In re L.L. CA1/2

Filed 10/22/13 In re L.L. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION TWO
In re L.L., a Person Coming Under the
Juvenile Court Law.
CONTRA COSTA COUNTY CHILDREN
& FAMILY SERVICES BUREAU,
Plaintiff and Respondent,
A137943
v.
E.L., (Contra Costa County
Super. Ct. No. J10-01107)
Defendant and Appellant.
I. INTRODUCTION
E.L. (Mother) appeals from the juvenile court’s order denying her Welfare and
Institutions Code section 3881 petition and order terminating her parental rights following
a hearing pursuant to section 366.26. She argues that the trial court erred in denying her
section 388 petition. We disagree and affirm both orders.
II. FACTUAL AND PROCEDURAL BACKGROUND
We previously heard and denied Mother’s writ petition challenging the court’s
order setting this matter for a section 366.26 hearing. (In re L.L. (Dec. 13, 2012,
A136184) [nonpub. opn.].) The following recitation of the facts in this matter prior to
that decision is taken from our earlier opinion.
1
All further statutory references are to the Welfare and Institutions Code unless
otherwise noted.
1
L.L. first came to the attention of the Contra Costa County Children and Family
Services Bureau (Bureau), on August 7, 2010, after Mother took her to the emergency
room with the unfounded belief that L.L. had been molested. At the time, L.L. was four
months old. Two days later, the Bureau interviewed Mother, as well as Mother’s brother-
in-law, sister, and grandfather. The Bureau discovered a serious history of mental illness
and substance abuse by Mother, and L.L. was removed from Mother’s custody.
In its detention/jurisdictional report filed October 20, 2010, the Bureau noted that
Mother suffered from mental illness including bipolar disorder and schizophrenia and had
stopped going to counseling and taking her medications. An interview with Mother‟s
sister revealed that Mother might also have a problem with alcohol abuse.
In a disposition report dated November 16, 2010, the Bureau noted that Mother
was receiving supervised visits of one hour a week with L.L. The Bureau provided bus
tickets to Mother, referrals to parenting classes, a drug testing program, and referrals for
therapy at a local clinic. The Bureau expressed concern that Mother continued to find
non-existent physical ailments with L.L. at every visit, behavior which was consistent
with Mother‟s mental illness. The Bureau recommended continued placement of L.L.
with a foster family and supervised visits for Mother.
On December 7, 2010, the Bureau requested that Mother‟s visitation be decreased
to two hourly monthly visits. The Bureau noted that, in the previous two visits, Mother
had outbursts and was hostile towards county workers and that her behavior distressed
L.L. In an order dated December 7, 2010, the court admonished Mother “not to make
any verbal abusive comments or . . . any further hostile comments or gestures,” toward
county workers during these visits.
On December 29, 2010, the Bureau informed the court that Mother had been asked
to leave the “Love a Child” shelter where she had previously been residing after she got
into a domestic violence dispute with another resident. Mother also admitted to being
aggressive towards L.L.‟s alleged Father, C.T.
A dispositional hearing was held on January 11, 2011. At that time, the court
ordered L.L. a dependent child, found that reasonable efforts had been made to prevent
2
the need for L.L.‟s removal from the home, that removal from the home would not create
a substantial risk to L.L.‟s well being and also found clear and convincing evidence that
there was substantial danger to L.L. if she was returned home, and there were no
reasonable means to protect L.L. without removal of physical custody from Mother. The
court ordered supervised visitation of one hour, two times a month. A reunification plan
was adopted. The court informed Mother that if she was unable to resume custody of
L.L. within six months, then a permanent plan, including termination of her parental
rights, could be made. Mother did not appeal this order.
