In re Julian C. CA2/7

Filed 2/16/22 In re Julian C. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re JULIAN C., a Person Coming B312544
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. CK92053C)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
RUNA K.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, D. Zeke Zeidler, Judge. Affirmed.
Anne E. Fragasso, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Jane Kwon, Principal Deputy
County Counsel, for Plaintiff and Respondent.
_______________________
INTRODUCTION
The juvenile court declared Julian C. a dependent child of
the court and ordered family reunification services for his
mother, Runa K. The court subsequently terminated
reunification services, appointed Julian’s grandmother as his
legal guardian, and terminated dependency jurisdiction. Six
years later, Runa filed a petition under Welfare and Institutions
Code section 3881 to terminate the guardianship. The court
denied the petition, and Runa appealed. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Juvenile Court Appoints Julian’s Grandmother
as His Legal Guardian
Runa has three children: 17-year-old Jonathan, 15-year-old
Isayuh, and 11-year-old Julian. Jonathan and Isayuh have the
same father; Julian has a different father.
In December 2011 the Los Angeles County Department of
Children and Family Services received a referral stating that
Runa had been arrested for being under the influence of a
controlled substance and for child endangerment. The reporting
party said Runa appeared to be under the influence of
1 Statutory references are to this code.
2
methamphetamine. Runa claimed that she ingested
benzodiazepine (which she did not have a prescription for), but
also admitted that she used methamphetamine while pregnant
with Julian.
In February 2012 the juvenile court sustained a petition
under section 300. The court found true the Department’s
allegations under section 300, subdivision (b), that Runa had
been arrested for being under the influence of a controlled
substance and for willful cruelty to a child and that Runa had an
outstanding bench warrant relating to prior charges, “thereby
leaving [her] children without adequate care and supervision.”2
The court declared Julian a dependent child of the court,
placed him with Runa’s mother (Julian’s grandmother), and
ordered the Department to provide Runa with family
reunification services. The court ordered Runa to receive
parenting training and substance-abuse counseling, submit to
random drug testing, and participate in individual counseling.
One year later the court terminated family reunification services
for Runa and ordered the Department to provide Julian with
permanent placement services. In May 2014 the court appointed
Julian’s grandmother as his legal guardian and terminated its
dependency jurisdiction.3
2 The court also found true certain allegations regarding
Julian’s father (who was in custody at the time) under section
300, subdivisions (b) and (g), and ordered that he would not
receive family reunification services. Julian’s father is not a
party to this appeal.
3 “Following establishment of a legal guardianship, the court
. . . may terminate its dependency jurisdiction and retain
3
B. Runa Files a Petition Under Section 388 To
Terminate the Guardianship
On December 11, 2020 Runa filed a petition under section
388 to terminate the guardianship, using Judicial Council Forms,
form JV-180. Runa alleged the following changed circumstances:
She had completed a 12-week drug and alcohol treatment
program;4 she had obtained a “stable job” with a company that
provided grocery delivery services; she had a car and home; and
Julian had been living with her since April 2020. Runa alleged it
was in Julian’s best interest for the court to terminate the
guardianship because Julian was “doing well with [Runa] in [a]
homeschool program,” Julian had not been enrolled in school
when he lived with his grandmother, and Julian’s father would
be released from prison in a few weeks.
On December 31, 2020 Runa filed another JV-180 form
with a handwritten note on the top of the first page: “Amendment
. . . to ADD information.” Runa alleged that Julian’s
grandmother came “with the police” and took Julian and that,
since the grandmother had taken Julian, he was no longer
enrolled in school.
C. The Department Opposes the Petition
The Department submitted a report recommending the
court deny the petition to terminate the guardianship. The
report included the following information:
jurisdiction over the child as a ward of the legal guardianship
. . . .” (§ 366.3.)
4 Runa attached to the petition a certificate of completion of
the program.
4
Living Arrangements: Runa was living with Jonathan and
Isayuh in a hotel. Runa told a dependency investigator for the
Department that she had a permanent home and that she had
been living at the hotel for three to four months while the house
was under construction. The investigator later went to the
address Runa provided, but the house there did not appear to be
under construction. The investigator asked a woman sitting
outside the house whether she knew Runa, and the woman said
she did not. When the investigator subsequently described the
incident to Runa, Runa became “extremely upset and began to
yell” and questioned why the investigator went to the house.
Runa told the investigator to speak to an employee of the
hotel to confirm Julian had been living with her. The
investigator spoke to the employee, but the employee could not
confirm Julian was living there.
