In re I.B.
After carefully reviewing the record, while it is a close case, we cannot say the trial court abused its discretion. We affirm the order granting Mother’s
I. The Previous Case
In May 2014, the parents began participating in voluntary services. Mother, who is legally blind, was a non-minor dependent through extended foster care. She lived in an apartment with Father and newborn A.B. She and Father received WrapAround’s services2 for a year including domestic violence classes, anger management classes, parenting classing, and couples’ therapy. The case closed in January 2015.
II. The Current Case
In February 2017, Father called the police to report Mother attacked him while he was holding then seven-month-old I.B. He alleged Mother was angry and threw a baby monitor at his head, causing a laceration that bled. A.B., who was then two-years old, witnessed the domestic violence. The police arrested Mother, issued an emergency restraining order for Father and the children, and notified SSA. Father declined to press charges or extend the restraining order. Mother moved back into the apartment with Father and the children.
Soon thereafter, the social worker requested a protective custody warrant to remove the children from their parents’ custody after speaking with Mother’s social worker, Monica Wilson, who was part of the Non-Minor Dependents Extended Foster Care Program. Wilson reported Father was not supposed to be living in the apartment with Mother. Wilson stated the parents had ongoing issues with domestic violence, but Mother’s disability made Mother feel she needed Father’s help to care for the children. When the couple was receiving WrapAround’s services, staff noted Father would push
Before seeking the warrant, the social worker also interviewed the parents. Father stated Mother often accused him of infidelity, and this was the trigger for many of their arguments. The social worker noted Father was appropriate, loving, and patient with the children. A.B. hugged Father throughout the entire interview. Mother reported Father was verbally abusive and constantly made her upset by saying he was going to find someone else to be with. She reported Father had previously thrown things. Mother admitted she hit Father in front of the children. Both parents wanted to resolve their issues and agreed to a safety plan.
Less than a week later, the social worker took the children into protective custody after receiving additional reports of domestic violence and that the home was unsanitary. Specifically, the social worker claimed the parents were not properly throwing away soiled diapers and dog feces. SSA prepared a petition alleging the children were at risk of harm (
At the detention hearing, the court determined the children were at risk of harm and detained them in a group home. The following month, the social worker
In April 2017, the court held a combined jurisdiction/disposition hearing. It determined the petition’s allegations were true and removed the children from their parents’ custody. The court ordered the parents to participate in SSA’s recommended reunification services and ordered monitored visits.
In the social worker’s next report, prepared in July 2017, she recommended continuing the six-month review hearing. A.B. continued to exhibit “behavioral challenges” and he was referred to counseling. In just two months, A.B. had 13 Special Incident Reports (SIRs) and the social worker was concerned about his development. The social worker was having difficulty placing the siblings together in a foster home and she asked Mother if the children could be separated for future placement. Mother was not supportive of this plan.
The social worker reported that although Mother was participating in court-ordered services, Father was not. The social worker believed Mother needed an additional parenting class because she was struggling with A.B.’s behavioral challenges. On two occasions, Mother pushed A.B. because he was being aggressive with I.B. while she was holding the infant.
Several months later, in October 2017, the social worker recommended the court continue reunification services. The children moved to a foster home, however, the foster mother requested removal in less than one month due to A.B.’s aggressive behavior. The children were moved into another group home, the Tustin Family Campus (TFC). A.B. was described as being aggressive towards other children, “specifically his
The social worker noted the parents were making moderate progress with their reunification case plans. Mother completed the PEP, a parenting class, and attended counseling. Father was not participating in services but was employed and visited the children regularly. He and Mother were no longer living together. The social worker concluded the parents lacked insight because they asked for unsupervised joint visits even though they were unable to address their domestic violence issues or A.B.’s aggression. She noted Mother was unable to care for the children because she did not understand the following: (1) how her relationship with Father has impacted the children; (2) how her actions led to SSA’s intervention; (3) how to control her anger; or (4) how to develop skills to address A.B.’s negative behavior.
The court ordered additional reunification services, as well as a psychological evaluation of Mother because her therapist expressed concern about her mental health. In an interim report, the social worker stated the parents were no longer visiting the children together. During a visit in November 2017, Mother hit Father and he requested future visits be without Mother. Mother said she was doing better and taking her medication. She claimed Father told A.B. to hit Mother like she had hit Father. The social worker noted Mother participated in domestic violence services but was struggling to manage her anger. As for Father, the social worker stated he was not visiting the children for as much time as was permitted by the court’s order.
