California Court of Appeal May 9, 2014 No. D065121Unpublished
Filed 5/9/14 In re J.M. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re J.M., a Person Coming Under the Juvenile Court Law. D065121 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. NJ14788C) Plaintiff and Respondent,
v.
M.P.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Michael Imhoff,
Commissioner. Affirmed.
Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant
and Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy and Patrice
Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.
M.P. (mother) contends the juvenile court erred in (i) denying her an evidentiary
hearing on her Welfare and Institutions Code1 section 388 petition after the court sustained,
under section 300, subdivision (j), the petition of respondent San Diego County Health and
Human Services Agency (Agency) on behalf of J.M.; (ii) denying her and Benjamin M.
(Benjamin),2 J.M.'s father and mother's live-in boyfriend, reunification services; and
(iii) setting a hearing under section 366.26 to select and implement a permanent plan for
communication, fine motor and personal-social development" and his "emotional reactivity,
aggressive behavior and social emotional" behavior. These concerns were also expressed
by J.M.'s caregiver, who further reported J.M. was hard to discipline, was not using words
or pointing to things to express his wants or needs and was biting and scratching himself
and others.
In the September 5 addendum report the social worker recommended supervised
visitation between J.M. and mother, who had been released from custody in late August
2013, and was then residing at a residential treatment center. The record shows the court
ordered supervised visits between J.M. and mother.
The Agency's October 22, 2013 report prepared in connection with the selection and
implementation hearing under section 366.26 noted Benjamin had been sentenced to nine
years in state prison and noted mother had received four years formal probation, 365 days in
custody and ordered to complete a 52-week child abuse class and participate in any
psychiatric/counseling if directed by probation.
With regard to J.M., the October 22 report noted that he had a developmental
evaluation through Rady's and was found to have cognitive functioning at the "low end of
average, average fine motor skills, low average gross motor skills, concerns about speech
and language progression, and adjustment disorder, specified by emotional and behavioral
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concerns directed toward self and others, secondary to past trauma and disruption in
attachment with primary caregivers and separation from sibling." It further noted J.M. was
undergoing DSEP services and was receiving weekly, in-home services from a behavior
specialist who found that J.M. was having a "hard time regulating" and that his tantrums
continue "the rest of the day."
J.M.'s caregiver reported he kicks the dog and other children, including his brother
J.A. who also lives with the caregiver, "does not like the bathtub, and will pinch his ear until
it bruises." The caregiver said J.M. will bite himself if the caregiver stops him from biting
others, and J.M. continues to go "very rigid and throw his head forward, or back, hurting
himself or others" when he has a tantrum. It was recommended, based on J.M.'s history and
behavior that he would benefit from treatment for posttraumatic stress disorder (PTSD).
The Agency social worker described in the October 22 report three visits between
J.M. and mother. The first visit took place at mother's residential treatment center in mid-
September 2013. The social worker noted J.M. cried when separated from his caregiver.
However, he let mother hug him and quieted when mother sang him a familiar song. J.M.
rarely made eye contact with mother. During some of the visit, he turned his back on her
and when she tried to engage him, he "would just be floppy." Following the visit, the
caregiver reported J.M. for a few hours was unusually quiet and withdrawn.
The second visit took place a week later, again at mother's treatment center. When
J.M. saw mother, he began to walk backwards and looked to be picked up by his caregiver.
J.M. then began to cry. Mother approached the caregiver, who encouraged J.M. to go to
10
mother. Mother took J.M., put his head against her shoulder and sang to him as she walked
away with him. J.M. was comforted.
During the visit, the social worker observed J.M. was sullen and clingy. Although
J.M. made eye contact with the social worker and those who approached him, he often did
not make eye contact with mother, although he did "snuggle his head into her shoulder."
J.M. remained mainly "limp" and "lethargic" for most of the visit and generally had no
interest in playing with any toys or mother. In fact, when mother tried to engage J.M. in
"physical play" by lifting him up above her as she lay on the ground, he "remained floppy as
a rag doll, and then came in close to her, to lay on her, when he could." The social worker
observed that J.M. smiled only once during the visit, when mother gave him a snack, that he
said no words during the entire visit, but that he did point and/or verbalize four times.
When the visit ended, J.M. ran to the caregiver with his arms outstretched. J.M. allowed
mother to hold him when they said goodbye.
The third visit took place in early October 2013, again at mother's treatment center.