The investigator also interviewed Julian’s grandmother,
who stated that she never allowed Julian to live with Runa, but
that in October 2020 Runa came to her home, took Julian from
the front yard, and drove away. The grandmother said that after
she called Runa and asked her to return Julian, law enforcement
had to retrieve Julian from Runa’s hotel room. The grandmother
stated that she was “‘afraid to allow Julian to have visits’” with
Runa and that she overheard Runa “‘telling Julian through a
video game to say he had been living with his mom for four
months . . . if he wanted to live with her.’”
The investigator interviewed Julian the same day she
interviewed the grandmother. Julian stated: “‘I live with my
grandmother. I don’t know. She let me live there for four
months because my mom told me. I want to live with my mom
and brothers.’” A man named Issa H., who lived at the home of
5
Julian’s grandmother, also told the investigator that Julian lived
in the home and never lived with Runa
Prior Referrals to the Department About Runa: In
December 2016 Julian’s grandmother brought him to a park to
visit Runa, and Runa took him from the park. One week later
the grandmother spoke with a cousin who lived in Las Vegas, and
the cousin said that she had seen Runa and that Runa said she
had been staying in shelters in Las Vegas. Julian’s grandmother
filed a missing person report and, two weeks later, Runa, Julian,
Jonathan, and Isayuh were found in Chicago. Julian (at the time
five years old) said that Runa had given him cigarettes and beer
and that she had hit him and his brothers. Julian also stated
Runa would come to their house and start fights with his
grandmother.
In February 2018 the Department received a referral
stating that Runa had regained custody of Jonathan and Isayuh
under false pretenses. The reporting party stated Runa provided
“falsified documentation in family court which stated she was
compliant with being drug free and compliant with drug testing.”
A social worker met with Runa, who denied using drugs. Runa
refused to submit to a drug test, allow the social worker to verify
her residence, or sign any Department forms.
In January 2020 the Department received another referral
alleging Runa neglected her children. The reporter said Runa
was homeless and lived “‘in a black suburban truck that she
parks in front of’” her mother’s house. The reporter stated: “‘The
children don’t go to school and haven’t gone to school in at least
three years. They don’t shower. . . . [Runa] is collecting money
for the kids but she uses it for drugs and doesn’t get food or
provide for the kids.’” The reporter added that another adult in
6
the grandmother’s home “‘saw track marks on [Runa’s thighs]
and arms a couple days ago.’”
Runa’s Compliance with the Court-ordered Programs:
Runa completed a parenting course in 2016. When the
investigator asked Runa whether she had completed any other
court-ordered programs, Runa mentioned the drug and alcohol
program certificate she attached to her section 388 petition.
Runa did not say she received individual counseling.
Runa also showed the investigator a negative drug test.
The test had a December 2011 date but, according to the
investigator, “it appeared the date was bolded in with a pen.”
The following week the investigator asked Runa to provide any
certificates she had, and Runa responded with a text message
that stated: “‘[T]he paper u took a picture of when u were here
for the negative test that paper should be the solution to this
whole thing it was negative . . . . I shouldn’t have even been in
any program because if the court really takes the time to
investigate that negative text [sic] all this should have been
closed and Julian should be home without any problems or issues
from any worker . . . . And the issue isn’t bout me it’s bout [h]ow
the officer took Julian illegally here.’”
D. The Department Files a Pre-detention Report About
Jonathan and Isayuh
On February 10, 2021 the juvenile court asked the
Department to file a pre-detention report explaining why
7
Jonathan and Isayuh were in Runa’s care.5 The report stated the
following:
A social worker for the Department spoke to Runa, who
stated that the San Bernardino County Superior Court granted
her custody of Jonathan and Isayuh, but that she never received
a copy of the order. The social worker also spoke to Jonathan and
Isayuh’s father, who said that he had not seen the children in
three years, but that he believed he had joint custody of them.
He also stated Runa was supposed to return Jonathan and
Isayuh to his care in August 2017, but never did. He said Runa
would leave the state and go to shelters so that he could not find
them.
After speaking to Jonathan and Isayuh’s father, the social
worker spoke again to Runa. Runa insisted “‘Judge Zeidler and
[the Department]’” knew Jonathan and Isayuh had lived with her
for the past few years. Runa said she planned to move out of
California because she was “‘tired of dealing with’” the
Department.
Runa also told the social worker the children were enrolled
in a homeschool program and met with a teacher every month.
But when the social worker asked for the phone number or email
address of the teacher, Runa did not provide it. The social
worker asked Runa to sign release forms to enable the
Department to verify school enrollment and medical information
for Jonathan and Isayuh, but Runa refused.