The social worker filed a report in February 2018, marking one year of these dependency proceedings. She noted the psychologist completed Mother’s psychological evaluation and diagnosed Mother with having a mild intellectual
At the end of March 2018, the social worker prepared a report for the 12-month review hearing and recommended additional family reunification services. The parents were participating in services but there were concerns about Mother’s ability to respond to certain situations and separate permanently from Father. Mother’s therapist opined Mother lacked insight on how she could manage the children alone or respond if they had tantrums. The social worker noted Mother completed two parenting programs and showed improvement with her parenting skills. Both parents were consistently visiting the children 11 hours each week and acting appropriately. Although the reports lacked specific details about Mother’s positive interactions with the children, the social worker reported Mother usually arrived early and was observed playing games, modeling how to play, and singing and reading to the children. She kissed them, changed their diapers, rocked I.B. to sleep, comforted A.B. when he fell, ate with them, played catch, taught them manners, showed A.B. how to wash a carrot and his hands, told the children she loved them, and danced with I.B. Mother would ask the caregivers if the children had eaten and she brought them food and presents. The reports contained detailed accounts of Mother’s struggles in disciplining A.B., her difficulty keeping track of the
The social worker reported A.B. was participating in counseling and his therapist noted he was making mild progress. Then three-year-old A.B. would get overexcited when it was noisy, and he was not potty-trained. He did not like to flush the toilet. He would crash into others at the group home, whine to get attention, and displayed aggression towards animals. In contrast, the social worker stated there were no concerns about I.B.
A few months later, in May 2018, the social worker reported Mother completed individual counseling and the therapist was not recommending additional sessions. The therapist explained Mother had not made progress because she was often argumentative and in denial about her issues. The social worker noted Mother and Father started joint counseling and they wanted to reunify for the children’s benefit.
Mother was on a waitlist for a parent mentor from the Braille Institute and to complete a second in-home parenting program. Mother continued to visit the children at New Alternatives on Tuesdays and Thursdays. She fed the children and “engaged with them.” In April 2018, SSA approved one hour unmonitored visitation for Mother in a separate smaller room at the New Alternatives Campus. The social worker stated that if Mother did well, she would increase the time and permit Mother to take the children to a different location. The social worker noted there were plans to have Mother visit the children at their group home, but the home rejected this plan due to staffing issues. To avoid losing track of her children or holding an unrelated child, Mother was instructed to use bells to locate her children. Mother also dressed them in dark clothing to help her locate them.
The social worker reported A.B.’s ability “to follow instructions and accept decisions” was improving with the help of his group home staff. He was communicating
In May 2018, the social worker visited Mother at home. She observed the rooms were clean and “free of health and safety hazards.” Mother was appropriate with the children during visits and requested additional unsupervised time. Mother reported she would benefit from a guide dog, but the process involved traveling to the Bay Area for three weeks, and she did not want to miss visits with the children.
In June 2018, the social worker learned the parents had been living together for a month, and Mother was pregnant. Because Father was living at the house, Mother was at risk of losing the housing. Mother’s landlord reported Father yelled obscenities at Mother and was told to leave on a regular basis. On one occasion Father pulled Mother’s hair and called her names. The police had once been called to investigate following a verbal argument. The therapist terminated the joint counseling sessions due to Father’s lack of attendance. The therapist noted Father had unaddressed power and control issues. Mother later disclosed Father was telling her what to say during conjoint therapy. Mother completed her batter’s treatment program, however, the provider wrote Mother’s skill level was impaired and without continued support she may return to her past behaviors.
The court continued services and scheduled a review hearing for August 2018. It ordered that the parents maintain separate housing and participate in joint therapy “for parenting purposes.” A new social worker was assigned to the case.
The couple did not comply and continued to live together. Mother received an eviction notice. Mother attended one of Father’s unsupervised visits at the park to show the children her new service dog. In addition, the social worker caught Mother texting Father after she agreed to stop contacting him.
During her visits with the children, Mother continued to struggle with addressing A.B.’s tantrums and aggressive behavior. During one visit in June 2018, the social worker observed A.B. eating his own feces while I.B. was spreading feces on the floor “during a diaper change, while [Mother] was focused on talking about [Father].” During I.B.’s birthday party, A.B. pushed I.B., causing him to fall back and hit his head while they were sitting next to Mother.
In an addendum report, prepared in September 2018, Mother reported she believed A.B. was doing better because he was not hitting her as often and he made a friend at the visitation center and he did not hit his new friend. Mother claimed the visits were going well and the children enjoyed playing, watching television, and sharing meals with her. Mother noted she often baked and made lemonade with the children. However, there were two troubling instances during visitation when A.B. was naked due to a diaper change. On one occasion, he sat on I.B.’s face and a different time put his penis on I.B.’s face. The social worker also reported Father stated Mother served him with a restraining order, and they were no longer in a romantic relationship.
The juvenile court held the 18-month review hearing on September 25, 2018. It determined the parents had made minimal progress with their case plans and scheduled a
Ordinarily, the permanency hearing takes place and concludes within a few months after the court terminates reunification services. In this case, the hearing originally scheduled for January 16, 2019, was not completed until the following year, January 28, 2020. The delay was caused in part due to SSA’s inability to locate prospective adoptive parents for the boys due to A.B.’s behavioral issues.
We take a moment to briefly summarize the instability the boys have experienced for the past three years in four different placements, because it is relevant to
During the year of services provided before the permanency hearing, the social worker filed multiple reports about the status of the family. As for A.B., his behavioral problems only minimally improved. In November 2018, the social worker
Mother’s therapist, Jane Canseco reported Mother attended sessions regularly, she was highly motivated to reunify, and she was resolved to keep away from Father. Mother had “rekindled healthy relationships with old friends from high school and they [had become] a support system for her.” Canseco stated Mother developed more self-esteem and self-hope for herself. However, Father’s therapy was terminated because he was uncooperative and combative.