J.M. cried when the caregiver handed him over to mother. J.M. quieted when mother sang
to, and snuggled, him. After eating a snack, J.M. pointed to a tetherball and verbalized, not
using words but instead with sounds. Mother took J.M. over to play.
According to the social worker, after mother finished singing a song to J.M., J.M.
"verbalized what sounded close enough to 'again' and [mother] responded by singing again."
They next went to a playroom, where J.M. let mother take his picture and then played with
blocks while sitting next to mother. J.M. smiled and for the first time moved off her lap. At
the end of the visit, J.M. "jumped into her arms with a smile," helped put the blocks away at
11
mother's encouragement and gave her "five." J.M. held out his hands to the caregiver, with
a big smile.
The October 22 report noted that mother was worried about J.M.'s assessments of
developmental delay and behavioral concerns; that she has been "anxious to comply with
any agency regulations, in order to visit with [J.M.]"; and that she has remained in "steady"
contact with the Agency and has attended various meetings to "discuss treatment options for
[J.M.], participating and providing information."
The Agency social worker involved in all three visits concluded that mother's role
with J.M. at that time was that of a "friendly visitor." J.M. seemed to remember his mother,
although the social worker observed that he "remains confused in her presence." J.M.
appeared to becoming more comfortable in her company. In addition, the social worker
noted that J.M. cries when separated from the caregiver and runs to the caregiver when the
visits end, but does not respond when separating from mother. The social worker concluded
"[J.M.] would not suffer detriment should [mother's] parental rights be terminated."
In the assessment/evaluation portion of the October 22 report, the Agency social
worker stated that although J.M. was in need of developmental and behavioral services, he
was adoptable. The report also noted J.M. had no contact with his mother for five months
while she was in custody; that to date her role (as noted) was that of a "friendly visitor"; that
in the three visits witnessed by the social worker, J.M. has shown "impaired attachment"
with mother and seems relieved when he is reunited with his caregiver; that J.M. lived in a
home where he was exposed to "very severe abuse" on his siblings by Benjamin, and thus it
12
was recommended he also receive treatment for PTSD; and that J.M. also might have been
physically abused while in the home.
The October 22 report recognized mother loved her children and was deeply regretful
for what had happened to them. It also noted mother had received a psychological
evaluation in May 2013 in which mother was advised to obtain individual therapy to
"resolve the conflicts relating to her years of abuse, both physical and sexual, rejection by
family, and maltreatment by others." The psychological evaluation noted that although
mother desired to pursue treatment, it was not certain that the "recommended therapy could
proceed quickly enough given the time demands of reunifying with children in the juvenile
dependency system."
The Agency's October 22 report pointed out that mother had not begun her 52-week
child abuse coursework and that her visitation with J.M. had not progressed beyond one
hour, supervised, per week. It concluded that J.M.'s need for a "permanent, stable home
where he can grow up safely and where he can belong, outweighs any detriment he would
suffer, should [mother's] parental rights be terminated." As such, the Agency recommended
the court terminate mother's parental rights and find adoption was in J.M.'s best interests.
The record shows the matter came before the court for a section 366.26 hearing in
late October 2013. The court continued the matter to November 21, 2013. Before the next
hearing, mother filed a section 388 petition, asking the court to change the order denying
her reunification services, to vacate the section 366.26 hearing and either to return J.M. to
her care or to order reunification services for her. Both the Agency and counsel for J.M.
opposed the petition.
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In support of mother's petition, mother noted that since her release from custody in
late August 2013, she had been enrolled in a residential treatment center; that her counselor
at the center stated mother had shown a "positive attitude toward treatment and [her] own
recovery"; that since undergoing treatment, she had participated in all "groups and meetings
available to her" and all drug tests have been negative; that she started basic parenting
classes the first week in October, 2013 and has remained an "active participant" in such
classes; and that she also attended individual therapy at the center, where she was diagnosed
with bipolar disorder for which she was receiving medication.
The Agency addendum report dated November 21, 2013 recognized mother had filed
a section 388 petition but nonetheless recommended adoption as the best permanent plan for
J.M. The November 21 report stated J.M. continued to struggle with certain behaviors
despite intervention, including "aggressive hitting, kicking, and biting of other children, and
if not allowed to do harm [to] others, he will then turn and harm himself, biting himself and
pinching his ear until it bruises."
