In re Catalina C. CA5 ( 2015 )

Filed 11/6/15 In re Catalina C. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
In re CATALINA C., a Person Coming Under
the Juvenile Court Law.
STANISLAUS COUNTY COMMUNITY F071555
SERVICES AGENCY,
(Super. Ct. No. 516717)
Plaintiff and Respondent,
v. OPINION
VICTORIA C.,
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Stanislaus County. Ann Q.
Ameral, Judge.
Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and
Appellant.
John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P.J., Detjen, J. and Peña, J.
Appellant Victoria C. is the mother of 10-year-old Catalina C., the subject of this
appeal. In February 2015, the juvenile court terminated Victoria’s parental rights (Welf.
& Inst. Code, § 366.26)1 and ordered the Stanislaus County Community Services Agency
(agency) to arrange a final visit. The agency subsequently filed a petition under
section 388 asking the court to vacate its visitation order and prevailed. Victoria
contends the juvenile court erred in granting the petition because the agency failed to
show there was a change in circumstances to warrant modifying the order. We affirm.
PROCEDURAL AND FACTUAL SUMMARY
This appeal comes to us in the wake of the juvenile court’s order terminating
Victoria’s parental rights as to her daughter, Catalina. Prior to terminating Victoria’s
parental rights, the juvenile court provided her over a year of reunification services.
During that time, Victoria appealed from orders related to the disposition of the case and
termination of reunification services and we affirmed the orders. We are therefore very
familiar with the facts in her case.
The issue Victoria raises on this appeal is very discrete. It concerns the juvenile
court’s order granting a section 388 petition effectively depriving Victoria of a final visit
with her daughter. In order to grant a section 388 petition, the juvenile court must find
there has been a change in circumstances. Victoria contends there is insufficient
evidence to support such a finding and therefore the juvenile court erred.
The question of whether a change of circumstances exists requires the juvenile
court to make a factual determination. In so doing, the court may consider the entire
factual and procedural history of the case. (In re Justice P. (2004) 123 Cal. App. 4th 181,
189.) With that in mind, we focus our summary in this case on only those facts from the
inception that are germane to Victoria’s issue and provide a context for the juvenile
court’s ruling.
1 All statutory references are to the Welfare and Institutions Code.
2.
Victoria has a significant history of physical violence and emotional instability.
As far back as 2008, the agency received reports that Victoria struck then three-year-old
Catalina in the face. Victoria expressed being overwhelmed and having suicidal and
homicidal thoughts. She said she was sick and tired of dealing with Catalina. The
agency continued to receive reports of physical abuse over the years. In 2011, the agency
began receiving reports that Victoria engaged in domestic violence with a woman. The
following year, the agency opened a voluntary family maintenance case after Victoria’s
former partner bit Victoria’s ear, choked her, and beat her up. In January 2013, Victoria
was arrested for armed robbery after she assaulted her former partner with scissors and
stole her dog. Victoria was released but arrested not long after for armed robbery and
conspiracy.
The incident which prompted these proceedings occurred in June 2013 after
Catalina was placed with her maternal grandmother. Then seven-year-old Catalina was
watching television at approximately 11:30 p.m. while her grandmother slept. Catalina
tried to light candles with a childproof lighter and caught her dress on fire. She was
treated for third degree burns over approximately half of her body and underwent skin
graft surgeries. At the time, Victoria was incarcerated.
The juvenile court exercised its dependency jurisdiction over Catalina, ordered her
removed from Victoria’s custody and provided Victoria over a year of reunification
services, including weekly supervised visits.2 However, Victoria did not make
significant progress toward reunifying with Catalina. She blamed the agency for her
circumstances, accusing the agency of conspiring against her. She blamed Catalina for
inciting her anger, claiming Catalina knew how to “push her buttons.” She was also
verbally abusive to Catalina and, at times, emotionally cruel. Victoria’s visits with
2 Victoria appealed from the juvenile court’s order removing Catalina from her
custody. We affirmed the juvenile court’s decision in case No. F068475. (In re Catalina
C. (July 11, 2014, F068475) [nonpub. opn.].)
3.