The parents continued regular visits with the children but struggled with A.B.’s behavioral issues. Mother never missed a visit and saw the children for six hours on Tuesdays and five hours on Thursdays. The social worker reported Mother always arrived to visits on time and with food for the children. She interacted with them by playing and doing activities. Frequently, A.B.’s physically aggressive behavior made it difficult for Mother to interact. She attempted to disciple A.B., by putting him in time-outs, but these appropriate techniques often made the tantrums worse. She allowed herself to be slapped in the face and pushed. Staff noticed Mother did not always use her eyeglasses or put bells on the children to ensure their safety.
In February 2019, Father filed a
In her petition, Mother described visits with the children, where she is responsible for all their needs for a lengthy period of time (six hours on Tuesday and five hours on Thursday). Finally, Mother explained it would be in the children’s best interests to live with her because she was no longer in a domestic violence relationship and they were “extremely bonded.” The court determined there was prima facie evidence for a hearing on both petitions and scheduled them to take place the same day as the permanency hearing.
In an addendum report prepared at the end of March 2019, the social worker noted A.B. was physically aggressive towards I.B. and there was a growing concern about I.B.’s safety. The following month, the foster parents reported I.B. had started to retaliate against his brother and was also instigating physical aggression. The foster mother reported A.B. was more aggressive at school and during visits with his parents. The social worker noted Mother continued with counseling and the therapist noted she was doing well.
When the funding for therapy ceased, the therapist’s request for an extension was denied. The social worker reported A.B. continued to be aggressive towards his younger brother, especially when I.B. received attention. In school, A.B. started to become aggressive with the other children. His teacher reported that whenever she asked A.B. to do work he would act out by walking around the classroom and screaming he does not want to do the work. In June and August 2019, the social worker reported Mother was not using her special eyeglasses and not consistently using bells on the children.
In September 2019, A.B. was suspended from school for two days due to aggressive behavior towards his classmates and the teacher. The school developed a “section 504 plan”4 for A.B. which shortened his school schedule (8:00 a.m. to 11:00 a.m.) and provided him with the assistance of a special one-on-one aide.
The court took 14 days to consider evidence and argument related to the parents’ modification requests, and due to continuances, the hearing lasted from April 2019 to January 2020. The court considered testimony from Mother, her therapist, Mother’s mentor, Mother’s youth support specialist, the foster mother, and the social worker.
Amy Carrillo, a youth support specialist at the Orangewood Foundation, stated Mother was one of her clients. She would help Mother obtain needed services, housing, and transportation. She saw Mother approximately three times a month but had not observed her with the children. She stated Mother was employed and applied for transitional living services.
Michelle Koontz, a volunteer mentor at Orangewood Foundation, stated she had mentored Mother for three years. She visited with Mother two to four times per
In addition, Koontz joined Mother on approximately 10 supervised visits. She was never concerned for the children’s safety. She opined A.B.’s behavior had become worse after he was removed from Mother’s care. She explained he would throw temper tantrums anytime he was told to do something. She saw staff members intervene when A.B. would not listen to Mother. She also observed Mother losing track of the children. She did not see the children being aggressive towards each other. Koontz concluded now that Mother was 21 years old, she had matured and was more responsive to help and guidance from others.
Mother testified she had been legally blind since the fourth grade and glasses did not help her vision but rather created stress and pain. She claimed her doctor told her to stop wearing the glasses because they were damaging her eyes by drying them. Mother stated she could take care of her children and meet their needs. She was the primary caregiver before they were detained because Father worked and would not come home until late at night. She stated that when she was living at a group home, A.B. was a baby, and staff from the Braille Institute taught her how to clean, feed, bathe, and cook for her baby and other parenting skills.
Mother understood the children were removed from her care because they were being exposed to a harmful cycle of domestic violence. After attending anger management programs and a batterer’s treatment program, Mother claimed she had
Mother obtained a temporary restraining order but could not attend the hearing to make it a permanent order because she was dealing with extreme eye pain requiring hospitalization. Mother reported Father had shown up twice at her visits and he was texting her until she blocked his messages.
Mother testified she attended individual counseling once a week, working on how to truthfully and better communicate with others, and better understand how domestic violence impacted the children. Mother wanted to continue therapy. Mother also discussed the reason why monitored visits with the children were difficult, especially when they were not wearing bells. The visitation room was large and was occupied by approximately 10 families, each having multiple children. During unsupervised visits, she was in a separate room and this less crowded arrangement also made A.B. less anxious and aggressive. Mother stated visits in the smaller room were preferable because the children listened to her and would not fight. She believed A.B. would become anxious when they were in a crowd and would ask to go outside, but this was not possible due to lack of staffing to supervise. Mother recalled one visit with only I.B. because A.B. was on a vacation. Mother reported the visit went well, there was no reason for timeouts, and I.B. “loves Mommy . . . [and h]e likes the attention.”