The Agency in its November 21 report recognized mother's efforts to change her
behaviors, but noted her treatment had just begun and she had not yet demonstrated the
ability to "manage the stresses of day to day life without reverting to previous patterns." In
light of J.M.'s young age, his diagnosis of PTSD and his need for "day to day care and
therapeutic intervention," the Agency reiterated the "benefits of permanency outweigh the
detriment [J.M.] will suffer if parental rights are terminated." The Agency noted, however,
it would work to identify a home for J.M. "open to continued healthy contact with [mother],
and with J.M.'s maternal siblings."
14
After considering the petition and its attachments and the Agency's November 21
addendum report, the juvenile court summarily denied without prejudice mother's section
388 petition, ruling she did not proffer sufficient evidence to overcome the "specific
findings" it made at disposition under section 361.5, subdivisions (b)(5) and (b)(6).3 The
court further ruled that under section 361.5, subdivision (c),4 once the court makes a finding
3 Subdivision (b) of section 361.5 provides: "Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: . . . (5) That the child was brought within the jurisdiction of the court under subdivision (e) of Section 300 because of the conduct of that parent or guardian. (6) That the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of severe sexual abuse or the infliction of severe physical harm to the child, a sibling, or a half sibling by a parent or guardian, as defined in this subdivision, and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian." (Italics added.) Subdivision (b)(6) of section 361.5 states a "finding of the infliction of severe physical harm, for the purposes of this subdivision, may be based on, but is not limited to, deliberate and serious injury inflicted to or on a child's body or the body of a sibling or half sibling of the child by an act or omission of the parent or guardian, or of another individual or animal with the consent of the parent or guardian; deliberate and torturous confinement of the child, sibling, or half sibling in a closed space; or any other torturous act or omission that would be reasonably understood to cause serious emotional damage." Subdivision (e) of section 300, referenced in subdivision (b)(6) of section 361.5, provides in part a child is within the jurisdiction of the juvenile court and is a dependent of the court if "(e) The child is under the age of five years and has suffered severe physical abuse by a parent, or by any person known by the parent, if the parent knew or reasonably should have known that the person was physically abusing the child. For the purposes of this subdivision, 'severe physical abuse' means any of the following: any single act of abuse which causes physical trauma of sufficient severity that, if left untreated, would cause permanent physical disfigurement, permanent physical disability, or death; any single act of sexual abuse which causes significant bleeding, deep bruising, or significant external or internal swelling; or more than one act of physical abuse, each of which causes bleeding, deep bruising, significant external or internal swelling, bone fracture, or unconsciousness; or the willful, prolonged failure to provide adequate food."
4 Subdivision (c) of section 361.5 states in part: "[T]he court shall not order reunification in any situation described in paragraph (5) of subdivision (b) unless it finds 15
under subdivision (b)(5) of that same statute mother was required to present competent
evidence that reunification services are likely to prevent reabuse, which it noted mother had
not proffered.
As to the finding under subdivision (b)(6) of section 361.5 that the child was a
dependent based on the finding of severe physical harm to the child or to the child's sibling,
the juvenile court found that the "best interests for ordering services has to be assessed
within that context" and that for mother to make such a showing, it needed "information
with respect [to mother's] therapeutic progress, specifically on insight into how the children
have been injured, how they are reacting, and what type of parental strategy would be
provided to assist the children."
The court also found it would not be in J.M.'s best interests to grant the relief
requested "given the description of J.M.'s difficulties, his diagnosis of post traumatic stress
disorder, which in and of itself is a very tricky diagnosis . . . . And there needs to be a lot
of work and effort to put in to understanding what the triggers are in post traumatic stress
disorder diagnoses, and we need to have further input with respect to J.M.'s triggers. I don't
discount [mother's] interpretation of J.M.'s clinginess, but I would need much more expert
opinion to guide the court that it's primarily due to his issue of separation from his mother
rather than issues of protection and fear and things of that nature given his diagnosis."
that, based on competent testimony, those services are likely to prevent reabuse or continued neglect of the child or that failure to try reunification will be detrimental to the child because the child is closely and positively attached to that parent." (Italics added.) 16
DISCUSSION
Mother contends the court erred when it summarily denied without prejudice her
section 388 petition. Any party may petition the juvenile court to modify or set aside a prior
dependency order pursuant to section 388. To trigger the right to a full evidentiary hearing,
the section 388 petition must include a prima facie showing of facts that if credited, will
sustain a favorable decision. (See also In re Marilyn H. (1993) 5 Cal.4th 295, 310; In re
Edward H. (1996) 43 Cal.App.4th 584, 592.) The petition is to be liberally construed,
which is to say it is "construed in favor of granting a hearing to consider the parent's
request." (In re Marilyn H., supra, at p. 309; In re Jeremy W. (1992) 3 Cal.App.4th 1407,
1413-1414.)