The Bureau filed a status review report for the six-month review hearing on
August 15, 2011. The Bureau reported that Mother was living with her sister. Mother
continued to suffer from paranoia and was not taking all of her medications. Mother,
however, contended that she had been taking her medications as prescribed. Mother had
seen L.L. on all her scheduled days except for one on June 8, 2011. Mother had been
offered numerous services, including: bus tickets, supervised visits with L.L., referrals to
parenting classes, referrals to Pittsburg Mental Health Clinic, and referrals for random
drug testing. Mother was visiting L.L. twice a month and believed she had complied with
all the requirements of the court. However, the Bureau was still concerned with Mother‟s
mental health. Mother continued to see nonexistent ailments in L.L. when she visited
her. In addition, Mother‟s sister had reservations about Mother‟s ability to care for L.L.
The Bureau reported that Mother‟s lack of compliance with her prescribed medication
regime and living situation made her unable to care for L.L. Mother had also not
completed her parenting classes and her interactions with L.L. were not age appropriate.
The Bureau requested that Mother‟s visitation be decreased to one hour once a month and
that a section 366.26 hearing date be set.
In an order filed September 1, 2011, the court found that returning L.L. to her
Mother would present a substantial risk to her health and safety and ordered additional
services to be given to Mother, including a “Nurturing Parenting Program” and referrals
to therapy. Mother was specifically ordered to attend individual therapy, to secure
treatment for her mental health illnesses, and to continue her participation in the bipolar
3
support group at Contra Costa Mental Health. The court found that Mother participated
in the case plan, and regularly contacted and visited L.L., and that if services were
extended until October 7, 2011, there was a likely probability that L.L. would be returned
to Mother. Visitation was kept at two hourly monthly visits. The court also found that
the Bureau had provided reasonable services, a finding Mother did not challenge. Mother
was informed that if she was unable to resume custody of L.L. by October 7, 2011, the
court could make permanent plans for L.L. A 12-month hearing was set for September
26, 2011.
A status report was prepared for the September 26, 2011 hearing.2 The Bureau
reported that L.L. showed stress when leaving her foster parents to see Mother, and that
continued placement with the foster family was in L.L.‟s best interest. Additionally, L.L.
had started to hide when the social worker picked her up to see Mother. Even though
Mother could have started individual therapy as early as February 14, 2011, she did not
start until September 19, 2011. Because she was noncompliant with her oral medications,
Mother was prescribed bi-monthly injections, which she did not begin until August 16,
2011. Mother continued to see nonexistent physical ailments in L.L. and exhibited
paranoid behavior during her visits with L.L. Mother‟s sister had reservations about
Mother‟s ability to care for L.L. and stated that Mother spent all day at home sleeping
and did not help out around the house. However, after being informed that L.L. might be
permanently taken away, she changed her statement and told the Bureau that Mother was
fine and could care for L.L. Mother‟s mental health physician noted that Mother was
following up with her appointments because she wanted to regain custody of L.L. and not
because she believed she could benefit from mental health treatment. Additionally,
Mother‟s attendance at her bipolar support group was inconsistent. Mother was
completely reliant on her sister for money and a place to live and yet had alienated her
sister and the rest of Mother‟s family. Additionally, Mother had not made her mental
2
Due to continued continuances the hearing was not held and a combined 12- and
18-month hearing was held on April 23, 2012.
4
health a priority. Throughout Mother‟s supervised visits with L.L., the case workers
observed “delusional behavior, lability, and thought derailment.” On two occasions, a
public service officer had to remove Mother from the building where the visits took
place.
Services provided to Mother included transportation of L.L. to Mother‟s parenting
class, bus tickets for Mother, supervised visits, face to face interviews with Mother,
referrals for individual therapy, referrals for random drug testing, and referrals to the
Pittsburg Mental Health Clinic.
The Bureau recommended that reunification services be terminated, that the court
determine reasonable services have been provided and that the matter be set for a section
366.26 hearing.
