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In Re F. H., A Person Coming Under the Juvenile Court Law. v. A. A

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


March 21, 2011

IN RE F. H., A PERSON COMING UNDER THE JUVENILE COURT LAW.
SACRAMENTO COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
A. A., DEFENDANT AND APPELLANT.

Super. Ct. No. JD230082

The opinion of the court was delivered by: Blease, Acting P. J.

In re F.H.

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

The juvenile court assumed jurisdiction over minor F.H. (born August 2009) as a child who was at risk of physical harm or illness from mother A. A.'s failure to protect her, and whose other siblings had been subject to abuse.*fn1 (Welf. & Inst. Code, § 300, subds. (b) & (j) [undesignated section references will be to this code].) It removed the minor from the custody of the parents. It ordered reunification services for father Christopher H., but denied them for A. A. because she had caused the death of another half-sibling through abuse or neglect, reunification services previously had been terminated after she failed to reunify with other half-siblings, and her parental rights over three half-siblings had been terminated. (§ 361.5, subds. (b)(4), (b)(10) & (b)(11).) She appealed from the judgment. (§ 395.) We dismissed her appeal pursuant to In re Phoenix H. (2009) 47 Cal.4th 835.*fn2 (In re F. H. C063573, (Apr. 28, 2010).)

In the meantime, A. A. filed a petition to modify the disposition. (§ 388.) She requested a return of F.H. under a plan of dependent supervision, or alternately the provision of reunification services. The juvenile court denied the petition, finding that there had not been any change in circumstances warranting relief. She appeals only on the issue of the denial of services. We shall affirm the order.

BACKGROUND

Prior dependency proceedings

1998: The juvenile court assumed jurisdiction over a half-sibling born in 1997, based on domestic violence in the home, A. A.'s substance abuse, abuse of an older half-sibling born in 1995, and the death at two months of a half-sibling born in 1998 while in her care. It terminated services after she failed to reunify. It returned him to A. A.'s custody under a plan of dependent supervision in 2000. However, in 2001 the juvenile court placed the minor with relatives appointed as his legal guardians without providing reunification services to A. A., after removing a half-sibling born in 1999 from her custody.

2001: The juvenile court again removed the half-sibling born in 1999 from A. A.'s custody, based on the minor's hospitalization with severe dehydration and hypoglycemia. It denied services to A. A. and terminated her parental rights over the minor in 2002.

2006: The juvenile court assumed jurisdiction over a half-sibling born in 2004 based on abuse and medical neglect of her siblings, domestic violence, and A. A.'s unstable mental health. The juvenile court denied services and terminated parental rights in 2006.

The juvenile court also terminated parental rights in 2006 over the half-sibling born in 1995 without providing services. It had previously terminated services in 1999 and placed him in long-term foster care, but had returned him to A. A.'s custody in 2005 under a plan of dependent supervision.

Jurisdictional/dispositional evidence

F.H. was placed in protective custody with the paternal grandmother three days after birth, based on A. A.'s lengthy dependency history. Following the initial hearing, the court returned the minor to her parents in August 2009 (who were then living together) under intensive supervision. Although A. A. had tested positive for marijuana early in her pregnancy, both mother and child tested negative for any illicit substances at birth. By the end of September, F.H. had gained 12 ounces; the average for weight gain was closer to two pounds. After placement with the paternal grandmother in September 2009, F.H. gained over two pounds by late October. Nonetheless, there were concerns F.H. might be failing to thrive, which would require intervention "swiftly and urgently."

The parents had begun to date in 2005, but Christopher H. did not move in with A. A. until after her parental rights to her remaining two children were terminated in 2006. Before then, he had gotten along well with the older minors. Christopher H. had concerns about her care of F.H., after seeing A. A. interact with the children of other people and having seen her fail to check the temperature of F.H.'s bath or bottle. A. A. also became easily agitated in front of F.H. when Christopher H. would attempt to intervene in F.H.'s care. Christopher H. indicated that his romantic bond with A. A. had been at an end even before the pregnancy and he wanted to move out, but he wanted to maintain his relationship with his daughter.

Both parents described an incident in which A. A. had confronted Christopher H. with a knife when angry at him. Neither apparently considered this to constitute an incident of domestic violence. A. A. also had episodes of domestic violence with the fathers of two of her other children, as well as an abusive childhood.

