California Court of Appeal Aug 7, 2015 No. E062074Unpublished
Filed 8/7/15 In re S.J. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re S.J. et al., Persons Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E062074
Plaintiff and Respondent, (Super.Ct.No. INJ1100162)
v. OPINION
D.B. et al.,
Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. Lawrence P. Best,
K.M. (born in June 2010), and C.J. (born in May 2011) from their home. The B.’s
contend the juvenile court abused its discretion in denying their petition because it did not
fully understand and consider the testimony of their therapist and failed to consider the
relationship between them and the children. We find no error, and we affirm.
II. FACTS AND PROCEDURAL BACKGROUND
The three children became dependents of the court in 2011, after plaintiff and
respondent, Riverside County Department of Public Social Services (DPSS), filed a
petition alleging their biological mother neglected their health and safety and failed to
provide necessary medical care. The children were placed in foster care in the home of
the B.’s. Reunification was unsuccessful, the mother’s parental rights were terminated in
January 2013, and a permanent plan of adoption was ordered. The B.’s were designated
as prospective adoptive parents.
In November 2013, allegations of physical abuse and general neglect had been
made against the B.’s. It was alleged that D.B. had given the children “whoopings” to
discipline them and that he used a “pancake flipper” to hit them. The B.’s denied that
they hit the children. The allegations of physical abuse were determined to be unfounded
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and the allegation of general neglect was found to be inconclusive as to inappropriate
discipline.
The B.’s were granted de facto parent status in January 2014.
In April 2014, K.M. was suspended from his Head Start school because of his
behavior. A referral was submitted for therapy for K.M. The foster family agency social
worker informed DPSS that K.M. had seen the therapist before, and he had informed her
that “there was nothing wrong with [K.M.] and it was a parenting issue.”
In a meeting with the social worker on April 17, 2014, G.B. told the social worker
that K.M. continued to act out, and she was unwilling to move forward with the adoption.
She had failed to provide a certificate of completion of parenting class, and the home
study was not complete. G.B. stated she was not happy that K.M. had been referred to
the therapist who had previously stated he did not need therapy, and she asked that he be
assigned to another counselor. G.B. stated that K.M. was disrespectful and defiant at
home. G.B. stated “she ‘wants money’ because it’s going to cost a lot [sic] to raise him
. . . .” In a later telephone call, G.B. told the social worker that DPSS was “not doing
anything to help with [K.M.]”
Later that month, K.M., then age three, climbed over or through a fence into a pool
and nearly drowned. He was taken to the hospital, but he suffered no injuries, and his
condition was not life threatening. G.B. provided varying accounts of the incident. She
said K.M. had been playing alone in the backyard while she was on the telephone; she
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said she had thought he was inside when the incident occurred; and she said she was
cooking and paying bills when the incident occurred.
Because of concerns over the children’s supervision, they were transported to a
new foster home. En route, they disclosed that D.B. and G.B. had used corporal
punishment on them. K.M. used profanity, which he claimed to have learned from D.B.
C.J. and K.M. disclosed that the B.’s “whooped” them, but S.J. denied being whooped.
In the new foster home, K.M. scratched the new foster father, cursed, urinated on himself,
smeared feces on the bathroom walls, threw and broke things, slapped and hit his
siblings, and pushed another child down the stairs. The new foster family requested his
removal from their home.
S.J. had a mild expressive language delay and was receiving speech therapy. Her
behavior was age appropriate, and she was healthy. K.M. was assessed at the Riverside
County Mental Health 0-5 program in May 2014, and he was diagnosed with an
adjustment disorder. He was extremely aggressive, and the therapist indicated he was
suffering from trauma. He was placed in a Multidimensional Treatment Foster Care
home. C.J. did not have any developmental delays. In a previous foster home, he
mimicked K.M.’s behaviors, including using foul language. He had adapted to his
current foster placement.
Following its investigation, DPSS concluded: “Based upon information gathered
during the investigation process, it is believed that [K.M.] managed to climb the fence
surrounding the backyard pool on his own, and jump into the pool. [G.B.] responded
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appropriately to the incident, (removed [K.M.] from the pool and ensured he received
immediate medical attention), and medical staff concluded that [K.M.] suffered no
medical ailments as a result of the incident. However, the aforementioned issues
pertaining to supervision and discipline are very concerning. It is also concerning that
the children have lived in the [B.’s] home since infancy and exhibit such behavioral
issues at their young ages. As a result, this investigation will be closed as Substantiated
for General Neglect.”
At a hearing in July 2014, the juvenile court determined that removal of the
children from the B.’s home was appropriate.
In July 2014, the B.’s filed a petition under Welfare and Institutions Code section
388 alleging a change in circumstances that would justify changing the May 2014 order.
The B.’s alleged they had completed a parenting class, had made improvements to make
the pool area safer, and had taken a course dealing with children with special needs.
They alleged the proposed change was in the children’s best interest because the children
were bonded to them and would benefit from being parented by them. They attached
certificates showing that both D.B. and G.B. had completed 12 sessions of a parenting
skills course between January and March 2014; a notice of a site visit by a child care
licensing office representative on June 26, 2014, stating that no regulatory violations had
been observed; notices that the pool fencing improvements complied with code
requirements; and a certificate showing that G.B. had completed training on dealing with
special needs children in January 2014.