The Bureau filed a status report for the combined 12- and 18-month hearing on
April 16, 2012, and the combined 12- and 18-month review was conducted on April 23,
2012.3 In its report, the Bureau noted that Mother had started individual therapy and
continued to receive bi-weekly injections of Risperdal to control her mental health
illness. However, the Bureau remained concerned about Mother‟s financial inability to
provide independent care for L.L. as well as her inability as a parent to respond to L.L.‟s
social cues. During her visits with L.L., Mother was still not completely engaged with
L.L. and did not speak to her in an age appropriate fashion. The report also indicated that
L.L. became fretful when she was taken on her visits to Mother. In a recent visit, Mother
turned on a toy dinosaur that appeared to scare L.L. into running away and hiding in the
social worker‟s lap. Mother repeated the action after L.L. calmed down and again scared
the child. Mother became angry when the social worker admonished her.
At the April 23, 2012, hearing, Mother‟s counsel introduced evidence that Mother
had successfully completed the Nurturing Parenting Program and received a positive
letter of recommendation from the Child Development Coordinator, Toni Robertson.
3
The hearing was conducted over the course of several months. In addition to the
April 23, 2012, hearing, hearings were conducted on May 3, 2012, June 5, 2012, and July
16, 2012. All hearings will be collectively referred to as the “April 23, 2012 hearing.”
5
Robertson‟s letter reported that she never observed Mother acting inappropriately with
L.L. Mother‟s caseworker confirmed that Mother had started attending individual
therapy on September 19, 2011, and was regularly attending therapy, but had missed 10
sessions between September 19, 2011, and April 24, 2012. The caseworker also testified
that she received reports that Mother missed some of her injections in January and March
2012 and Mother admitted to missing approximately one, of her required two, injections
per month.
The caseworker testified that Mother had made some progress in terms of
parenting L.L., through working with Denah Hanson at Alternative Family Services. She
also testified that based upon the positive recommendations Mother had received, Mother
had made progress in the last six months towards controlling her mental health issues
although no mental health professional had had the opinion that it would be safe to return
L.L. to Mother. Neither had any of the mental health providers suggested giving Mother
unsupervised visits with L.L.
On June 20, 2012, after testimony was concluded but before closing arguments
commenced, Mother‟s counsel asked the court, “Is there any possibility of mom getting
some expansive visits at the aunt‟s house?” The court responded, “I don‟t think so. I
don‟t think so. Okay, whatever visitation scenario it is now, let‟s continue it.” Counsel
responded, “All right.”
Closing arguments were held on July 16, 2012. The court expressed concern with
the fact that “no mental health professional would render an opinion the child would be
safe if returned to her mother.” With regard to Mother‟s compliance with her case plan,
the court noted that “mother did her best to complete that plan. I don‟t, for a moment,
question her commitment and her concern, albeit very late in the process, because that‟s
exactly what it is. It‟s late in the process.” The court found that there was not a
substantial probability that the minor would be returned to Mother and that it was in
L.L.‟s best interest that the matter be set for a section 366.26 hearing.
Mother filed a petition challenging this order on September 7, 2012. On
December 13, 2012, we denied her petition.
6
On December 10, 2012, Mother filed a section 388 petition. In it, she alleged that
she had “continued to improve her stability and has maintained her mental health
treatment despite the courts [sic] termination of her services.” Mother asked the court to
set aside its order setting a section 366.26 hearing and asked the court to resume
reunification services and increase visitation with the goal of “ultimate transition of the
child back to mother‟s care.” Mother argued that “[t]he child was removed because the
mother‟s unstable mental health situation placed the child at risk. Mother has maintained
her stability and is no longer a risk to the child. The child has a right to be raised within
her birth family. Returning the child to a stable parent accomplishes that goal and
achieves the stated purpose of the Child Welfare system—to preserve families.”
