Opinion
D073270
07-10-2018
In re E.B., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. ALICIA R., Defendant and Appellant.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. J514372D) APPEAL from an order of the Superior Court of San Diego County, Marian F. Gaston, Judge. Affirmed. Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
I.
INTRODUCTION
Alicia R. (Alicia) appeals the trial court's order denying her Welfare and Institutions Code section 388 petition in this dependency case involving her daughter, E.B. In her petition, Alicia requested that the court change an order permitting her to have supervised visitation with E.B., so as to permit her to have unsupervised visitation with E.B. The trial court denied the petition, ruling that Alicia had not demonstrated either that changed circumstances existed that warranted a change of the visitation order or that the change would be in E.B.'s best interests. We affirm.
Unless otherwise specified, all subsequent statutory references are to the Welfare and Institutions Code.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Alicia's prior dependency record and the removal of E.B. from her care
Alicia has lost custody of four other children as a result of child welfare cases. She has an extensive criminal, child welfare, and substance abuse history. E.B. was initially removed from Alicia's care in 2013 when Alicia tested positive for amphetamines during E.B.'s birth.
After reunifying with E.B., the trial court removed E.B. from Alicia's custody for a second time in April 2016. The removal occurred after Alicia got into a physical altercation with E.B.'s babysitter. Alicia took the babysitter's cell phone, punched the babysitter's eight-year-old child in the face with a closed fist, and fought with the babysitter. During the incident, a butcher knife fell out of E.B.'s stroller. Alicia made numerous incoherent statements to responding officers. B. The dependency
E.B. was placed with a relative caregiver, Alicia's niece, in June 2016. E.B. remained placed with this same caregiver throughout the dependency.
Alicia was incarcerated from the beginning of the dependency through March 2017, apparently on charges related to the incident that gave rise to the dependency. After her release from prison, Alicia began to have twice monthly supervised visitation with E.B. She was also permitted to call E.B. daily on the telephone. E.B.'s caregiver reported that Alicia often used inappropriate language during phone calls, and that she " 'went off' " on the caregiver in E.B.'s presence during an in-person visitation in July 2017. During another visit, according to the caregiver, Alicia "kept pointing to men outside [of a] restaurant and [telling E.B] they were all her father."
Alicia reported to the social worker in May 2017 that she was not a drug addict and that she used drugs only when she was feeling hopeless. According to the social worker, in May 2017, Alicia stated that she "probably [would] not do anything differently," when asked about the incident that led to this dependency. C. Alicia's section 388 petition
In September 2017, Alicia filed a petition pursuant to section 388 seeking to change the court's order permitting her to have supervised visitation with E.B. Alicia requested that the court change the order to permit "short [daytime] unsupervised visitation between [Alicia] and minor [E.B.] . . . ." Alicia stated that the changed circumstances warranting the change included that she was "engaged in services, out of custody, visiting regularly, working with the assigned Social Worker," and that she had "developed a strong bond with the minor . . . ." Alicia supported the petition with two letters from a community services organization stating that she was participating in a parenting program and had completed three of eight parenting classes. Alicia also attached to her petition a letter from a substance abuse program indicating that Alicia was participating satisfactorily in the program and that she had five negative drug testing results and zero positive results.
In addition, Alicia attached approximately 50 pages of Agency "Delivered Service Log" documents detailing "[a]ll [c]ontacts, [s]ervices & [v]isits," in the dependency case between August 1, 2017 and September 14, 2017. The logs detailed numerous disagreements between Alicia and E.B.'s caregiver. One contact, dated August 8, 2017, which appeared to be an e-mail from the caregiver's husband to the social worker, stated, "Alicia cusses during phone calls, sends insulting text messages to [the caregiver], and makes the visitation most difficult." Other log notes indicated that Alicia would frequently grow frustrated with E.B. during phone calls. Another note indicated that E.B. was "acting out" after visitations, and that E.B.'s acting out behavior included "lying that someone has hit or hurt her or inflicting scratches on herself . . . ." D. The Agency's response
The Agency filed a response to the petition, recommending that visitation continue to be supervised. The Agency supported this recommendation by supplying additional information with respect to Alicia's substance abuse issues, individual therapy, and anger management. The Agency noted that Alicia had been discharged from a substance abuse program in July 2017 for "refus[ing] to test for her program," and that a probation officer had found a methamphetamine pipe in her bed during an October 9 search. The report also noted that in July 2017, Alicia reported to her therapist that she had previously duct taped E.B. to a chair and that Alicia "d[id] not feel duct taping harmed [E.B.]." The therapist stated that Alicia lacked empathy for E.B., displayed narcissistic traits and distorted thinking, and was not credible. The report also detailed incidents in which Alicia continued to display an inability to control her temper, including with E.B. E. The hearing and the court's ruling
The same day that it filed a response to Alicia's petition, the Agency filed a status report for the scheduled October 25, 2017 18-month review hearing. In the status report, the Agency recommended that the court terminate Alicia's reunification services.
