IN RE Q.N.

No. A150200.

In re Q.N., a Person Coming Under the Juvenile Court Law. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. C.M., Defendant and Appellant.

Court of Appeals of California, First District, Division Five.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.115

SIMONS, J.

Appellant C.M. (Mother) appeals the juvenile court's summary denial of her Welfare and Institutions Code section 388 petition seeking to set aside an order terminating visitation with her son, Q.N. (Minor).1 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In July 2012, the San Francisco Human Services Agency (the Agency) filed a section 300 petition after Mother left Minor (born 2005) unattended in front of the home of his paternal grandparents, whom he had not seen in five years, without notifying them. Minor told Agency social workers that Mother had pushed him on the ground and down stairs, thrown hot water on him, whipped him with a leather belt, and stabbed his stomach. Minor's father (Father) told the Agency Mother had a history of being aggressive and violent with him and others, and had denied him access to Minor after their divorce in 2007. Father told the Agency he was a college student and not in a position to currently care for Minor, but after two years, when he had finished school and had the opportunity to get a good job, he could take care of Minor.

The juvenile court sustained a number of allegations, including that Mother has undiagnosed mental health issues; had a domestic violence relationship with Father, including an incident where Mother stabbed Father; and has used inappropriate forms of physical discipline with Minor. At disposition, the juvenile court declared Minor a dependent of the court and ordered reunification services to Mother, including a psychological evaluation, individual counseling, a parenting education program, and visitation.2

Minor's first foster placement was terminated in July 2012 after Minor exhibited aggressive sexualized behavior toward another child. In September 2012, Minor was placed with a maternal cousin. During this placement, he did fairly well at home but was suspended from school multiple times for inappropriate behavior, including physical aggression, sexualized behavior toward peers, and destroying a school toilet with a pipe. In January 2013, Minor was assessed with Disruptive Behavior Disorder that included repeated noncompliance, defiance, impulsivity, stealing, property destruction, physical aggression to animals, and sexually reactive behavior.

Mother was attending therapeutic visits with Minor until October 2012, when Mother became angry with the therapist and fired her. Mother failed to attend sessions scheduled with a new therapist. Mother was also attending visits supervised by a third-party organization, but was often verbally aggressive and hostile with the staff supervising these visits. During a December 2012 supervised visit, Mother insulted and threatened the supervising staff member and, when Minor asked to end the visit early because of Mother's anger, Mother yelled at Minor. Mother refused to work with the supervising staff member but no other staff were available to accommodate Mother's schedule, so visits supervised by this organization ceased.

The Agency tried to arrange a visit in April 2013 but Mother did not attend, stating she forgot about it. The next day, Minor told the Agency he no longer wanted to visit with Mother because she "`cusses people out too much.'" Two weeks later, Mother unexpectedly found Minor at the home of a maternal relative. Mother pushed her way into the home and slapped Minor's head, knocking him to the ground. Minor fled to a neighbor's home while Mother chased him; she then returned to the maternal relative's home, kicked in a patio gate, and broke a table. Mother was arrested and subsequently pled guilty to misdemeanor child abuse. After this incident, Minor was "terrified" of Mother and did not want to visit or see her. In addition, Minor's maternal cousin told the Agency she was no longer able to care for Minor because of his special mental health needs and safety concerns in light of Mother's threats and behavior.3

The Agency filed a supplemental petition alleging that the placement with the maternal cousin was not effective in protecting Minor. The Agency recommended terminating reunification services in light of Mother's refusal to participate in services. Mother told Agency social workers she refused to undergo a psychological evaluation and refused to see an Agency-recommended therapist. Although Mother had completed a parenting education class, the instructor told the Agency Mother took no responsibility and felt that everything was Minor's fault. Mother's interactions with Agency social workers were "primarily negative and border on abusive."4 The Agency also recommended terminating visits because of Mother's "impulsivity and violent history." Following a July 2013 hearing, the juvenile court terminated reunification services to Mother, terminated visitation with Mother, and ordered a permanent plan of long-term placement.