Mother attached to her petition three documents: a letter dated October 31, 2012,
from Mary LaGue, the clinical supervisor and outpatient program manager for Portia Bell
Hume Behavioral Health and Training Center. In her letter, LaGue stated that Mother
had attended weekly outpatient individual psychotherapy since September 19, 2011, for a
total of 34 sessions. In a “Transfer Summary” dated October 12, 2012, and necessitated
by the fact that Mother‟s current psychotherapist was leaving and Mother was
transitioning to a new therapist, Mother‟s therapist stated that Mother “has achieved
greater strength in her ability for emotional regulation and impulse control when
overwhelming emotional episodes arise. She has also increased her ability to apply
learned coping mechanisms as necessary. [Mother] continues to work on increasing self-
esteem and self-worth, as well as development of her sense of self and identity. After
losing her daughter, she has been working to find „purpose‟ in her life and implement
new activities and goals for her future to take the place of her original hopes to take care
of her daughter. [Mother] is continuing to learn her values and beliefs and learning to
stay true to them despite outside influences. In addition, she is grieving losses in her life,
and attempting to adjust to the possible idea that she may not regain custody of her
daughter, but is still engaged in court appeal to possibly get her back.” Mother was
described as “cooperative” and as presenting no potential “dangerousness.”
7
Mother also attached a letter dated November 16, 2012, from a staff psychiatrist at
Contra Costa Health Services. The letter stated that Mother “is currently maintained on
her recommended treatment plan. In last few months her symptoms have improved
significantly, she is responding very well to her medications, as evidenced by her stable
mood, improved social interaction and alleviated psychiatric symptoms. [¶] [Mother‟s]
insight pertaining to her mental illness and treatment plan has improved remarkably,
compared to last year. At this time she is very committed to maintain on her medication
regimen and following up regularly, with both medication and group therapy.” A
November 1, 2012, letter certified that Mother had been attending a bipolar support group
since December 2010. Mother‟s attendance was consistent and she was an active
participant.
The court set a hearing on Mother's section 388 request for January 28, 2013.
In a report dated January 23, 2013, the Bureau informed the court that it did not
support Mother‟s request for additional services or increased visitation. The Bureau
noted that L.L. was then two years and nine months old and had been detained for two
years and five months of her life. L.L. continued to live in the foster home where she had
been placed nearly two years earlier with caregivers who wished to adopt her.
The Bureau described the relationship between L.L. and Mother as “not
significant.” L.L. did not identify Mother as “mommy” but rather referred to her by her
first name. Instead, L.L. calls her foster mother “mommy.” During supervised visits,
Mother “was able to interact appropriately” with L.L. “However, [L.L.] is more excited
to see this worker at each visit than her mother. [L.L.] sets very clear boundaries with her
mother and refutes any statements made that [appellant] is her mother.”
With regard to Mother‟s mental health treatment, the Bureau noted that although
Mother had been in treatment for over a year or more, she “has only shown improvement
in the last few months. Mother has an extensive history of mental health instability and
continues to be reliant upon her sister for housing and financial support.” Although it
acknowledged Mother's progress, the Bureau expressed the view that Mother cannot
“take care of herself without the assistance of others.” The Bureau based this conclusion
8
on the fact that Mother continued to be “reliant upon her sister for housing and financial
support.”
The hearing on Mother‟s request was held on January 31 and February 5, 2013.
Mother testified that she had been in individual psychotherapy for more than a year. She
had been diagnosed as bipolar and attended counseling for that illness. She also saw two
other doctors, was involved in group therapy, took psychotropic medication and had a
doctor monitoring that medication.
Therapy was helpful to Mother and she planned to continue in therapy “for my
well-being sake.” She was insured and so was able to continue financially. Mother also
testified that she had been diagnosed with “really bad depression . . . .” She was able to
overcome this depression by “[s]taying occupied . . . feeling needed.”
Mother was taking a number of psychotropic medications. One of these medicines
required a monthly injection, the other two came in pill form. Mother had been taking
the medications regularly and found them helpful. She had no plans to stop taking them
until a doctor advised her to. She saw a doctor every six to eight weeks to monitor the
medication.