The paternal grandmother expressed doubts about A. A.'s mental capacity for caring for F.H. (treating the infant like a doll), and odd behaviors that the grandmother attributed to the failure to take medications for a diagnosed bipolar disorder. A. A. became extremely agitated if the grandmother offered suggestions about proper care of the minor when she observed something amiss.

A case worker who had been working with A. A. during her pregnancy found that she had a good bond with F.H. and provided good care during home visits. However, she too had the independent impression that A. A. treated F.H. as if she were a doll, and did not seem to understand the infant's needs. A. A. also did not seem to retain information from her parenting classes.

The social worker was disturbed that A. A. had slept in the same bed with one of the older half-siblings while breast-feeding him, after the suffocation death of the other half-sibling placed in bed with her years earlier. There would not be any way of determining whether A. A. persisted in this practice (short of supervising her 24 hours a day). The social worker did not believe that A. A. had remediated the problems giving rise to the removal of all of her previous children, despite participation in numerous programs, because she did not seem to have the ability to apply the knowledge (other than learning how to manipulate the dependency system). The new programs in which she had been participating are simply the same ones that had not previously been effective. Denying services to A. A. would not be detrimental to F.H., given her young age. If Christopher H. established a residence separate from A. A. and was successful in services, there would be consideration of placing F.H. with him.

A. A. had undergone an involuntary commitment in 2004, and been diagnosed with a bipolar disorder in 2006. However, under the recommendation of her doctor, she stopped taking her medications during her pregnancy. Her doctor did not observe any resulting signs of mania, depression, or psychosis, and did not see any reason for her to resume taking her medication. A new psychiatrist evaluated her in September 2009 and did not discern any basis for the diagnosis of bipolar disorder.

A. A. submitted certificates of completing various parenting and relationship programs on her own initiative during 2009 (which were further additions to a "large folder full of certificates" dating back to 1998 that she had shown the social worker). She admitted that she had disciplined her oldest child with a belt. She attributed her earlier parenting problems to substance abuse. However, she asserted that other than the use in 2009 of marijuana before she was aware she was pregnant, she was no longer using any sort of drugs, including prescription medications.

At the combined hearing, the juvenile court declined to sustain allegations of domestic violence between the parents, or of Christopher H. abusing older half-siblings. It sustained the remaining allegations against A. A., and an additional allegation (added in the amended petition and thus not included in the proposed findings) that F.H. failed to thrive in both parents' care and had an older half-sibling who had also failed to thrive in A. A.'s care. The court stated, "This is a horrible history of abuse and neglect of children dating back to 1998 . . . . [A. A.] received lots of services, numerous services, just too many to even mention and eventually lost parental rights to those other children. [¶] So this case just cries out for bypass, in my opinion . . . ." The juvenile court issued its judgment in November 2009.

Section 388 evidence

A. A. filed her section 388 petition in January 2010. She asserted that she had completed a year of sobriety, had engaged in reunification services on her own initiative, had participated in "rigorous" outpatient services for substance abuse, and had an ongoing psychiatric consultation that did not believe she had a bipolar disorder requiring medication (though her new psychiatrist did not have access to her old records). In her March 2010 pretrial statement, she included more recent positive update reports.

In a memo responding to the petition, the social worker acknowledged A. A.'s continuing efforts. It did not change the social worker's opinion regarding A. A.'s abilities to parent adequately. Moreover, despite his previously expressed intent to move out, Christopher H. had continued to live with A. A. and law enforcement had responded to calls from their home eight times since October 2009 claiming domestic violence, although neither of them had any visible injuries or made any charges. If F.H. had been older, the social worker might have assessed the situation more favorably, but her young age and the continued issues between her parents meant that it was not in F.H.'s best interest to return home.

The paternal grandmother filed a caretaker information form in which she asserted A. A. was emotionally unstable and quick to anger in her dealings with the father and the paternal grandmother. She demonstrated disrespectful and uncooperative behavior. The parents also continued to have relationship issues, and the grandmother did not think they could provide a safe environment.

The psychiatrist treating A. A. (who was the medical director of the facility) testified at the hearing on the petition. He gave the opinion, after monthly evaluations of her behavior without medications since September 2009, that while she suffered from an adjustment disorder (emotional reactions to stress) she was not depressive or in need of medication for bipolar disorder, seemed to have her emotions adequately in check, was high-functioning, and was highly motivated to change. When he asked A. A. the reason for her continued failures to reunify (despite numerous services and her present high-functioning appearance), she cited her previous substance abuse. It was not part of his function to specifically assess her actual ability to parent.