Catalina remained supervised at Catalina’s request because Catalina was afraid that
Victoria would hit her if no one was around. At that time, Catalina stated she did not
ever want to return to her mother and believed it was for the best.
Notably, during the reunification period, Victoria was evaluated by a psychologist
who diagnosed her with major depressive disorder and stated that she displayed the
essential features of posttraumatic stress disorder (PTSD) and many borderline
personality traits. The psychologist opined that Victoria’s greatest obstacle to successful
reunification was her maladaptive approach in dealing with life stressors.
In October 2014, the juvenile court terminated Victoria’s reunification services
and set a section 366.26 hearing for February 2015. In its report for the section 366.26
hearing, the agency recommended the juvenile court select adoption as Catalina’s
permanent plan. According to the agency, Catalina was making progress, but needed
intensive care for her physical and emotional needs. Catalina was placed with foster
parents who were committed to adopting her. Meanwhile Victoria continued to blame
others for her circumstances and even blamed Catalina for the termination of her
reunification services.
In January 2015, Victoria filed a “Request to Change Court Order” (JV-180) under
section 388 (section 388 petition) asking the juvenile court to reinstate reunification
services and increase her visitation. She attached certificates showing she completed an
anger management course and a letter describing her ongoing participation in anger
management, domestic violence counseling, individual counseling and non-violent
parenting. The juvenile court summarily denied Victoria’s section 388 petition and we
affirmed the court’s decision. (In re Catalina C. (Aug. 12, 2015, F071008) [nonpub.
opn.], review pending, petition filed Sept. 22, 2015, S229452.)
In February 2015, the juvenile court convened the section 366.26 hearing.
Minor’s counsel made an offer of proof that if called Catalina would testify that she
would like to see her mother weekly for two hours outside of the county office but
4.
wanted to be adopted by her foster parents. Victoria testified that her last visit with
Catalina was on January 23, 2015, and Catalina stated she wanted to go home with her.
Social worker Christine Shahbazian testified that Catalina vacillated on whether she
wanted to return to Victoria.
The juvenile court terminated Victoria’s parental rights and directed the agency to
schedule a final visit that same month. The court stated “there should be a final visit” but
cautioned Victoria that if “things [got] out of hand emotionally[,] the visit would have to
be stopped.”
On February 20, 2015, the agency filed a section 388 petition seeking to modify
the juvenile court’s order granting a final visit. It asked that no in-person final visit
occur. In the section of the JV-180 requiring the petitioner to explain how the
circumstances have changed since the court’s prior order, the agency referenced several
events that occurred subsequent to the section 366.26 hearing. Catalina reported being
contacted at her school by “Aunt Cookie,” a friend of Victoria’s. Aunt Cookie told
Catalina what happened at the section 366.26 hearing and told her that her “mother was
very upset and cried.” Aunt Cookie gave Catalina her phone number on a piece of paper
and told her that she knew where the foster parents lived and could pick her up. Catalina
gave the paper to her foster parents. Aunt Cookie agreed not to have any further contact
with Catalina after being confronted by school officials. She informed them that she had
received several calls from Victoria, including one that alarmed her. Victoria gave her
the impression she intended to go to the school and attempt to take Catalina.
The second event occurred on February 18, 2015, when Victoria called the
visitation supervisor about arranging the visit. Victoria became very hostile to the
visitation supervisor and accused her of lying. Victoria also accused Christine
Shahbazian of lying and stated: “That f***ing bitch Christine stood up in court and lied.”
“They’re taking my child away because of that bitch Christine lying in court. They’re not
going to take my kid away because of a bunch of lies.”
5.
The juvenile court issued a temporary order suspending the final visit and
requested input from Catalina’s counselor as to whether a final visit would be beneficial
or detrimental to her. Catalina’s counselor said that she was treating Catalina for PTSD
but had not worked with her for very long. Consequently, she could not provide the court
a recommendation except to say that she was willing to help prepare Catalina for a final
visit if such occurred.
In April 2015, the juvenile court concluded the hearing on the agency’s
section 388 petition. The court proceeded on the documents submitted and invited
comment from counsel and the court appointed special advocate (CASA). The CASA
told the court that she spent time with Catalina once a week and that Catalina had not
requested to see her mother.
