
read and Joh would not benefit from an IEP because, although he
had behavioral issues, he would “be put in the class with all the
kids with their own behavior problems . . . .” In March 2021,
Mother told a social worker “‘my children do not need [an IEP
assessment] so you can stop asking me.’”
Joh told a Department social worker he wanted an IEP to
address his behavioral issues on multiple occasions. His
therapist agreed he was in “dire need of an IEP for his
behaviors.” A few months after the disposition hearing, Joh was
suspended from school for “screaming” at a teacher who
prevented him from listening to music during a lecture. Mother
scheduled a student study team (SST) meeting with Joh’s
teachers in May 2021 to address additional support “in the areas
of Academics and/or Speech,” but refused to allow Joh’s social
worker or caregiver to attend. The school’s summary of the
meeting indicates Mother was the “sole Ed Rights Holder.” Joh
stated he wanted an IEP and a tutor, but the SST agreed that
because he was “performing only slightly below grade level,” he
would be adequately served by resources already in place and
would “not be referred for an assessment to determine special
education eligibility at this time.” Joh’s behavioral issues were
not addressed.
The Department reported Jay had “satisfactory grades,”
but noted he “shows signs of struggle[ ] and delays compared to
classmates.” Based on Mother’s admitted use of marijuana in the
past, the Department was concerned Jay “may have [a] mild
disability that has not been assessed.” A social worker opined
Jay and Joh, both then 12 years old, “struggle[d] with the concept
17
of time” and were unable to tell “a story with a beginning, middle,
and end and in that order.”
Jor did not complete all of her schoolwork and, on at least
two occasions in 2021, threw violent tantrums when directed to
complete missing assignments. These included slamming a
school laptop on a counter, “lightly” hitting her head against a
wall, and throwing items at her caregiver. When Jor’s caregiver
asked Mother to encourage Jor to go to school, Mother told a
social worker that “‘if she [i.e., the caregiver] [is] going to raise
my kids then I don’t need to tell my child what to do . . . .’” Jor’s
teachers had to closely monitor her internet use and were “often
closing down her internet tabs where she [was] watching Youtube
and TikTok videos instead of paying attention.” Jor responded by
shouting at a teacher, calling her names, and screaming “I hate
you.” A school counselor suggested both Jor and Jah would
benefit from “more intensive mental health services.” The
Department reported Jor responded “very well to positive
affirmation” and suggested she would benefit from additional
tutoring, but her school was unable to provide free resources
without an IEP.
Jah’s father, A.B., requested an IEP assessment in
February 2021 and Jah’s SST planned to assess her further. The
Department asked the juvenile court to appoint a “second co-
holder” of educational rights as to Jah to “assist with speed of
acquiring signed documents for referrals.”
3. The Hearing on the Department’s Changed
Circumstances Petition
The juvenile court held a hearing on the Department’s
petition in June 2021.
18
With respect to visitation, Mother argued her health issues
made it difficult for her to breathe wearing a mask. She also
argued that she resorted to unmonitored contact with the
children because she did not receive all visits to which she was
entitled. With respect to educational rights, Mother argued she
was highly involved in the children’s education and her
resistance to IEPs was justified by the children’s academic
performance.
The children’s attorney believed the children’s current
caregivers should have full educational rights but did not join the
Department’s recommendation to reduce visitation. The
children’s attorney believed safety issues could be resolved by
means short of limiting Mother to one in-person visit per week,
i.e., requiring two monitors, excluding others from the visits, or
making some of the visits telephonic.
The juvenile court was convinced Mother’s in-person visits
should be reduced. The juvenile court was skeptical of Mother’s
inability to wear a mask because she used marijuana and
emphasized that, in any case, “she could instruct her children to
put on their masks appropriately . . . .” The juvenile court
ordered Mother to have three monitored visits of two hours each
per week: one in person and two by telephone. The court
emphasized the in-person visits were to be “COVID compliant,”
meaning Mother was to wear a mask and require her children to
wear masks. The juvenile court also ordered Mother’s
educational rights restricted based on her resistance to the
Department and caregivers attending IEP meetings and asked
minors’ counsel to submit proposed orders designating
educational rights holders for all the children.
19
II. DISCUSSION
The juvenile court did not abuse its discretion in granting
the Department’s changed circumstances petition. Reducing
Mother’s three weekly in-person monitored visits to one in-person
and two telephonic visits was warranted in light of Mother’s
conduct during visitation. She made effective supervision—the
need for which was underscored by Mother’s conduct outside of
visits—impossible on more than one occasion and she willfully
increased the children and their caregivers’ risk of contracting
COVID-19. The restriction of Mother’s educational rights was
warranted by her persistent refusal to comply with court orders
to have Jay and Joh assessed for IEPs and her failure to address
Jor’s needs.8
A. Visitation
Section 388 provides that a person with an interest in a
child may petition the juvenile court to modify a previous order
based on changed circumstances. (§ 388, subd. (a)(1).) The
petitioner has the burden to show, by a preponderance of the
evidence, both that circumstances have changed and the
proposed modification is in the best interest of the child. (In re
B.D. (2008) 159 Cal.App.4th 1218, 1228.) We review the grant or
denial of a changed circumstances petition under section 388 for
abuse of discretion. (Ibid.; see also In re Alayah J. (2017) 9
Cal.App.5th 469, 478.)
The juvenile court ordered monitored visitation at the
disposition hearing based on Mother’s long history of
8
Mother does not challenge the juvenile court’s order
regarding educational rights as to Jah.