Minor was placed in an intensive treatment foster home in the summer of 2013. Within the first six months of this placement, his behavior problems at school and home decreased and he grew very connected to his foster parents, calling them "Mommy" and "Daddy." During 2014, Minor continued to do well in this placement. In the second half of 2014, he had no incidents of sexual aggression or violence towards animals, and showed improvements with other problem behaviors. Mother sporadically contacted the Agency for updates on Minor or gave the Agency gifts for Minor. She also expressed a desire for visitation, but was told by the Agency she would need to complete a psychological evaluation and engage in therapy. Minor occasionally expressed interest in knowing how Mother was doing, but continued to be afraid of her. Minor's foster parents were willing to consider legal guardianship or adoption, but wanted to wait to see if any biological family members came forward. At postpermanency review hearings during this time, the juvenile court ordered the permanent plan to be planned permanent living arrangement.

In the summer of 2015, Minor began talking to Father over the telephone. Over the next six months, Minor had phone calls and supervised visits with Father, which went well. Mother continued to express interest in visits with Minor. In August 2015, Mother stated she had engaged in therapy and had a psychological evaluation, and she signed a release allowing the Agency to speak to the provider. Shortly thereafter, however, Mother directed the Agency not to speak with the provider, claiming they discriminated against her. At the end of 2015, Minor's foster parents wanted to move forward with legal guardianship. Minor told the Agency he loved his foster parents and supported them becoming his guardians.

In March 2016, Father filed a section 388 petition requesting Minor be placed with him or he be provided with reunification services. Following an evidentiary hearing, the juvenile court denied Father's petition. The same month, Mother filed a section 388 petition requesting reversal of the court's orders terminating her visitation and requiring her to undergo a psychological evaluation. Mother's petition claimed as the changed circumstance that she was now representing herself in court which "proves mental capacity."5 The juvenile court summarily denied the petition.

In July 2016, the Agency reported Minor had been with his foster parents for close to three years and had made significant improvements in his behavioral and emotional issues. His foster parents wanted to provide Minor with a permanent home. However, they did not want to move forward with legal guardianship because of their concern that guardianship would cause Minor to lose financial support from the Agency after he turned 18. In May 2016, when an Agency social worker talked to Minor about permanency with his foster parents, he "became agitated and asked why he couldn't live with [Mother]. This is the first time [Minor] has brought up wanting to have any contact with [Mother]."

In September 2016, Father filed a request for a temporary restraining order to protect him and his children, including Minor, from Mother. Father's declaration stated that in July 2016, Mother arrived unexpectedly at Father's home as Father was leaving with his nine-year-old daughter. Mother began yelling and threatened to kill Father and his daughter. As Father attempted to walk away and call the police, Mother slapped the phone out of his hand, knocked his glasses off his face, and ripped his shirt half way off. The juvenile court issued the requested temporary restraining order.

As of October 2016, Minor's foster parents still did not want to move forward with legal guardianship because it would mean Minor would not have access to educational and financial resources for college. They were committed to caring for him and were open to permanency plan options. Minor was doing well at home and at school, with only occasional altercations with peers at school. Minor continued to feel connected to his foster parents and referred to them as "mom" and "dad."

In November 2016, Mother filed the section 388 petition at issue in this appeal, seeking an order allowing visits with Minor. Mother alleged as changed circumstances, "Completed: Parenting classes, drug testing, now self representing appointed/granted by the court." The petition alleged visitation would be better for Minor "[t]o gain a stable relationship" and because Minor "requested to live w/mother and to visit w/mother." The court summarily denied the petition on the ground that it did not state new evidence or a change of circumstances. This appeal followed.