The juvenile court granted the agency’s section 388 petition, observing that
Victoria was “very emotionally charged” and that Catalina had been through a lot. The
court found that the petition set forth evidence that a significant change of circumstances
had occurred and that it would be in Catalina’s best interest to forgo a final visit.
This appeal ensued.
DISCUSSION
Victoria contends that the juvenile court abused its discretion in granting the
agency’s section 388 petition because the agency failed to show that her circumstances
had changed and that abandoning a final visit was in Catalina’s best interest. We
disagree.
Under section 388,3 the juvenile court should modify an order if circumstances
have changed such that the modification would be in the child’s best interest. (In re
3 Section 388 provides in pertinent part that a parent “(a)(1) … may, upon grounds
of change of circumstance or new evidence, petition the court … for a hearing to change,
modify, or set aside any order of court previously made .… [¶] … [¶] (d) If it appears
that the best interests of the child … may be promoted by the proposed change of
order .…”
6.
Kimberly F. (1997) 56 Cal. App. 4th 519, 526 & fn. 5.) “Whether a previously made order
should be modified rests within the [juvenile court’s] discretion, and its determination
will not be disturbed on appeal unless an abuse of discretion is clearly established.” (In
re Michael B. (1992) 8 Cal. App. 4th 1698, 1704.) “‘“The appropriate test for abuse of
discretion is whether the [juvenile court] exceeded the bounds of reason. When two or
more inferences can reasonably be deduced from the facts, the reviewing court has no
authority to substitute its decision for that of the [juvenile court].”’ [Citations.]” (In re
Stephanie M. (1994) 7 Cal. 4th 295, 318-319.) Abuse of discretion is established if the
determination is not supported by substantial evidence. (Michael U. v. Jamie B. (1985)
39 Cal. 3d 787, 796.) In determining whether substantial evidence supports the factual
findings, “all intendments are in favor of the judgment and [we] must accept as true the
evidence which tends to establish the correctness of the findings as made, taking into
account as well all inferences which might reasonably have been drawn by the trial
court.” (Crogan v. Metz (1956) 47 Cal. 2d 398, 403-404.) The party requesting the
change of order has the burden of proof. (Cal. Rules of Court, rule 5.570(h)(1); In re
Michael B., supra, at p. 1703.)
As changed circumstances, the agency alleged facts to show that following the
juvenile court’s order for a final visit, Victoria coerced Aunt Cookie into manipulating
Catalina by letting her know that Victoria was saddened by the result of the section
366.26 hearing and encouraging Catalina to have unauthorized contact with Victoria.
According to Aunt Cookie, Victoria also intimated that she would take matters into her
own hands by kidnapping Catalina from school.
Victoria argues the juvenile court was fully aware of her history when it ordered
the visit and that her behavior as described in the petition was not out of the ordinary for
her. She further argues that any notion that she would be violent or act out against
Catalina was purely speculative and did not constitute a change in circumstances.
7.
We conclude substantial evidence supports the juvenile court’s factual
determination a change of circumstances occurred subsequent to its order for a final visit.
When the court granted Victoria a final visit, it was aware there was a risk that Victoria
might act out emotionally and cautioned against it. Nevertheless, the court felt that such
a visit should occur and knew that it would be supervised. What subsequently changed
was the extent to which Victoria might resort to take custody of Catalina and her plan to
disregard the court’s warning as evidenced by her conversations with and manipulation of
Aunt Cookie. Given Victoria’s violent history, the possibility that she would harm
someone or kidnap Catalina is not speculative. Rather, it would be consistent with the
maladaptive behavior the psychologist said she employed when dealing with stressful life
situations.
Further, we find no abuse of discretion in the juvenile court’s modification of its
visitation order. Catalina was afraid of her mother and had ambivalent feelings toward
her. In addition, Catalina was not asking to see Victoria. Under those circumstances and
given Victoria’s unpredictability and the high tension a final visit would present, the
court properly acted in Catalina’s best interest by not allowing such a visit.
We find no error and affirm.
DISPOSITION
The judgment is affirmed.
8.