In re Ebony B. CA2/7 ( 2022 )

Filed 4/11/22 In re Ebony B. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re EBONY B. et al., Persons B313484
Coming Under the Juvenile
Court Law.
(Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 19CCJP00284AB)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
ROSA H.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Annabelle G. Cortez, Judge. Affirmed.
Janette Freeman Cochran, under appointment by the Court
of Appeal, for Defendant and Appellant.
Tarkian & Associates and Arezoo Pichvai for Plaintiff and
Respondent.
INTRODUCTION
Eighteen months after declaring Ebony B. and Nila B.
dependent children of the juvenile court, the court terminated
family reunification services for their mother, Rosa H. Prior to
the selection and implementation hearing under Welfare and
Institutions Code section 366.26,1 Rosa filed a petition under
section 388 for an order returning Ebony and Nila to her care or,
in the alternative, reinstating family reunification services. Rosa
appeals from the order denying her petition. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Court Declares Ebony and Nila Dependent
Children of the Court and Removes Them from Rosa
On January 7, 2019 the Department received a referral
alleging Rosa had hit Ebony’s and Nila’s father, Dylan B. At the
time, Ebony was two years old and Nila was 10 months old. A
social worker interviewed Dylan, who stated Rosa threw a hard
object that hit him in the back of the head. Dylan said Rosa then
began to punch him.
The next day the Department received a referral stating
that someone found Ebony and Nila crying and unattended in a
stroller at a bus stop near a busy intersection. Eventually, Dylan
1 Statutory references are to the Welfare and Institutions
Code.
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arrived and said he was the children’s father. Law enforcement
took Ebony and Nila to a Los Angeles Police Department station.
Rosa arrived at the station and spoke to two social workers.
She admitted that she “sock[ed]” Dylan in the face the previous
weekend and stated that she wanted to “hurt him real bad” and
“kill him.” She also said the family was homeless. After
obtaining a removal order, the Department removed Ebony and
Nila from Rosa and Dylan and placed them in protective custody.
In March 2019 the juvenile court sustained a petition under
section 300, subdivision (b), and declared Ebony and Nila
dependent children of the court. The court found true allegations
that there was a substantial risk Ebony and Nila would suffer
serious physical harm because Rosa and Dylan (who is not a
party to this appeal) had a history of physical altercations,
including the recent January 2019 incident and a November 2018
incident where Rosa kicked Dylan, and because Rosa
“demonstrated numerous mental and emotional problems” and
required hospitalization to treat her mental health. The court
ordered family reunification services for Rosa, including
participation in anger management and parenting programs and
individual counseling. The court ordered monitored visits for
Rosa, but precluded her from visiting the children at the same
time Dylan was visiting them.
B. The Court Terminates Family Reunification Services
In September 2019 the court held a review hearing under
section 366.21, subdivision (e). Prior to the hearing, the
Department reported Rosa had participated in some, but not all,
of the court-ordered programs and counseling. Rosa consistently
attended her monitored visits with the children. However, she
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twice verbally accosted a social worker at a Department office
and left two voice messages for the social worker calling her
profane names and threatening her. At the review hearing, the
court found Rosa had not made substantial progress toward
alleviating or mitigating the causes necessitating juvenile court
jurisdiction.
In September 2020 the court held the permanency planning
hearing under section 366.21, subdivision (f). Prior to the
hearing, the Department reported Rosa had made some
additional progress toward completing the court-ordered
programs. Rosa testified at the hearing that she did not complete
the parenting course, but that she had only a “couple” more anger
management classes remaining. But the Department also
reported that Rosa behaved inappropriately and failed to take
care of Ebony and Nila during her monitored visits and that Rosa
also appeared to still be seeing Dylan, who accompanied Rosa on
most of her monitored video calls with the children. The juvenile
court again found Rosa had not made substantial progress
toward alleviating the causes necessitating juvenile court
jurisdiction and terminated reunification services for Rosa.
C. Rosa Files a Petition Under Section 388
In December 2020 Rosa filed a petition under section 388,
requesting an order returning Ebony and Nila to her care or, in
the alternative, reinstating reunification services. Rosa alleged
that she participated in individual therapy sessions between
March 2019 and November 2020; that she completed the court-
ordered anger management, parenting and outpatient treatment
programs; and that she participated in a domestic violence
program.
4
Prior to the hearing on the petition, the Department
reported that the supervisor of the anger management and
domestic violence programs stated that, although Rosa completed
the programs, she behaved inappropriately during the courses.2
The Department reported that Ms. W., Ebony and Nila’s
caretaker, said that Rosa, during visits with Ebony and Nila,
acted childlike and failed to provide appropriate parental care.
After the visits, both Ebony and Nila acted out. Ms. W. also
stated that in April 2021 she saw Rosa yelling at, and repeatedly
hitting, Dylan in a parking lot.