5 The juvenile court previously transferred the proceeding
concerning Jonathan and Isayuh to the San Bernardino County
Superior Court after the two children “reunified with their
father.”
8
The social worker spoke with Isayuh, but Runa only
allowed the social worker to speak with him when Runa was
present. When the social worker asked Isayuh about their prior
living conditions, Runa stated, “‘Don’t ask him about that.’”
When the social worker asked him the name of his school and his
teacher, Isayuh responded, “‘I don’t know,’” and said his school
was online.
The social worker also interviewed Julian. Julian did not
know what school he attended, what school he had attended
previously, or the name of his teacher. He said he had been
attending the school for a month.
On February 18, 2021 Runa took a drug test. She tested
negative for all substances.
E. The Court Denies the Section 388 Petition
On March 1, 2021 the juvenile court held a hearing under
section 388 and denied the petition to terminate the
guardianship. The court ruled that Runa did not “show sufficient
change in circumstances or sufficient new information” and that
terminating the guardianship would not be in Julian’s best
interests. Runa timely appealed.
DISCUSSION
A. Applicable Law and Standard of Review
Section 388, subdivision (a)(1), 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 . . .
9
for a hearing to change, modify, or set aside any order of court
previously made or to terminate the jurisdiction of the court.” To
prevail on a section 388 petition, the petitioner must show “‘“by a
preponderance of the evidence (1) that there is new evidence or a
change of circumstances and (2) that the proposed modification
would be in the best interests of the child.”’” (In re Malick T.
(2022) 73 Cal.App.5th 1109, 1122; see In re Stephanie M. (1994)
7 Cal.4th 295, 317; In re J.M. (2020) 50 Cal.App.5th 833, 845.)
Because Runa had the burden to demonstrate new evidence
or a change of circumstance, we review the juvenile court’s
finding that Runa failed to meet her burden by determining
whether the evidence compels a finding in her favor on that issue
as a matter of law. (See In re N.O. (2019) 31 Cal.App.5th 899,
925-926; In re Aurora P. (2015) 241 Cal.App.4th 1142, 1161,
1163.) Specifically, we determine whether “the evidence ‘was
(1) “uncontradicted and unimpeached” and (2) “of such a
character and weight as to leave no room for a judicial
determination that it was insufficient to support a finding.’””
(In re Luis H. (2017) 14 Cal.App.5th 1223, 1227; see In re I.W.
(2009) 180 Cal.App.4th 1517, 1528, disapproved on another
ground in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1003,
fn. 4.)
We review for abuse of discretion the juvenile court’s ruling
the proposed modification—here, terminating the guardianship—
was not in the best interest of the child. (See In re Stephanie M.,
supra, 7 Cal.4th at p. 318; In re Malick T., supra, 73 Cal.App.5th
at p. 1123; In re N.F. (2021) 68 Cal.App.5th 112, 120.) “‘“The
appropriate test for abuse of discretion is whether the trial court
exceeded the bounds of reason. When two or more inferences can
reasonably be deduced from the facts, the reviewing court has no
10
authority to substitute its decision for that of the trial court.”’”
(In re Stephanie M., at pp. 318-319; see In re I.B. (2020)
53 Cal.App.5th 133, 153.)
B. The Juvenile Court Did Not Err in Ruling There Were
No Changed Circumstances
“‘Not every change in circumstance can justify modification
of a prior order’” under section 388. (In re N.F., supra,
68 Cal.App.5th at p. 120; see In re A.A. (2012) 203 Cal.App.4th
597, 612.) “‘“[T]he change in circumstances must be
substantial.”’” (In re Malick T., supra, 73 Cal.App.5th at p. 1122;
see In re I.B., supra, 53 Cal.App.5th at p. 152; In re J.M., supra,
50 Cal.App.5th at p. 845.) And where, as here, the juvenile court
has terminated a parent’s reunification services, a substantial
change means “the problem that initially brought the child
within the dependency system [has been] removed or
ameliorated.” (In re A.A., at p. 612; see In re J.M., at p. 846
[a “parent establishes a substantial change of circumstances for
purposes of section 388 by showing that . . . he or she has
resolved the previously unresolved issues supporting juvenile
court jurisdiction”].)