Mother discussed A.B.’s behavioral challenges, noting he hit and bit teachers and children at school. Sometimes he had to be picked up early from visits because he was out of control. Mother claimed that before she did not know how to
Social worker, Michael Cos, testified he had been assigned to the case since August 2018. Cos discussed how I.B. did not have the same behavioral concerns as A.B. For the next school year, A.B. would have an Individualized Educational Plan “IEP behavioral assessment,” provided to children with disabilities. A.B.’s behaviors had recently started to escalate at school and during visitations. A.B.’s behaviors were more controlled at home with the foster parents, but he was defiant and aggressive towards his younger brother, often causing scratches and bruises. Cos noted the foster parents were trying to qualify for Therapeutic Behavior Services (TBS) designed for children with serious emotional challenges. I.B. had started to retaliate against his brother. Cos stated the foster parents followed through with disciplining A.B. and were committed to adopting both children. At the time of the hearing, A.B. had again been suspended from school, and the social worker apologized this information was not in his last report. A.B. was suspended for hitting an aide in the face.
Cos recognized Mother’s visits at a center with other families (noise and many distractions) was not the ideal setting for Mother or A.B. During visits at the park, A.B. was not aggressive and there were no reports of misconduct by the children. Cos
In addition, Cos opined it was not safe to return the children because Father was still bothering the family. Mother had not filed a permanent restraining order against him. Specifically, Father twice went to the visitation center with food for the children during Mother’s visitation time, and she rejected the food. He recalled Mother also reported there was an incident Father showed up at her home when she had friends over, and he allegedly broke a friend’s truck’s window.
Canseco testified she saw the couple for joint therapy from May through September 2018, and then Mother attended therapy by herself until May 2019. Canseco stated she supported Mother’s assertion her circumstances had changed. In her sessions with Mother, they discussed parenting, and, in particular, Mother’s role as being a single parent. They also discussed how domestic violence was impacting Mother and the children, and Mother was focused on creating a safe environment for the children. She acknowledged and took responsibility for her past decisions. Mother discussed how situations could have been handled differently. A lot of therapy was spent building self-esteem, a trait necessary to make healthy decisions.
Canseco testified she and Mother also discussed A.B.’s difficult behavior and Mother did not want to give up on him. Mother was working on how to move forward and determine what should be done to avoid A.B.’s triggers. She was working on redirecting A.B. and had the goal of decreasing the impact of domestic violence. Mother was resolved to stay away from Father and determined to do everything possible
The foster mother testified she provided day-to-day care for the children since February 2017, because she worked in the children’s group home as a house parent. The foster mother stated she disciplined the children by using time-outs, taking away privileges, and calming them down. She admitted A.B. could be very difficult to handle and would sometimes hit I.B. with a toy for no reason. Although the frequency of these events had improved, the foster mother had hoped for better. She recalled one occasion when A.B. put his younger brother in a headlock, causing red marks on the child’s neck. Despite seeing a therapist, A.B. had to switch schools because no one could manage his aggressive behaviors in class at his first preschool. He would be disruptive, throw toys, and refuse to listen. At his new preschool, A.B. was suspended for dumping out his school items, turning over a table, and attempting to throw a chair at the teacher. His behavior issues would “spike” when the teachers would start the curriculum for the day. His outbursts at school would happen once or twice a week.
The foster mother was preparing A.B. for kindergarten, and she hired a tutor. She spoke with the school psychologist and noted A.B. would be assessed for an IEP. She opined he was less aggressive than in the beginning of his placement, and she noticed he was now more likely to seek help from an adult rather than act out. However,
The foster mother described I.B. as being genuinely nice, and he liked to share. He was attending preschool and loved going to class and was doing well. The foster mother noted I.B. acted the same before and after visits. She believed the boys were bonded to each other.
After all the evidence was presented, minors counsel argued nothing had changed because A.B.’s behavior was still out of control and getting worse. Counsel noted A.B.’s aggression towards his younger brother also had not improved, and it was clear I.B. was “almost a punching bag at these visits.” I.B. sat close to his Mother because he was “terrified of his older brother” who repeatedly hit I.B.’s head and stomach. Counsel stated, “I understand that Mother loves the children and she wants to have them enjoy visits with her, but she, in her inability to intervene, places I.B. at risk . . . .” SSA joined in minors’ counsel’s arguments. The parties also presented arguments regarding the permanency hearing. The court continued the matter and asked the attorneys to address two issues relating to evaluating the children’s best interests in a situation where only one child was returned to a parent.