D. The Court Denies the Petition
In July 2021 the court denied Rosa’s petition. The court
found Rosa had not shown a change in circumstances because,
even though Rosa had completed several programs and services
and had participated in counseling, her participation had “not
quite fully led to gaining the insight and putting into practice the
skills that she is alleging she has learned.” The court cited in
particular the recent incident where Rosa hit Dylan in a parking
lot. The court also found that neither placing Ebony and Nila
with Rosa nor reinstating Rosa’s reunification services was in the
children’s best interests. Rosa timely appealed from the order
denying her petition under section 388.
2 Rosa had not completed the domestic violence program
when she filed the petition, but completed the program prior to
the hearing.
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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 . . .
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, italics omitted; see In re
Stephanie M. (1994) 7 Cal.4th 295, 317; In re J.M. (2020)
50 Cal.App.5th 833, 845.)
Because Rosa had the burden to demonstrate there was
new evidence or a change of circumstance, we review the juvenile
court’s finding Rosa 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
6
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, returning Ebony and Nila to
Rosa’s care or reinstating reunification services—was not in the
children’s best interests. (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
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 Was
No Change in 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
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resolved the previously unresolved issues supporting juvenile
court jurisdiction”].)
Here, the basis of the trial court’s jurisdiction was Rosa’s
history of physical altercations with Dylan and her mental health
issues, behavioral concerns, and “emotional problems.” Rosa
argues the changed circumstances were that she separated from
Dylan and that she completed the court-ordered anger
management, parenting and outpatient treatment programs; also
completed a domestic violence program; and participated in
individual counseling. The Department acknowledged in a
March 2021 interim review report Rosa stated she had separated
from Dylan. But the juvenile court did not have to find that
Rosa’s statements were credible or that the separation was likely
permanent. (See In re Mickel O. (2011) 197 Cal.App.4th 586, 615
[on a section 388 petition, “‘[i]t is the [juvenile] court’s role to
assess the credibility of the various witnesses’” and “‘to weigh the
evidence to resolve the conflicts in the evidence’”].) And the court
had good reason not to believe Rosa. In a September 2020
interim review report, filed only a few months before Rosa filed
her section 388 petition, the Department stated Rosa, in violation
of the court’s order, had been visiting Ebony and Nila with Dylan
present. (See In re N.F., supra, 68 Cal.Aplp.5th at p. 120 [“In
determining whether the petitioning party has carried his or her
burden [on a section 388 petition], ‘the court may consider the
entire factual and procedural history of the case.’”].)
And even if Rosa had really separated from Dylan, there
was evidence Rosa continued to have physical altercations with
him, from which the juvenile court could reasonably conclude the
issues that brought the children within the dependency system,
including Rosa’s domestic violence and behavioral issues, had not
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been adequately resolved or remedied. True, Rosa eventually
completed the court-ordered programs. And she regularly
participated in individual counseling sessions during the
reunification period. But “[t]he fact that the parent ‘makes
relatively last-minute (albeit genuine) changes’ does not
automatically tip the scale in the parent’s favor.” (In re D.R.
(2011) 193 Cal.App.4th 1494, 1512.) And there was evidence the
programs and counseling were not all that helpful. Rosa called
Dylan on the phone during a visit with her children in
March 2020—after she started participating in individual
counseling and the court-ordered programs—and yelled at him,
“You are a motherfucker, it is your fault that we are not getting
our kids back.” The monitor ended the visit because, even after
Ebony began crying, Rosa ignored Ebony and continued to yell at
Dylan. (Cf. In re Jaden E. (2014) 229 Cal.App.4th 1277, 1289
[order terminating reunification services was not an abuse of
discretion where the mother “continued to obstinately and
belligerently maintain that she did not require any services to
reunify with the minor; and remained completely oblivious to the
significantly detrimental impact that her actions were having on
her son”].)
In addition, the supervisor of Rosa’s domestic violence and
anger management programs told the Department that Rosa was
“called out of [the domestic violence] class on several occasions
due to Rosa’s inappropriate comments to the facilitator of the
class and to the [other] students taking the course . . . .” And it
took Rosa two years to complete the 52-week anger management
program because she repeatedly stopped attending, and when she
did attend, she “antagonized others in the class and got into
constant confrontations.” Finally, as the trial court observed,
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Ms. W. saw Rosa yelling at and hitting Dylan in April 2021—
after Rosa filed her section 388 petition alleging there was a
change in circumstances. When questioned by the Department
about her behavior, Rosa did not deny or attempt to explain it;
she simply stated she did not want to talk about it. The juvenile
court did not err in finding Rosa failed to show a substantial
change of circumstances. (See In re D.P. (Feb. 10, 2022,
C093535) ___ Cal.App.5th ___, ___ [2022 WL 714791, p. 6]
[“mother presented only evidence of completing classes and
attending therapy sessions,” but “any change in circumstance is
. . . weighed against her long history of allowing father to abuse
the children”]; In re N.F., supra, 68 Cal.App.5th at p. 122 [“Given
Mother’s history, her recent completion of yet another program
did not constitute a material change in circumstances.”].)