20
inappropriate behavior. At that time, the juvenile court
reasonably believed this would be sufficient to protect the
children. (§ 362.1, subd. (a)(1)(A) [“Visitation shall be as frequent
as possible, consistent with the well-being of the child,” emphasis
added].) Mother’s conduct during in-person visits demonstrated
it was not.
On at least two occasions, monitors were unable to control
the visits because Mother brought friends and family without
advance notice. These problems were compounded by Mother’s
conduct outside of visits: Jah told the Department Mother
encouraged bad behavior to sabotage her placement and
unmonitored contact between Joh and Mother—including
instances in which he ran away and she did not promptly return
him to his caregiver—did nothing to improve Joh’s struggles in
his foster care placement. In addition, and whatever the merits
of Mother’s claim that she could not wear a mask, her flouting of
COVID-19 protocols went well beyond a personal refusal to wear
a mask. Mother’s refusal to wear a mask herself and to ensure
the children wore their masks persisted even after the juvenile
court made orders requiring such compliance. On these facts, the
juvenile court reasonably concluded Mother’s in-person visits
were threatening the children’s well-being; the modified
visitation order mitigated these risks by moving most visits to a
more readily monitored setting while ensuring Mother and the
children continued to have some weekly in-person contact.
Mother’s counterargument to all this rests principally on
her view that her hostile posture toward the Department,
caregivers, and monitors was justified.9 She emphasizes she did
9
Mother also asserts there was no substantial evidence of a
change in circumstances because her “lack of compliance with
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not receive all of the visits to which she was entitled, highlights
episodes in which she was agitated because caregivers allowed
the children to dress in a manner she deemed inappropriate, and
selectively quotes pre-disposition reports offering qualified praise
of her parenting skills. None of this is relevant, however, to the
juvenile court’s assessment of whether Mother’s post-disposition
conduct warranted modification of its visitation order. Even if
Mother’s concerns were well founded, her remedy was not to host
unmanageable gatherings, to evade the court order for monitored
contact with the children, and to ignore COVID-19 protocols.
B. Educational Rights
Mother does not challenge the juvenile court’s order
limiting her educational rights under the framework of section
388. That is to say, she does not suggest there was no change in
circumstances following disposition or that restricting her
parental rights was not in the children’s best interest. Rather,
she contends the juvenile court’s order violates her
constitutionally protected liberty interest in directing her
children’s education. (See In re R.W. (2009) 172 Cal.App.4th
1268, 1276.) This interest is not, however, absolute (ibid.), and
court-ordered services . . . was cited by the [juvenile] court in
support of its order for removal at disposition.” This is
unpersuasive. Her disregard of court orders took on new and
different forms (e.g., flouting of COVID-19 safety protocols), and
regardless, her continued efforts to resist rules put in place by
the court at disposition is itself a changed circumstance
warranting further efforts by the juvenile court to enforce the
orders it previously made.
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the restrictions ordered here (which are consistent with statutory
directives) do not transgress constitutional limitations.
“If the parent or guardian is unwilling or unable to
participate in making an educational decision for their child, or if
other circumstances exist that compromise the ability of the
parent or guardian to make educational decisions for the child,
the county welfare department or social worker shall consider
whether the right of the parent or guardian to make educational
decisions for the child should be limited.” (§ 366.1, subd. (e).)
When a child is adjudicated a dependent of the juvenile court,
“the court may limit the control to be exercised over the
dependent child by any parent.” (§ 361, subd. (a)(1).) Limitations
on a parent’s right to make educational decisions for the child
“may not exceed those necessary to protect the child.” (§ 361,
subd. (a)(1).)
Here, Mother had not complied with the juvenile court’s
May 2019 order to obtain IEP assessments for Jay and Joh by the
January 2021 jurisdiction and disposition hearings, but she
indicated she would do so. By the next month, she was again
refusing to cooperate. When she eventually requested an SST
meeting for Joh in May 2021, she excluded the Department and
Joh’s caregiver and the child’s behavioral issues were not
discussed. Mother made no effort to comply with the juvenile
court’s order as to Jay. There was no court order to have Jor
assessed for an IEP, but Mother effectively abdicated any
responsibility for Jor’s education by refusing to “tell [Jor] what to
do” while Jor was not living with her.
Mother nonetheless contends the juvenile court erred in
restricting her educational rights because there was no basis for
the earlier order requiring her to obtain IEP assessments for Jay
23
and Joh. She highlights their satisfactory school attendance
before they were removed from her care and argues their grades
did not “automatically mandate the need for an IEP.” At no time,
however, has the juvenile court found otherwise. Mother’s
argument regarding the necessity of implementing IEPs does not
address the appropriateness of assessing the children for IEPs.
Assuming Mother is correct that the evidentiary record does not
currently establish the need for IEPs, it still provides ample
support for the juvenile court’s view that complete assessments
were necessary for Jay and Joh. Moreover, Mother’s
demonstrated resistance to services—and refusal to so much as
encourage Jor to attend classes—shows she was unwilling or
unable to address Jor’s educational needs and supports the
juvenile court’s educational rights order. (In re D.C. (2015) 243
Cal.App.4th 41, 58 [“Just as in other areas of dependency law,
the juvenile court need not wait until harm occurs before”
limiting a parent’s educational rights].)
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DISPOSITION
The juvenile court’s order granting the Department’s
changed circumstances petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM, J.
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