At the next hearing, Mother’s counsel argued the children were not similarly situated. She read from visitation logs demonstrating A.B.’s relentless abusive actions towards I.B. and Mother. Every visit described bites, kicks, punches, curses, and violent pushes. She also read visitation logs describing these same behavioral issues occurring during visits with Father. Counsel stated the foster mother also testified about the abuse. She recounted the following two incidents: (1) in October 2018, the foster mother recalled she heard muffled screams and found A.B. had pinned I.B. down and choking him; and (2) A.B. was suspended from school after he stabbed another student with a pencil, flipped over a chair which hit a teacher, and kicked a teacher. Counsel
Mother then changed her modification request, asking the court return only I.B. to her custody. She stated all the visitation logs demonstrated a change of circumstances because, aside from A.B.‘s dangerous behavior, there was nothing mentioned about Mother‘s inability to care for I.B. “It has always been [A.B.] And that has always been the huge shadow that has been cast on this case, about the fact that [Mother] has so much difficulty, and Father, during the visits in reference to [A.B.] [¶] So it‘s completely . . . ignored, about the fact of how is Mother parenting [I.B.]. And there‘s no evidence that she can‘t parent I.B. Clearly, there‘s a lot of evidence--I don‘t know of anyone, arguably, can parent [A.B.], but I‘m not asking for [A.B.] to be placed with [Mother].” Father‘s counsel joined with Mother‘s argument that there was ample evidence the children were “separately situated with their behavior issues and their well being.” Father‘s counsel asserted Mother met her burden as to her section 388 modification petition.
The children‘s attorney argued it was not in the children‘s best interests to be separated. He conceded the reports mostly discuss A.B.‘s behavior as he “kind of sucks the energy out of the room.” He noted the reports also show Mother forgot her bells to keep track of the children and she was not wearing her glasses. He recalled a report stating Mother once struggled to calm I.B. down and “scold[ed] him, while looking at her phone.” Counsel argued the domestic violence in the case “was extensive” and took place in front of the children. He added A.B. swallowed iodine while in Mother‘s
SSA requested the court deny Mother‘s 388 petition because she could not provide I.B. appropriate care and it would not be in his best interests. Counsel urged the court to consider the sibling bond and a child‘s need for permanency and stability when ruling on section 388 petition.
The court denied Father‘s section 388 petition but granted Mother‘s petition, concluding Mother had demonstrated a change in circumstances and it was in I.B.‘s best interests to return to her care. The court reviewed the case‘s history and commented that due to all the continuances, the parents ultimately had an additional year to prove they were ready for the return of their children. Based on its analysis of the case law discussing section 388, the court concluded Father failed to demonstrate changed circumstances. In contrast, the court determined “Mother‘s efforts in this case are genuine, appear to be permanent, and [Mother] is prepared to take on the role of a parent.” The court concluded that in addition to completing her case plan, Mother continued her efforts after services were terminated. She asked for additional funds to continue counseling. The court found significant Mother could articulate what she learned in therapy regarding surviving domestic violence and developing parenting skills needed for a single mother with mental and physical disabilities. The court noted Mother‘s testimony was “bolstered” by Canseco‘s testimony.
The court also appreciated Mother‘s efforts “to improve herself through the Braille Institute, and [she] can articulate how she can be protective if the court returns” one or both boys. On the subject of Mother‘s use of bells and glasses, the court found “no issues” because the glasses were not beneficial, and the bells did not have to be placed on the children‘s shoes to be audible. The court noted Mother consistently visited the children for long periods of time twice a week, and despite difficulties with A.B., she was sincere in her commitment to the children.
On the best interests prong, the court first looked at the factors discussed in In re Kimberly F. (1997) 56 Cal.App.4th 519 (Kimberly F.).) After discussing the case, the court stated the list of factors in the case were “not exhaustive” but were helpful in considering a section 388 petition. The court was confident the problems that led to detention would not reoccur. It concluded Mother was in a position to properly parent I.B. and keep him safe. Additionally, the court determined I.B. was bonded to Mother and the foster parents. It acknowledged Mother‘s visits were supervised but noted visits also lasted a substantial length of time each week. The court determined Mother made every attempt possible to stay connected to her children.
The court ordered family reunification services for Mother and therapy services for her and I.B. to address any separation issues and new behavioral issues mimicking his brother. The court was unsure what to do about A.B.‘s permanency hearing because it was unclear if the foster parents were willing to adopt just one child. In addition, the court wanted to resolve the issue of whether there was a parental bond or sibling bond exception to terminating parental rights. It continued the permanency hearing.
SSA‘s counsel asked the court to clarify which standard it was using to grant the section 388 petition. It replied it used the Kimberly F. framework. It also stated, “The court finds that continued supervision is necessary, and I find pursuant to
Mother‘s counsel pointed out the court did not need to make a finding under
I.B.‘s counsel filed a petition for a writ of supersedeas. This court denied the writ petition in March 2020.
DISCUSSION
Under
We review the juvenile court‘s decision to grant or deny a section 388 petition for abuse of discretion. (In re Y.M. (2012) 207 Cal.App.4th 892, 920.) “[T]he trial court‘s ruling should not be disturbed on appeal unless an abuse of discretion is clearly established. [Citations.] As one court has stated, when a court has made a
The nature and role of section 388 was best described by our Supreme Court in In re Marilyn H. (1993) 5 Cal.4th 295 (Marilyn H.). “Essentially, Marilyn H. teaches us that section 388 really is an ‘escape mechanism’ when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights. [Citation.] As such, section 388 is vital to the constitutionality of our dependency scheme as a whole, and the termination statute,
In the Marilyn H. case, the court refused to return the minors to their mother at the permanency hearing and the appellate court affirmed the decision. (Marilyn H., supra, 5 Cal.4th at p. 298.) The Supreme Court agreed, holding the
A. Change of Circumstances Prong
In the case before us, SSA removed the children due to their exposure to domestic violence and a messy home. As well documented in the record, this case languished for several years because the sibling set was difficult to place in a foster home due to A.B.‘s extreme behavioral issues. Moreover, Mother struggled to escape her abusive relationship and develop the confidence and self-esteem to carry on as a single parent.