Runa argues her completion of parenting classes,
completion of the alcohol-and-drug treatment program, clean
drug test, employment and housing situation, and ability to care
for her children “collectively demonstrate the relevant and
material change that section 388 requires.” But Runa did not
submit uncontradicted and unimpeached evidence requiring the
juvenile court to find a substantial change in circumstances that
removed or ameliorated the problems that brought Julian within
the jurisdiction of the court. There were (at least) two problems
11
that brought Julian under the court’s jurisdiction: Runa’s
substance abuse and her cruelty toward her children.6
Runa showed some progress toward ameliorating the first
problem. She completed a 12-week drug-and-alcohol treatment
program in 2018 and a four-hour, introductory drug-and-alcohol
course after she filed her petition. And she tested negative for
controlled substances once, immediately before the hearing on
her petition. But “in the context of a substance abuse problem
that has repeatedly resisted treatment in the past, a showing of
materially changed circumstances requires more than a
relatively brief period of sobriety or participation in yet another
program.” (In re N.F., supra, 68 Cal.App.5th at p. 121.) Runa’s
efforts were a good start, but they fell far short of unimpeached
and uncontradicted evidence of a substantial change in
circumstances. (See In re Ernesto R. (2014) 230 Cal.App.4th 219,
223 [“Appellant’s completion of a drug treatment program, at this
late a date, though commendable, is not a substantial change of
circumstances.”]; In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081
[court did not err in denying a section 388 petition where the
parents’ “recent efforts at rehabilitation were only three months
old”]; In re Angel B. (2002) 97 Cal.App.4th 454, 463 [court did not
err in denying a section 388 petition where, although the mother
“had completed [a] drug program, the time she had been sober
6 As stated, the juvenile court sustained the allegation Runa
was arrested for being under the influence of a controlled
substance and for willful cruelty of a child. The juvenile court
also found true the allegation Runa had an outstanding bench
warrant, but the Department did not discover any criminal
charges filed against Runa since 2011.
12
was very brief compared to her many years of drug addiction”];
In re Cliffton B. (2000) 81 Cal.App.4th 415, 423 [“seven months of
sobriety” were insufficient for a father to meet his burden under
section 388, where he had a long history of drug abuse].)
Moreover, there was evidence Runa had recently used
drugs. (See In re N.F., supra, 68 Cal.App.5th at p. 122 [mother
failed to show a substantial change in circumstances where there
was “conflicting evidence about her sobriety” and a “brief period
of sobriety and completion of a treatment program was only the
most recent attempt in a series of unsuccessful attempts to
overcome her substance abuse”].) In January 2020—less than a
year before Runa filed her petition under section 388—the
Department received a referral stating that Runa used drugs and
had track marks on her legs and thighs. In 2018 the
Department, while investigating whether Runa had submitted
documents to the court falsely stating she had complied with
drug testing requirements, asked Runa to take a drug test, and
she refused.
Even Runa’s completion of the 2018 treatment program
provided little (if any) evidence Runa was not abusing substances
during that period. A representative of the program told the
Department the course Runa completed was “entirely online,
with reading, video and homework assignments, but no one on
one.”
In addition, Runa did not show she had insight into, or had
taken any responsibility for, why Julian was no longer in her
care. (Cf. In re Jaden E. (2014) 229 Cal.App.4th 1277, 1289
[order terminating reunification services for the mother was not
an abuse of discretion where the mother “continued to obstinately
and belligerently maintain that she did not require any services
13
to reunify with the minor; and remained completely oblivious to
the significantly detrimental impact that her actions were having
on her son”].) Rather than attempt to show she had stopped
using drugs for any considerable length of time, Runa gave the
Department investigator a drug test purportedly from 2011,
which the investigator did not believe was authentic. Runa
stated the nearly 10-year-old negative test “should be the solution
to this whole thing,” believed the Department’s case “should have
been closed,” and blamed law enforcement (rather than herself)
for the fact that Julian was not in her care. (See In re Casey D.
(1999) 70 Cal.App.4th 38, 49 [no change of circumstances where
the mother had a “pattern of maintaining drug treatment only
when motivated by the desire to reunify the family and required
by outside agencies”], disapproved on another ground in In re
Caden C. (2021) 11 Cal.5th 614, 636, fn. 5.)
Nor did Runa provide compelling and uncontradicted
evidence she had ameliorated or resolved the second reason the
court sustained the Department’s section 300 petition—Runa’s
cruelty to her children. On the one hand, Runa completed a
parenting course in November 2016, and Julian and Isayuh
denied Runa abused them. And the investigator who interviewed
Julian did not see any marks or bruises on him. On the other
hand, Julian said in December 2016—only one month after Runa
completed the parenting course—that Runa gave him beer and
cigarettes and that she had hit him and his brothers during the
incident where she took him to Chicago. And Runa failed to
present any evidence that she had received individual counseling,
which could have reduced the likelihood of abuse.