DISCUSSION

"A party may petition the court under section 388 to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that (1) there is a change of circumstances or new evidence, and (2) the proposed change is in the child's best interests. [Citations.] The petition must be liberally construed in favor of its sufficiency. [Citations.] `The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing.' [Citation.] `"[I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing." [Citation.]' [Citation.] `However, if the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. [Citations.] The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition.' [Citation.] In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case." (In re Jackson W. (2010) 184 Cal.App.4th 247, 257-258.)

Mother argues Minor's questioning why he could not live with Mother constitutes a prima facie showing of changed circumstances. However, as the Agency notes, Mother's visits were not terminated because of Minor's wishes. Instead, visits were terminated because they posed a threat to Minor's physical safety and emotional well-being. The Agency attributed Mother's combative behavior to an undiagnosed mental illness and the juvenile court apparently agreed, ordering a psychological assessment as part of Mother's reunification plan. Mother's petition alleged no relevant changed circumstances regarding her mental health or combative behavior.6

For the same reason, even if Minor's statement was evidence of changed circumstances, Mother failed to make a prima facie showing that visitation would be in Minor's best interests. The last time Mother saw Minor she physically attacked him. Mother argues the evidence of her combative conduct towards Minor is remote, dating from 2013 and earlier. But the record demonstrates years of Mother's combative and aggressive acts. Moreover, her recent physical attack on Father in July 2016 indicates this behavior has not changed.

Mother argues the current status of her mental health could have been explored at an evidentiary hearing, but the juvenile court is under no obligation to hold such a hearing in the absence of a prima facie showing of changed circumstances and that the proposed change would be in the best interests of the child. In her reply brief, Mother suggests there is evidence she engaged in individual therapy. Her record citation is to an Agency report that in 2015 Mother claimed she was in therapy and had a psychological evaluation, but then directed the Agency not to speak with the provider, asserting they discriminated against her. This is not sufficient to satisfy the required prima facie showing.

Mother argues visitation is in Minor's best interests because, since Minor's foster parents are not interested in adoption or legal guardianship, family reunification is possible and visits will not interfere with Minor's placement. Even assuming reunification with Father is possible, this does not render visitation with Mother in Minor's best interests, in light of Mother's history of combative behavior. And while parental visits would not necessarily interfere with Minor's placement — as evidenced by Minor's visits with Father — this again does not mean visits with Mother are in Minor's best interest.

The parties dispute the permanence of Minor's current placement. We agree with the Agency that it is significant that Minor has been with this foster family for over three years, they are willing to be a permanent placement for him, and they are not pursuing legal guardianship only because of the implications for Minor's financial support when he turns 18. It is noteworthy that, while Minor exhibited serious behavioral and emotional issues after being in Mother's care, he has made substantial progress on these issues after being out of Mother's care for some years. In any event, in this case the permanence of Minor's current placement does not impact the question of whether Mother made a prima facie showing that visits are in Minor's best interest. The juvenile court did not abuse its discretion in finding she did not make such a showing.

DISPOSITION

The juvenile court's order is affirmed.

JONES, P.J. and BRUINIERS, J., concurs.

FootNotes


1. All undesignated section references are to the Welfare and Institutions Code.
2. Father waived reunification services.
3. In addition to the April 2013 incident, in the fall of 2012 Mother sent the relative caregivers 76 harassing text messages in one month and called the police to the caregivers' house three times in one weekend.
4. One Agency social worker obtained a temporary restraining order against Mother following Mother's verbal threats.
5. In September 2015, Mother's attorney requested to be relieved as her counsel, stating Mother threatened to report her to the State Bar and created an adversarial relationship. Mother had at least six prior attorneys in this dependency proceeding who requested and were granted leave to withdraw. The juvenile court granted the September 2015 request and allowed Mother to represent herself with advisory counsel.
6. On appeal, Mother does not rely on her self-representation, parenting class, or drug testing as evidence of changed circumstances. None of these, even if proven true at an evidentiary hearing, suggest Mother would no longer pose a threat to Minor's physical safety and emotional well-being. We note Mother continued to act combatively after completing a parenting class in 2012.

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