Unlike most dependency cases we encounter, Mother had much longer than 120 days “to get [her] act together” (In re Kimberly F., supra, 56 Cal.App.4th at p. 528), between the 18-month review and the permanency planning hearing. Mother took advantage of an additional year of services. For reasons explained in more detail below, we conclude she presented substantial evidence that supports the trial court‘s finding of changed circumstances.
With respect to the dependency petition‘s allegation of unsanitary living conditions, this concern was remedied early in the case. Most of the reports do not mention this issue. When the social worker visited Mother in May 2018, she reported the
The most serious allegation in the petition was the children‘s exposure to domestic violence. Mother presented evidence that in addition to completing all aspects of her case plan, she was highly motivated to achieve several personal goals with therapy. SSA and I.B.‘s counsel both argue the fact that Mother completed her reunification case plan cannot be evidence of changed circumstances. While this is true, completing her reunification case plan was relevant evidence regarding Mother‘s forward progress over the past two years in separating herself from Father. The enormous difficulty in separating from a controlling and dominating abuser, particularly for someone with learning and physical disabilities, cannot be overstated. (See Stoever, Transforming Domestic Violence Representation (2013) 101 Ky. L.J. 483 (Transforming Domestic Violence).)
As part of her case plan, Mother completed two parenting programs, a PEP, a domestic violence program, a psychological evaluation, individual therapy, a mentor program, and classes/services provided by the Braille Institute. Mother‘s progress over the past year must be viewed in the context of what she had already achieved, because the path to independence from an abusive relationship is neither linear nor the same for everyone. (See Dutton, Understanding Women‘s Responses to Domestic Violence: A Redefinition of Battered Woman Syndrome (1993) 21 Hofstra L.Rev. 1191, 1225 [“All women exposed to violence and abuse in their intimate relationships do not respond similarly, contradicting the mistaken assumption that there exists a singular ‘battered woman profile.’ Like other trauma victims, battered women differ in the type and
After the court terminated services, Mother voluntarily continued with therapy, where she strove to learn how to be a better parent and achieve lasting independence from Father. There was evidence to support Mother‘s claim she had changed her outlook on relationships with toxic people, dropping unbeneficial friendships while at the same time actively developing a caring network of new friends and appreciating the positive influences offered by her mentor. Mother testified she now could identify the “red flags” and the harm created by domestic violence. Canseco‘s testimony supported Mother‘s claim that she was determined to keep her distance from Father and maintain permanent separation from his abusive cycle. Canseco confirmed Mother‘s improved self-esteem was necessary to make these healthy decisions. It was also undisputed Mother enrolled in additional classes at the Braille Institute, where in addition to learning more life skills, she came to realize her blindness need not stop her from raising a happy and healthy child as a single parent. Based on all the above, we cannot say the court abused its discretion in concluding Mother demonstrated changed circumstances with respect to domestic violence.
I.B. and SSA maintain the court should have denied Mother‘s section 388 petition because there was no “true” change of circumstances based on her “history.” Both attorneys repeatedly refer to Mother‘s “pervasive and long standing” denial about her situation and her past failures to separate herself from Father as conclusive proof the abusive relationship will persist. SSA asserts there is no evidence Mother‘s “compulsive involvement with him ceased” particularly because she previously lacked a support system and failed to follow through by obtaining permanent restraining orders. SSA quips Mother‘s temporary restraining orders “were largely cosmetic” and demonstrated no changed circumstances. I.B.‘s counsel echoes these allegations and added Mother‘s testimony lacked credibility because her “conjoint therapy was based on a web of lies.”
We reject these arguments because they fail to consider our standard of review and improperly rely only on evidence unfavorable to Mother. To the extent the juvenile court credited Mother‘s testimony and other witnesses, we do not upset those credibility determinations on appeal. Moreover, these arguments reflect a shocking lack of understanding about survivors of domestic violence. Terms such as “compulsive involvement” perpetuate the myth of the helpless and weak battered women. (Kohn, Barriers to Reliable Credibility Assessments: Domestic Violence Victim-Witnesses (2003) 11 Am. U. J. Gender Soc. Pol‘y & L. 733, 734 [describing society‘s preconceptions damaging the “credibility of victim-witnesses who present on the stand in atypical and non-paradigmatic fashions“].)
It should go without saying that not all abusive relationships end the same way. Yet I.B. and SSA suggest there should be solid evidence of something other than eight months of separation. Noticeably missing from the briefing is any discussion of what length of time would have been enough. When evaluating the complexity of domestic violence relationships, not every case will be the same. Unlike drug and alcohol addiction, there are no Alcoholics Anonymous (AA) meeting cards, coins, or clean tests to measure success. We conclude the court properly relied on other measures to evaluate Mother‘s assertion she permanently ended her toxic relationship with Father.