" 'There are two parts to the prima facie showing: The parent must demonstrate (1) a
genuine change of circumstances or new evidence, and that (2) revoking the previous order
would be in the best interests of the children.' " (In re C.J.W. (2007) 157 Cal.App.4th 1075,
1079.) "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." (In re Zachary G.
(1999) 77 Cal.App.4th 799, 806; C.J.W., supra, at p. 1079.)
We review the summary denial of a section 388 petition for an abuse of discretion.
(In re Marcos G. (2010) 182 Cal.App.4th 369, 382; see also In re Stephanie M. (1994) 7
Cal.4th 295, 317-318 [noting whether the juvenile court should modify a previously made
order rests within its discretion and " ' "a reviewing court will not disturb that decision
unless the trial court has exceeded the limits of legal discretion by making an arbitrary,
17
capricious or patently absurd determination . . . ." ' "].) If the liberally construed allegations
of the petition do not make the required prima facie showings of both changed
circumstances and best interests, the denial of the petition without a hearing does not violate
the petitioner's due process rights. (In re Angel B. (2002) 97 Cal.App.4th 454, 460-461.) In
ruling on a modification petition, the court may consider the entire factual and procedural
history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.)
Liberally construed, the petition showed that mother had been living in a residential
treatment center for only three months after she was released from custody in late August
2013 following her guilty plea to felony child abuse; that mother started basic parenting
classes at the treatment center the first week in October 2013, which was less than two
months before she filed her section 388 petition (which was heard in late November 2013);
and that mother was taking medication for depression and for a bipolar disorder and was
participating in therapy and parenting classes while living in the treatment center.
Although mother was making commendable efforts to address the multiple issues
that led to the severe physical abuse/harm of J. and J.A. by Benjamin as summarized ante
that was known to mother (she admitted treating the children's ongoing injuries and hearing
"thumps" when Benjamin would beat the children), we conclude on this record the juvenile
court's determination was not " ' "arbitrary, capricious or patently absurd" ' " (see Stephanie
M., supra, 7 Cal.4th at p. 318) when it summarily denied without prejudice mother's section
388 petition because she did not make a prima facie showing of a change of, as opposing to
changing, circumstances to warrant a full hearing. (See § 388, subd. (a); cf In re Aljamie D.
(2000) 84 Cal.App.4th 424, 427 [reversing juvenile court order denying a mother an
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evidentiary hearing pursuant to her section 388 petition when the mother proffered evidence
showing that she had tested clean in weekly random drug tests for over two years, that she
had completed parenting classes and a drug rehabilitation plan, and that there was a close
bond between her and the children as evidence by the fact mother lived with the children
and their caretaker (i.e., the maternal aunt) and had "unmonitored" visitation with them].)
Moreover, as noted by the juvenile court, under subdivision (c) of section 361.5 a
court shall not order reunification if, as in the instant case, there has been a finding under
subdivision (b)(5) of that statute that the child was a dependent as provided in subdivision
(e) of section 300,5 "unless it finds that, based on competent testimony, those services are
likely to prevent reabuse or continued neglect of the child or that failure to try reunification
will be detrimental to the child because the child is closely and positively attached to that
parent."
Here, we separately conclude the juvenile court did not clearly abuse its discretion
when it found mother's section 388 petition did not meet the standard set forth in
subdivision (c) of section 361.5. Indeed, similar to the (tacit) finding mother's
circumstances were changing, here the record shows the services she was receiving from the
treatment center may prevent reabuse. However, it was not an abuse of discretion for the
juvenile court to find (tacitly) that those services were "likely" to prevent reabuse, as
5 As noted, subdivision (e) of section 300 generally provides a child is subject to the jurisdiction of the juvenile court if "the child is under the age of five years and has suffered severe physical abuse by a parent, or by any person known by the parent, if the parent knew or reasonably should have known that the person was physically abusing the child." (Italics added.) 19
required by subdivision (c) of section 361.5. This is so particularly given that mother had
only been a resident in the treatment center for three months and had just begun therapy and
parenting classes.