Mother attended a bipolar support group biweekly. She missed one session
because it fell on her first day of a new job and three other sessions because she was
unable to get transportation. However, Mother now had a car so she believed it would be
easier to get to the sessions. She found the support group helpful and she planned to
continue to attend. Mother had also found a job at Round Table Pizza and had been
employed there for three weeks.
Mother disagreed with the Department‟s assertion that she could not take care of
herself. She recently had found employment, made her own medical appointments, paid
rent to her sister, was responsible for cleaning up the house she lived in with her sister.
She also took her 15-year-old niece to school. Her sister had never given her “anything”
and she did not rely on her for money.
9
Mother described herself as “not exactly where I want to be. I want to be in
school and . . . I would like to have my own apartment.” She was working toward having
the money to move into her own place by working 30 hours a week.
Mother acknowledged that she would have to continue dealing with and
monitoring her mental health and was prepared to do so. In counseling, she had learned
to better identify her emotions and explain her feelings rather than acting out, as she used
to do. She acknowledged that she had in the past had a problem sometimes controlling
her emotions, but she had not had any issues in the last six to eight months. She
attributed this improvement to extensive therapy.
In her visits with L.L., Mother would bring cheerios, and they would play games
and with toys. L.L. appeared to enjoy these activities. Mother described L.L. as “very
mature” and said she was “never upset about leaving” at the end of the visit. “She‟s the
same coming in as going out.”
Mother believed L.L. would benefit from an ongoing relationship with her because
Mother was stable enough to be a presence in L.L.‟s life, even if infrequently. Seeing
L.L. would also benefit Mother “greatly.” When asked whether Mother felt that L.L.
loved her, she replied “I think that she‟s not conscious of the situation that we‟re going
through right now. And, um, she does favor the people who are in her life most. I think
that she‟s only comfortable with me like in a play setting and stuff. She‟s never spent—
she‟s never even gone out to eat with me. We‟ve never been to the park, nothing.”
Mother testified that in the time that had elapsed since the review contest on July
16, she felt that “when it comes to stress and depressions and things like that I think that I
can take more stress now. I feel like I have a stronger pain threshold. I feel my skin‟s a
little thicker. I understand situations a little more in-depth than the way I did when all of
this had began, so I‟m—I feel stronger today even though I‟ve been through a lot and
everything is not exactly how I wish it would be . . . .”
Mother stated that she began taking medication for her mental health issues in
February 2011, about six months after L.L. was detained. Before that she believed she
was well enough to do without medication. Her doctor told her it was okay to decline to
10
take the medicine. When she first began taking medication she did so intermittently. In
April or May, she began to take the medicine she‟d been prescribed consistently.
Mother‟s sister testified that Mother had been living with her for a little over two
years. She no longer provided Mother with all of her housing and financial support. She
believed Mother was “doing a lot better with her issues that she had before since she
moved into the house with me and . . . she‟s a lot more responsible. She pays rent with
me. She pays bills. She just got a good job a couple weeks ago. She‟s been doing very
good with that, with getting up and going to work. She‟s very helpful around the house.
She takes care of her own bills.” Mother had a driver‟s license and had bought a car and
drove herself everywhere she needed to go. Mother‟s sister did not make Mother‟s
appointments, monitor whether she went to her appointments and, in general, had seen no
negative change in Mother‟s mental health since the last court hearing in July. Mother
did not appear unstable, had no outbursts and had done nothing that would cause her any
concern should Mother be taking care of a small child.
After hearing argument, the court denied Mother‟s motion, finding that she had
not met her burden of showing a change in circumstances or her burden to show that
granting the motion would be in L.L.‟s best interests. The court held that Mother had not
met her burden of proof. Mother had shown “changing circumstances” in her mental
health treatment from the time of the court‟s last order six months earlier. The court also
held that between the previous hearing and the present hearing, there had been no
showing that circumstances had changed so that it would now be to L.L.‟s benefit to
postpone permanency planning to grant Mother additional services with the goal of
returning L.L. to Mother. The court then made the required findings pursuant to section
366.26, terminated parental rights and set the matter for a permanency planning hearing.