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A hearing was held on the petition in September 2014. The B.’s presented
testimony from their therapist, Wanda Cooper, a trained marriage and family counselor
who had completed doctoral studies in clinical psychology. Starting in August 2014, the
B.’s had attended four or five classes that Dr. Cooper had taught on subjects such as
foster parenting and child traumas. The B.’s sought couples therapy from Dr. Cooper
because of the removal of the children from their home, which they said had been
because of their neglect and lack of supervision. They accepted responsibility and
expressed remorse for the incident. During the therapy, the B.’s established the goals of
putting a safety plan in place for the children, enhancing their parenting skills, improving
their communication about issues concerning the children, and anger management. The
B.’s had been in therapy with Dr. Cooper for three weeks. Dr. Cooper stated her opinion
that the B.’s could provide a safe home for the children; her opinion was based on their
honesty about the incident and their seeking out training to improve their parenting skills
which expressed their love of and commitment to the children. She stated that her
therapy with the B.’s was “[v]ery early in the process.” Dr. Cooper had not read the
social worker’s reports, and she had never met the children. She was aware that an
allegation of corporal punishment had been made, and the B.’s had denied using corporal
punishment; however, she never asked them if they had hit or spanked the children.
G.B. testified that she had been in therapy with a different counselor before Dr.
Cooper, but had discontinued because it was not a good fit. G.B. said she had taken
about 16 parenting classes, and she now understood that K.M. showed traits of fetal
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alcohol syndrome. The classes and her therapy had given her insight into how to deal
with his behavior and that of the other children. She described the added safety measures
in the home, including extra locks out of the children’s reach and an alarm that sounded
when the door to the backyard was opened. She said she had been preparing lunch when
K.M. had gotten into the pool. D.B. testified that a brick wall that had partially blocked
the view of the pool had been removed and he had added the back door alarm. He stated
that therapy with Dr. Cooper had been beneficial and had improved his parenting.
The juvenile court commended the B.’s for taking classes, but pointed out that
they had been in therapy with Dr. Cooper for only three weeks and were very early in the
process. Although the B.’s had denied using corporal punishment, Dr. Cooper talked
about their use of corporal punishment. The court concluded: “Based on the standard, I
do not believe there are changed circumstances, and I do not believe it is in the children’s
best interest.” The court therefore denied the petition.
III. DISCUSSION
To succeed on a petition under Welfare and Institutions Code section 388 to
change a previous court order, the petitioner must prove by a preponderance of the
evidence both (1) a change in circumstances or new evidence and (2) that the requested
change is in the child’s best interest. (Welf. & Inst. Code, § 388; In re Daijah T. (2000)
83 Cal.App.4th 666, 672; In re D.B. (2013) 217 Cal.App.4th 1080, 1089.) We review the
juvenile court’s ruling on the petition under an abuse of discretion standard. (In re
Hector A. (2005) 125 Cal.App.4th 783, 798.)
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The children were removed from the B.’s home because of a lack of supervision
that culminated in K.M.’s near drowning. The evidence also indicated the B.’s had used
corporal punishment on the children, and K.M. had behavioral issues while in the B.’s
care and after being removed. The B.’s had already completed the parenting classes
before the May 2014 hearing at which the children had been removed from their home,
and G.B. had also completed the special needs training class before that date. Thus,
completion of the classes did not constitute a change in circumstances. Moreover, while
the B.’s established that they had made improvements to the safety of their home, those
physical improvements did not address the concerns about lack of supervision. Although
the B.’s had attended three counseling sessions with Dr. Cooper, the juvenile court found
Dr. Cooper’s testimony inconsistent: she reported that they were very early in the
process of therapy, yet she felt comfortable that the children could be safely returned.
The B.’s argue that the juvenile court did not understand or fully consider Dr.
Cooper’s testimony because the juvenile court seemed to indicate that it believed “time
alone was the sole indicator of progress in counseling.” However, Dr. Cooper explicitly
stated that the B.’s were very early in the process of therapy, having completed only three
weekly sessions. Moreover, Dr. Cooper’s information about the children was all derived
from what the B.’s told her; she had never met the children and had never read the social
worker’s reports. Although she was aware of an allegation of corporal punishment, she
never asked the B.’s if they hit or spanked the children.
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We find no abuse of discretion in the juvenile court’s assessment of the credibility
of the testimony presented at the hearing.
The B.’s also contend the juvenile court “failed to consider the extensive
relationship” between them and the children and failed to articulate any factors
considered in concluding that the requested change was not in the children’s best interest.
However, the trial court had already determined that the B.’s had not shown a change in
circumstances. The B.’s had the burden of proving both prongs of the test to justify a
change in a prior order. (In re D.B., supra, 217 Cal.App.4th at p. 1089.)
IV. DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
KING J.
We concur:
McKINSTER Acting P. J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The juvenile court did not abuse its discretion in denying the appellants' Welfare and Institutions Code section 388 petition, as the appellants failed to demonstrate a sufficient change in circumstances or that returning the children to their care was in the children's best interest.
Issues
Did the juvenile court abuse its discretion in denying the appellants' section 388 petition for failing to find changed circumstances?
Did the juvenile court fail to properly consider the testimony of the appellants' therapist?
Did the juvenile court fail to consider the relationship between the appellants and the children when determining the children's best interest?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Based on the standard, I do not believe there are changed circumstances, and I do not believe it is in the children’s best interest.”
“We find no abuse of discretion in the juvenile court’s assessment of the credibility of the testimony presented at the hearing.”