The trial court held an evidentiary hearing on the petition on October 25, 2017, at which Alicia and an Agency social worker testified. Alicia stated that she had been engaged in reunification services since being released from prison in March of 2017. Alicia explained that she attended an outpatient drug treatment program, that she had worked "a few times," with a "parent partner," and that she was engaged in individual therapy. Alicia also stated that she had supervised visitation with E.B. for two hours every two weeks and that a visitation supervisor had informed Alicia that the visits were "going good." In addition, Alicia indicated that she was able to have one telephone call with E.B. daily.
On cross-examination, Alicia stated that she had been sober since January 2013. She also indicated that she was uncertain whether she was on "step 3," or "step 8," of her drug and alcohol treatment program and that she was "not very positive" as to the nature of step 3.
The record indicates that Alicia told officers who responded to the April 2016 incident that gave rise to the dependency that she had used methamphetamine approximately two weeks prior to the incident.
During her testimony, the social worker stated that she continued to recommend that the court require Alicia's visitation to be supervised. The social worker explained that the primary basis for this recommendation was that Alicia had "not shown," her ability to manage her anger. The social worker also stated that Alicia had recently sent the social worker a recorded phone call with E.B. during which Alicia had become "argumentative" with E.B. and had not let E.B. speak. In addition, during the call, Alicia "put[ ] her daughter in the middle between the caregiver and [Alicia] and call[ed] [the] caregiver a liar."
At the conclusion of the hearing, the trial court denied the petition, ruling that Alicia had not demonstrated changed circumstances warranting a change in the visitation order, nor had she shown that it would be in E.B.'s best interests to permit Alicia to have unsupervised visitation with E.B. The trial court acknowledged that Alicia had made "heroic efforts," to stay in contact with E.B., and that she had also taken steps to address the Agency's other concerns with respect to her parenting. However, the court found that there had not been "a real openness to change," on Alicia's part. In support of this finding, the court noted that Alicia's therapist found Alicia's thinking to be "distorted, paranoid even." With respect to substance abuse, the court noted that Alicia was unclear as to her sobriety date and that she was "not that familiar," with the "steps," in her recovery program. In addition, the court noted the recent discovery of a methamphetamine pipe in Alicia's bed. The court also observed that it was only because of supervision that the court was aware of prior problems that had occurred during Alicia's visitations with E.B., including Alicia's "aggressiveness," and "cursing . . . ."
The record indicates that Alicia traveled a long distance to visit E.B., who was living several hours away from San Diego.
While this appeal was pending, the Agency filed a motion for judicial notice asking that we take judicial notice of a March 28, 2018 order terminating Alicia's reunification services and setting a section 366.26 hearing. We deny the motion since the Agency has not demonstrated the relevance of the order to the issues presented in this appeal.
III.
DISCUSSION
The trial court did not abuse its discretion in denying
Alicia's section 388 petition seeking unsupervised visitation with E.B.
Alicia contends that the trial court erred in denying her section 388 petition seeking unsupervised visitation with E.B.
1. Governing law and standard of review
Section 388, subdivision (a)(1), provides that a parent of a dependent child "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 of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court."
To obtain the requested modification, the parent must demonstrate both a change of circumstance or new evidence, and that the proposed change is in the best interests of the child. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181,189 (Justice P.).)