Mother timely appealed from the court‟s section 388 and 366.26 orders.
III. DISCUSSION
Mother argues that the trial court abused its discretion in denying her section 388
petition. We disagree.
11
Section 388 provides a means for the court to consider a legitimate change of
circumstances, even at the permanency planning stage, that may justify a change to a
prior order. (In re Marilyn H. (1993) 5 Cal. 4th 295, 309.) It permits “[a]ny parent or
other person having an interest in a child who is a dependent child of the juvenile
court . . . [to], upon grounds of change of circumstances or new evidence, petition the
court . . . for a hearing to change, modify, or set aside any order of court previously
made . . . .” (§ 388, subd. (a)(1).) Section 388 allows the juvenile court to modify an
order if a party establishes, by a preponderance of the evidence, that changed
circumstances or new evidence exists and the proposed change would promote the child‟s
best interest. (In re Zachary G. (1999) 77 Cal. App. 4th 799, 806.)
The burden of proof is on the party bringing the petition to show both the
existence of a genuine change in circumstances and that the proposed change is in the
best interests of the child. (In re Stephanie M. (1994) 7 Cal. 4th 295, 317; In re Kimberly
F. (1997) 56 Cal. App. 4th 519, 529; § 388, subd. (b).)
Whether a prior order should be modified rests within the discretion of the
juvenile court and its determination will not be disturbed on appeal absent a clear abuse
of discretion. (In re Stephanie M., supra, 7 Cal.4th at p. 318; In re Kimberly F., supra,
56 Cal.App.4th at p. 522.) On review, we ask whether the juvenile court‟s order
“ „exceeded the bounds of reason.‟ ” Further, “ „when two or more inferences may
reasonably be deduced from the facts, the reviewing court has no authority to substitute
its decision for that of the trial court.‟ ” (In re Stephanie M., supra, 7 Cal. 4th 295, 318-
319.)
Six months before Mother filed her petition, she was just beginning to address her
mental health issues. Her visits with L.L. were difficult and L.L. was anxious about
them. The juvenile court based its July 16, 2012 order on the fact that because of issues
with Mother‟s mental health problems and her relationship with L.L., it was appropriate
to terminate reunification services and set the matter for a section 366.26 hearing. In the
months that followed, Mother worked diligently and successfully to stabilize her
challenging mental health situation. She also continued to visit L.L. Although evidence
12
of Mother‟s efforts to address her mental health issues might constitute a change in
circumstances, the record evidences no similar change in Mother‟s relationship with L.L.
Instead, L.L. now set clear boundaries with Mother during their visits, and did not
identify Mother as her mother. As Mother herself candidly observed, “she does favor the
people who are in her life most. I think that she‟s only comfortable with me like in a play
setting and stuff.”
Not only did Mother failure to meet her burden of proof that her relationship with
L.L. had significantly changed, but the fact that it had not supports the court‟s conclusion
that granting this motion would not be in L.L.‟s best interests. At this point in the
process, “After the termination of reunification services, [Mother‟s] interest in the care,
custody and companionship of [L.L.] is no longer paramount. (In re Stephanie M., supra,
7 Cal.4th at p. 317.) Rather, at this point, the focus shifts to the needs of the child for
permanency and stability. (In re Marilyn H. [, supra,] 5 Cal.4th [at p.] 309.)” (In re
Angel B. (2002) 97 Cal. App. 4th 454, 464.) Given that the bond between Mother and L.L.
was a weak one, the court did not abuse its discretion in concluding that granting the
section 388 motion and further delaying L.L.‟s achievement of permanency and stability
was not in her best interests.
IV. DISPOSITION
The orders appealed from are affirmed.
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_________________________
Haerle, Acting P.J.
We concur:
_________________________
Richman, J.
_________________________
Brick, J.*
* Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
14