A. A. also testified. She was now living alone (after obtaining a restraining order against the father) and attending community college. She reiterated the various programs in which she was participating.

In its ruling, the juvenile court did not believe that her psychiatrist had a full enough picture of A. A.'s history after four sessions to evaluate her functioning. It also acknowledged the potential for bias in the report from the paternal grandmother. While the court agreed that there were the beginnings of change in A. A., this was not sufficient given her lengthy record. It was not condemning her for past events, but these were still guideposts for future behavior. She had successfully completed programs before, but this had not changed the outcomes. It therefore could not find that it was in F.H.'s best interests to grant the petition.

DISCUSSION

A. A. complains that the juvenile court did not give her any credit for manifesting "a developing maturity." She was participating in parenting and relationship services of her own accord and had successfully addressed her drug-abuse problem. Admitting her problems with domestic violence had continued, she focuses on her decision to end her relationship with Christopher H. and obtain a restraining order against him. She then reargues the evidence she submitted in support of her petition before concluding that she had "demonstrated a change in her circumstances, even though the court found otherwise," also faulting the court for engaging in a simplistic comparison between her household and the grandmother's in determining F.H.'s best interests.

In seeking to modify a juvenile court's order, a parent must establish at the threshold a change in circumstances, and then must demonstrate that the proposed modification would be in the child's best interests. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) We review the juvenile court's decision for an abuse of discretion, established where the choice is either arbitrary (id est, not based on the facts) or unreasonable (the latter of which can be found short of a showing of utter irrationality). (Ibid.; City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1298.)*fn3 Based on the facts before it (which we have set out at some length), the juvenile court's ruling was neither arbitrary nor unreasonable.

At the time of the dispositional judgment, A. A. had been getting good reviews in the abstract context of the various services of which she was motivated to take advantage on her own. Nonetheless, she was not applying them effectively in her actual parenting of F.H., as she could not seem to grasp the reality of the infant's needs, committed fundamental errors in caring for her, and was apparently feeding her inadequately (in echo of her previous medical neglect). Nor, for that matter, was she able to apply the lessons of her relationship classes, as issues of domestic violence continued to flare up between her and Christopher H. until she ultimately obtained a restraining order (which is not a guarantee that the dysfunctional liaison with the father of her child was truly at an end). If the relationship classes had not helped with Christopher H., this raised questions about whether A. A. had broken from her history of domestic violence. Therefore, garnering additional good reviews did not represent any fundamental change since the prior judgment in her inability to apply her lessons that had persisted over the years. (Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 73 [recent success not a change of circumstance in light of past failures].) This is not, as A. A. would have it, a focus on the past. It is assessing the weight to give her present good intentions in light of her past failures.

As for her mental and emotional stability (whether or not a bipolar diagnosis was appropriate), the juvenile court was not obliged to agree with her psychiatrist's opinion that was formed in the artificial context of office consultations, far removed from the stresses of parenting. It could instead give credence (even allowing for self-interested bias) to the anecdotes from Christopher H. and his mother regarding A. A.'s outbursts when frustrated, which were of a piece with her past history of instability with which the psychiatrist was not familiar. His opinion thus did not present any change in circumstances.

The juvenile court did not ignore her efforts to maintain sobriety or her self-reported educational endeavors, which might indeed reflect a new-found maturity at the time of the petition to modify. However, these do not of themselves remediate the fundamental parenting and relationship problems that led to these dependency proceedings; at best, they are an indication of an ongoing evolution in her efforts to address them, and it was not an abuse of discretion not to give them determinative effect.

As A. A. failed to establish a change in circumstances, we need not discuss at length whether providing services to her would be in the best interests of F.H. In any event, after the bypassing of reunification services, a child's best interests focus on the need for stability and continuity. (In re Ethan N. (2004) 122 Cal.App.4th 55, 67 [Ethan N.].) The comparative strength of the minor's bonds with the parent and the caretaker is also a factor. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.) A parent who has previously caused the death of child must overcome an "enormous hurdle" that reunification efforts would be in the best interests of another child. (Ethan N., supra, 122 Cal.App.4th at p. 68.) The record does not contain any evidence that F.H. has any particular bond with A. A. or that a goal of reunification would promote stability and continuity for F.H., such that this the "rare" case in which reunification efforts would be beneficial for F.H. (Ibid.)

DISPOSITION

We incorporate the reporter's transcript in case number 63573 by reference. The order denying the petition to modify is affirmed.

We concur: HULL , J. ROBIE, J.


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