We review the denial of a section 388 petition for abuse of discretion. (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413.) "It is rare that the denial of a section 388 motion merits reversal as an abuse of discretion . . . ." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 522.)
2. Application
The trial court clearly did not abuse its discretion in determining that Alicia had not carried her burden to demonstrate that changed circumstances supported her requested change of the visitation order from supervised to unsupervised visits, or that the requested change would be in E.B.'s best interests. To begin with, in deciding whether to grant Alicia unsupervised visitation with E.B., the trial court could have reasonably considered Alicia's extensive child welfare, criminal, and substance abuse history, as well as the extremely serious and violent circumstances that led to the current dependency. (Justice P., supra, 123 Cal.App.4th at p. 189 [stating that a court may consider entire factual and procedural history of the case in ruling on a section 388 petition].) Against this backdrop, the trial court could also have reasonably determined that Alicia had not demonstrated that circumstances had changed sufficiently to warrant granting her unsupervised visitation in light of evidence that she was unfamiliar with the principles of her drug treatment program and had recently possessed drug paraphernalia. The court could also have considered the limited gains that Alicia had made during her individual therapy sessions. For example, in July 2017, Alicia told her therapist that she did not believe that her duct taping of E.B. had harmed E.B. According to the therapist, Alicia held this belief, in part, because Alicia had been duct taped to chairs as a child and, according to Alicia, she had not been harmed. In September 2017, Alicia's social worker wrote that Alicia's therapist told the social worker that Alicia's distorted thinking "could impact her daughter's safety and emotional well being because [Alicia's] stability is in question." In an October 1 report, Alicia's therapist wrote, "Client's distorted thinking and impulsive angry violent behaviors are serious considerations as they may impact her impressionable daughter negatively and do her emotional harm." The trial court could also have reasonably relied on evidence that Alicia continued to have difficulties controlling her anger during supervised visitation. These same considerations amply support the trial court's determination that changing the court's visitation order would not be in E.B.'s best interest.
Alicia's arguments to the contrary are not persuasive. While Alicia is correct that she "consistently participated in services and regularly visited [E.B.]," the record is clear that she had not demonstrated her ability to engage in unsupervised visitation of E.B. With respect to her substance abuse, while Alicia is correct that she "tested clean throughout the case," the trial court could have reasonably considered the evidence discussed above that demonstrated that she had not fully addressed her well documented and severe substance abuse problem. Alicia's selection of a few isolated quotations from her therapist's notes also does not demonstrate that the court abused its discretion in denying unsupervised visitation. This is particularly true given that, on October 1, 2017, Alicia's therapist wrote, "Client's attitude has been a complete turn around . . . from a positive cooperative personality to one of delusional thinking [and] strongly paranoid . . . ." Finally, while Alicia asserts that the fact that she has "difficulty controlling her anger at times," should not have prevented her from gaining unsupervised visitation with E.B., the trial court could have reasonably determined that such displays of anger warranted continued supervision of Alicia's visitation with E.B., particularly in light of the entire factual record of this case.
For example, Alicia included a quotation from a September 5 note in which the therapist wrote about the therapist's discussions with Alicia concerning the incident that led to the current dependency. The therapist wrote that Alicia "admitted she should have taken her daughter somewhere safe and then, without [E.B.] being present, confronted the woman. [Alicia] admitted she has been in real trouble since then and regrets her behavior, stating: I spent a year in prison and don't ever want to repeat that! I should never have hit her, just called the cops."
Alicia also noted that, on October 1, the therapist wrote that Alicia "is totally engaged in the sessions, listens well, pays attention, is respectful and pleasant . . . She does not become defensive when she is challenged and will use humor to lessen her own tension, very unlike what would be expected in someone with strong narcissistic traits."
As noted previously, the trial court held a hearing on the section 388 petition on October 25, 2017. --------
Accordingly, we conclude that the trial court did not abuse its discretion in denying Alicia's section 388 petition seeking unsupervised visitation with E.B.
IV.
DISPOSITION
The order denying Alicia's section 388 petition is affirmed.
AARON, J. WE CONCUR: NARES, Acting P. J. IRION, J.