C. The Juvenile Court Did Not Abuse Its Discretion in
Ruling the Proposed Modifications Were Not in
Ebony’s or Nila’s Best Interests
Even if Rosa had shown a change in circumstances, the
juvenile court did not abuse its discretion in ruling it was not in
Nila’s or Ebony’s best interest to return either of them to Rosa’s
care or to reinstate reunification services for Rosa. “[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.) “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.,
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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.)
Rosa alleged it was in the children’s best interest for the
court to return them to her care, or to reinstate reunification
services, because she was their biological mother, they were
bonded to her, she had learned parenting skills through the
programs she completed, and she could provide Ebony and Nila a
nurturing home. Certainly Ebony and Nila had an interest in
having a biological parent raise them. (See In re J.M., supra, 50
Cal.App.5th at p. 849.) But that was not enough to justify
reinstating reunification services. Because of a child’s need for
permanency and stability, after “reunification services have been
terminated, there is ‘a rebuttable presumption that continued
foster care is in the child’s best interests.’” (In re J.M., at p. 847;
see In re Marilyn H. (1993) 5 Cal.4th 295, 310.)
The evidence did not support the rest of Rosa’s contentions.
First, there was evidence Ebony’s and Nila’s bonds with Ms. W.
were least as strong, if not stronger, than with their bonds with
Rosa. (See In re D.P., supra, ___ Cal.App.5th at p. ___ [2022 WL
714791, p. 6] [juvenile court did not abuse its discretion in
denying mother’s section 388 petition where, although “the
minors may [have been] bonded with mother,” the “evidence
available to the court when it denied mother’s petition indicated
a significant bond with the caretakers”].) According to the
Department’s January 2021 report for the section 366.26 hearing,
Ms. W. stated that she, Ebony, and Nila had grown closer during
the two years they had been in her care and that Ms. W.’s family
considered Ebony and Nila part of their family. (See In re J.C.
(2014) 226 Cal.App.4th 503, 527 [juvenile court did not abuse its
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discretion in denying a section 388 petition where the caregiver
“was the only constant and stable parent [the child] had ever
known,” and the caregiver and caregiver’s other children “felt like
[the dependent child] was part of their family”].) Ebony and Nila
did not ask Ms. W. about Rosa or look forward to visits with Rosa.
And according to the Department’s May 2021 interim report,
Ms. W. stated Ebony and Nila began acting out after recent visits
with Rosa. Nila behaved worse at her daycare center, cried
excessively, and had anxiety when separated from Ms. W. Ebony
also acted out in school and poked her fingers into her arm and
said, “I’m hurting myself.”
Second, as discussed, there was evidence the court-ordered
programs and counseling had not been particularly helpful to
Rosa or alleviated the problems supporting juvenile court
jurisdiction. (See In re Anthony W. (2001) 87 Cal.App.4th 246,
251 [“Mother made no showing how it would be the children’s
best interest to continue reunification services, to remove them
from their comfortable and secure placement to live with mother
who has . . . a recurring pattern of domestic violence in front of
the children.”].) And finally, the evidence Rosa could in fact
provide the permanent and stable living situation Ebony and
Nila needed was limited. The Department’s June 2021 interim
review report stated that Rosa was living in a room in
transitional housing, where Ebony and Nila could not live with
her, and there was no evidence Rosa had a plan to obtain housing
for her and the children.
The Department also reported that, according to Ms. W.,
Rosa would frequently fail to perform parenting obligations
during visits with the children. Rosa did not change Ebony’s and
Nila’s diapers and, after they were potty-trained, did not take
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them to use the bathroom when necessary. And she did not help
console Ebony and Nila when they were upset. A Department
social worker similarly reported that during monitored visits
Rosa did not attempt to comfort Ebony and Nila when they cried,
instead telling them to “grow up.” (See In re Anthony W., supra,
87 Cal.App.4th at p. 251 [“The children should not be made to
wait indefinitely for mother to become an adequate parent.”].) In
contrast, Ms. W. had provided Ebony and Nila a stable home for
two years, was meeting their developmental needs, and was
willing to adopt them. (See In re N.F., supra, 68 Cal.App.5th at
p. 122 [juvenile court did not abuse its discretion in denying a
section 388 petition where the child “was thriving in [the
caretakers’] stable home and was bonded to them,” the caretakers
“loved [the child] and were committed to providing her
permanency through adoption,” and the mother’s “circumstances
were unstable”].)
DISPOSITION
The order is affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J. FEUER, J.
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