In addition, the record shows mother had only three visits with J.M. before the court
heard her section 388 petition. The record supports the finding of the Agency social worker
in the Agency's October 22 report, summarized ante, that mother's role with J.M. at that
time was that of a "friendly visitor." Indeed, the social worker noted that although J.M. was
becoming more comfortable around mother, he still appeared confused when with her. The
social worker also noted J.M. cried when separated from his caregiver and ran to his
caregiver when the visits with mother ended, but did not similarly respond when separating
from mother. Thus, although J.M. was becoming more comfortable with mother, the record
does not support the (tacit) finding he was "closely and positively attached" to her as
required by subdivision (c) of section 361.5.
Finally, even if we concluded the juvenile court clearly abused its discretion when it
found no change of circumstances in summarily denying mother's section 388 petition and
when it found mother did not proffer sufficient evidence to satisfy her burden under section
361.5, subdivision (c), we nonetheless would affirm the order because we also conclude
mother did not make a prima facie showing (required to obtain a full hearing) that revoking
the order denying her reunification services would be in J.M.'s best interest. (See § 388,
subds. (a) & (c); see also C.J.W., supra, 157 Cal.App.4th at p. 1079.)
20
In In re Kimberly F. (1997) 56 Cal.App.4th 519, 532, the court identified three
principal factors relevant to the juvenile court's evaluation of best interests in the context of
a section 388 petition: (1) the seriousness of the problem that necessitated dependency and
the reason the problem continued; (2) the strength of relative bonds between the dependent
child and the parent and caretakers; and (3) the degree to which the problem may be easily
removed and the degree to which it actually has been.
Applying the Kimberly F. factors here, the record shows that J. and J.A. were
subjected to severe physical abuse and that J.M. also might have been subject to such abuse;
that although J.M. was only about a year old when the abuse began, he was aware of it
because mother admitted she would send J.M. into the room where Benjamin was abusing
J.M.'s siblings in an effort to get Benjamin to stop; and that mother knew Benjamin was
severely abusing the children because she was treating the children's injuries and because
she heard the abuse. It is clear from the record there was a "serious" problem in this case, as
perhaps best evidenced by the fact that J. had 38 fractures to her ribs when she was admitted
at Rady's, as well as serious other physical injuries, and the fact J.M. is suffering PTSD at
such a young age.
Moreover, as we have discussed the bond between mother and J.M. was similar to
that of a "friendly visitor," as noted by the Agency social worker who observed all three
visits between them leading up to the section 388 petition.
Finally, the third Kimberly F. factor also suggests it would not be in J.M.'s best
interest to order reunification services for mother (or to place J.M. with mother with
services). As noted ante, although the record shows mother was making commendable
21
strides in treatment, the record does not support a finding that mother had ameliorated the
problems that caused her to ignore the severe child abuse of J., which led Dr. Dully to
conclude J. was a battered child, and of J.A., and perhaps to a lesser extent, of J.M., by
Benjamin when she admitted knowing of the abuse and even hearing and witnessing it. We
thus conclude the juvenile court did not abuse its discretion when it summarily denied
without prejudice mother's section 388 petition because she did not make a prima facie
showing it would be in J.M.'s best interest to vacate the section 366.26 hearing and order
reunification services for her.
DISPOSITION
The order summarily denying without prejudice mother's section 388 petition is
affirmed.
BENKE, Acting P. J.
WE CONCUR:
HALLER, J.
McDONALD, J.
22
AI Brief
AI-generated · verify before citing
Holding. The juvenile court did not err in denying the mother's section 388 petition for reunification services or in setting a section 366.26 hearing, as the mother failed to provide sufficient evidence that reunification would be in the child's best interest or prevent reabuse given the child's severe trauma and the mother's lack of demonstrated insight.
Issues
Did the juvenile court err in denying the mother an evidentiary hearing on her section 388 petition?
Did the juvenile court err in denying the mother reunification services?
Did the juvenile court err in setting a section 366.26 hearing to select a permanent plan for the child?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“the juvenile court summarily denied without prejudice mother's section 388 petition, ruling she did not proffer sufficient evidence to overcome the "specific findings" it made at disposition”