While courts are very familiar with experts testifying in criminal cases about the “Power and Control Wheel,” and the “Cycle of Violence,” these theories focus on the abuser partner‘s wrongful acts and the effect on the victim, not about the victim‘s needs and efforts to end violence. (Transforming Domestic Violence, supra, 101 Ky. L.J. at p. 486.) As highlighted in one treatise, there are five distinct stages domestic violence survivors follow when seeking an end to the relationship. (Id. at p. 518.) The path is not linear but cyclical. (Ibid.) “Studies have found that many abuse survivors attempt to
“[L]eaving an abusive relationship or ending violence is a complex process.” (Transforming Domestic Violence, supra, 101 Ky. L.J. at p. 525.) “Batterers’ tactics ‘are more than physical violence and induce a penumbra of threats and actions to induce fear, humiliation, social isolation, and resource deprivation.’ . . . All of these tactics have one purpose: controlling the victim.” (24 UCLA Women‘s L.J. 41, fn. omitted.) Thus, signs of real progress are difficult to quantitively measure and may require expert assistance, such as the testimony of a therapist or abuse counselor.
The case before us began with a single incident of violence, where Mother lashed out at her abuser by throwing something at him. As the case progressed, the true story about the unequal balance of power between the couple was revealed. There was evidence Father used jealous rages to isolate her, physical abuse to anger her, verbal abuse to harm her self-esteem and independence, and taunts to knowingly trigger a physical reaction. There was also evidence suggesting Father exerted financial control over Mother‘s disability payments. Untangling herself from this high level of manipulation and control was an enormous task. The court reasonably concluded Mother‘s ability to maintain separation from Father for eight months was only possible because his controlling tactics were no longer effective.
The court correctly saw other evidence indicating Mother understood what was necessary to permanently leave Father. Mother‘s therapist also gave several reasons for Mother‘s change of outlook. Specifically, through counseling Mother had gained self-esteem and confidence. By developing new friendships, finding a babysitter, and relying on positive relationships she was less isolated. Classes at the Braille Institute
I.B.‘s counsel and SSA also improperly measured Mother‘s lack of success by her failure to pursue certain legal remedies. Like the trial court, we are not troubled by this evidence. As noted by the court, Mother did not invite or encourage Father to attend her visitation time. She rejected his offer of food, and there was no evidence he continued to harass her thereafter. Mother‘s therapist stated the omission did not change her opinion about Mother‘s ability to protect and care for her children. The trial court found this testimony credible. We do not reweigh the credibility of these witnesses. (In re Casey D. (1999) 70 Cal.App.4th 38, 52, [trial court‘s role to assess credibility of various witnesses].) Moreover, taking legal action is not always a good measure of success because “the legal system frequently provides an incomplete remedy to the violence” due to the “limited types of relief available, the short duration of court orders, and the challenges of the courtroom atmosphere.” (Transforming Domestic Violence, supra, 101 Ky. L.J. at p. 530.) SSA seemed certain Father‘s unexpected appearance at
We are also untroubled by Mother‘s admission she lied during conjoint therapy because Father told her what to say in June 2018. Mother‘s conduct while under the control of an abusive spouse should not be held against her indefinitely. The record shows she discontinued conjoint therapy and with the benefit of individual therapy, she learned to accept and learn from her past mistakes. Moreover, we question the wisdom of conjoint therapy as a requirement of reunification for a disabled Mother struggling to separate herself from an abusive relationship.
Finally, we are not persuaded by I.B.‘s counsel‘s assertion Mother did not show a change of circumstances regarding her parenting ability because she did not progress past monitored visitation. The record shows Mother was given a period of unsupervised visitation in a separate smaller room and there were no concerns with her parenting skills. The parties do not discuss why Mother‘s unsupervised visits stopped, why she was not permitted to visit the children separately, or why she could not be accommodated for supervised visits in a less noisy, crowded room due to her disability. What the parties discuss at length are the reports full of evidence Mother could not control or discipline A.B., and it is appears this was the primary reason she did not progress to unsupervised visits.
As noted by the trial court, there was also ample evidence in the record that the inability to control or discipline A.B. was not due to Mother‘s lack of parenting skills. A.B.‘s caregivers and teachers also struggled with A.B.‘s behavioral issues. He qualified for “504 services” at school and received one-on-one supervision in school with a specially trained aide. Despite the extra attention, he could not be controlled at school and terrorized students and the teachers. The caregivers could not stop him from bullying his younger brother.
In summary, the record reflects the juvenile court became very familiar with the parties in this case. Unlike a typical dependency case, the proceedings lasted three years, involved multiple SSA reports, fifteen 15-day review hearings, and two weeks of testimony leading up to the 388 petitions. After carefully considering the evidence, we conclude the court did not abuse its discretion in determining Mother‘s petition presented new evidence of a change in circumstances satisfying the first prong under section 388.
B. Best Interests Prong
“In any custody determination, a primary consideration in determining the child‘s best interest is the goal of assuring stability and continuity. [Citation.] ‘When custody continues over a significant period, the child‘s need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.’ [Citations.]” (Stephanie M., supra, 7 Cal.4th at p. 317.) However, the potential disruption of a current placement “is not dispositive” and other relevant factors to be considered is the child‘s age, length of the placement, and other factors related to permanency and stability. (In re R.T. (2015) 232 Cal.App.4th 1284, 1305-1306.)