14
C. The Juvenile Court Did Not Abuse Its Discretion in
Ruling That Terminating the Guardianship Was Not
in Julian’s Best Interests
Runa does not address the juvenile court’s ruling it was not
in Julian’s best interests to terminate the guardianship. For this
reason alone, she has failed to show the court erred in denying
her petition. (See In re J.F. (2019) 39 Cal.App.5th 70, 79 [“The
juvenile court’s orders are ‘presumed to be correct, and it is
appellant’s burden to affirmatively show error.’”]; In re
Priscilla D. (2015) 234 Cal.App.4th 1207, 1218 [under section 388
“the parent bears the burden of proving the change serves the
child’s best interest”].)
But even if Runa had addressed the issue, the juvenile
court did not abuse its discretion. “[B]est interests is a complex
idea” that requires the court to consider a variety of factors.
(In re Kimberly F. (1997) 56 Cal.App.4th 519, 530; see Jennifer S.
v. Superior Court (2017) 15 Cal.App.5th 1113, 1124 [“‘“The
concept of a child’s best interest ‘is an elusive guideline that
belies rigid definition.’”’”].) “When, as in this case, a section 388
petition is filed after family reunification services have been
terminated, the juvenile court’s overriding concern is the child’s
best interests. [Citation.] The parent’s interests in the care,
custody and companionship of the child are no longer paramount;
and the focus shifts to the needs of the child for permanency and
stability.” (In re Malick T., supra, 73 Cal.App.5th at
pp. 1122-1123; see In re Stephanie M., supra, 7 Cal.4th at p. 317;
In re J.M., supra, 50 Cal.App.5th at p. 847.)
In her petition Runa asserted three reasons why
terminating the guardianship was in Julian’s best interests:
Julian was doing well in a homeschool program while in Runa’s
15
care; Julian was not enrolled in school when he lived with his
grandmother; and Julian’s father would be released from prison
soon. None of these reasons holds up. The evidence Julian was
in a homeschool program while he was in Runa’s care, or even
that he was in Runa’s care for any appreciable period of time, was
highly suspect. According to Julian, Julian’s grandmother, and
Issa, who resided in the grandmother’s house, Julian lived with
his grandmother, not Runa. The grandmother told a Department
investigator which school Julian attended, and an administrator
from the school confirmed Julian was enrolled there. The
registrar and an education specialist from another school
informed the investigator that Julian was briefly enrolled at their
school from October 23, 2020 to November 4, 2020 (around the
same time, according to the grandmother, Runa took Julian), but
that Julian did not attend classes.7
Runa also failed to provide evidence confirming Jonathan
and Isayuh were in a homeschool program, further undermining
any claim by Runa that Julian would do well in a homeschool
program in her care. Runa refused to sign forms to enable the
Department to verify whether Jonathan and Isayuh were
enrolled. She did not give the social worker the phone number or
email address of the teacher she claimed Jonathan and Isayuh
met with monthly. And, when asked by a Department social
worker, (15-year-old) Isayuh could not name his school or one of
his teachers.
Runa’s other contention—that Julian’s father would soon
be released from prison—was similarly not a reason to terminate
7 The school disenrolled Julian when it learned the
grandmother was his legal guardian.
16
the guardianship. Runa did not submit any evidence Julian’s
father was able or available to care for him. And the Department
filed a declaration of due diligence stating it could not “ascertain
the whereabouts” of Julian’s father.
Moreover, putting aside the conflicting evidence of Runa’s
recent drug use and prior abuse of her children, the Department
provided evidence that terminating the guardianship would not
further Julian’s interest in a permanent and stable living
arrangement. Julian had been in his grandmother’s care for the
past nine years, except for, at most, the few weeks Runa took
him. In contrast, Runa’s living situation was turbulent.
Although she told the Department she had been living at a hotel
for only a few months, she did not appear to live in the
permanent home she claimed she lived in, and the Department
received a referral earlier in 2020 stating that Runa slept in her
car. And Runa interrupted when the case social worker
attempted to ask Isayuh about his prior living situation with
Runa.
Finally, Runa’s future intentions were uncertain. She had
previously taken Julian and her other children out of the state,
and she told the Department social worker she wanted to move
again because she was “tired of dealing with [the Department].”
True, Julian said he wanted to live with Runa and his brothers.
But the court did not abuse its discretion in ruling that
terminating the guardianship would not promote the permanency
and stability Julian needed. (See In re C.J.W., supra,
157 Cal.App.4th at p. 1081 [even assuming the parents had
successfully completed drug rehabilitation, “there was no
showing whatsoever of how the best interests of [their] young
17
children would be served by depriving them of a permanent,
stable home in exchange for an uncertain future”].)
DISPOSITION
The order denying Runa’s petition under section 388 is
affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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