“After the termination of reunification services, the parents’ interest in the care, custody and companionship of the child are no longer paramount . . . and in fact,
Here, Mother rebutted the presumption that continued out-of-home placement was in I.B.‘s best interests. The court reasonably relied on evidence I.B., who was only three years old, was bonded to both Mother and his foster parents. Mother was I.B.‘s primary caregiver for the first seven months of his life, and thereafter, remained a constant and positive presence every week. She never missed or was late for a visit. The foster family saw I.B. daily while he lived at the group home, and he transitioned easily to becoming a member of their family for nearly one year. I.B.‘s bond to both Mother and his foster parents was not disputed by the parties. In addition, there was evidence to support the conclusion both Mother and the foster family were ready and able to provide I.B. with a permanent safe and loving home. I.B.‘s need for permanency and stability was significant because he had been in four placements over a three-year period.
If our analysis were to stop here, it would be difficult to say Mother rebutted the presumption that adoption by the foster family was not in his best interests. What tipped the scales, and was discussed at length at the hearing, was that both potential placements had disadvantages. On one hand, there was evidence of a high risk of future harm to I.B. by his older brother at his current placement. If A.B. was one of the foster parent‘s biological children or an unrelated foster child, there would be little discussion about the appropriateness of placing I.B. somewhere he was being treated as a “human punching bag,” sustaining bruises, scratches, and red marks on his neck. I.B.‘s counsel and SSA argue there was a need to preserve the sibling bond, but they do not suggest how this relationship benefitted I.B.‘s best interests and, in particular, his need for a stable home environment. Without a bonding study or expert opinion, there is little to contradict the overwhelming evidence the abusive nature of the sibling relationship was
I.B.‘s counsel correctly discusses many provisions recognizing the importance of maintaining beneficial sibling relationships “to the psychological health of dependent children” separated from their parents. (In re Hector A. (2005) 125 Cal.App.4th 783, 794.) This case is different because I.B. was being separated from a sibling to be reunited with his mother. While there was evidence of a significant beneficial relationship between I.B. and Mother, the same could not be said about I.B.‘s relationship with his brother. Rather, I.B. was terrified of his brother. “Not all sibling relationships are strong or healthy.” (Schwartz, Family Law Siblings Torn Apart No More (2001) 32 McGeorge L.Rev. 704, 708.) “Many siblings have a relationship with each other, but would not suffer detriment if that relationship ended.” (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952 [discussing significance of sibling relationship in context of statutory exception to termination of parental rights].)5
On the other hand, the court weighed the evidence showing Mother had not cared for I.B.‘s daily needs since he was an infant. She did not progress past monitored visitation. And as SSA and I.B.‘s counsel repeatedly pointed out, she could not control or successfully discipline A.B. Mother addressed each of these concerns. Mother testified, and Koontz confirmed, Mother was able to take care of the daily needs of her young family (an infant and a toddler) before they were detained. As mentioned, numerous visitation logs show Mother engaged in typical parenting activities with the
I.B.‘s counsel asserts the court‘s finding was an abuse of discretion because there was absolutely no evidence Mother could provide unsupervised extended care. This is untrue. She provided excellent care during a time of unsupervised visits that took place in a smaller room, away from the chaos of other families. She testified her apartment was baby proofed and was a safe place for I.B. to play. There was no evidence suggesting her home was unsafe, or that Mother was unable to care for her child as she had done in the past. The court could reasonably conclude from the social worker‘s reports, Mother‘s testimony, and her therapist‘s testimony that Mother could provide a permanent, loving, and stable home for I.B. As discussed above, Mother‘s failure to progress past monitored visitation was primarily due to issues controlling A.B.‘s behavior and aggressive outbursts, not her ability to attend to I.B.‘s needs.
I.B.‘s counsel suggests A.B. likely learned his aggressive behavior by being exposed to domestic violence, Mother‘s aggressive actions, and lack of parenting skills. Counsel speculates, “[I.B.] will surely suffer the same fate in [M]other‘s care.” This allegation is completely unfounded. There is no evidence showing Mother is entirely to blame for A.B.‘s unstable emotional health. A.B.‘s aggressive behaviors have continued and worsened despite therapy, one-on-one school aides, appropriate parenting, and the additional loving support of the foster family. A.B. has qualified for special accommodations at school, has a history of becoming agitated and triggered in noisy environments, refuses to follow instructions, and requires a strict routine to remain calm. I.B., who also remained in close contact with Mother his entire life, exhibited none of these extreme emotional and behavioral issues.
Mother addressed the initial concerns about her ability to provide a safe living environment free from domestic violence. At the 18-month review hearing, the
C. The Correct Legal Standard
We turn next to SSA‘s argument the court utilized the wrong legal standard in evaluating I.B.‘s best interests, which meant its order was necessarily an abuse of discretion. Counsel cites to the court‘s statement it was applying
At the end of the hearing on Mother‘s motion, the court made a statement regarding
SSA does not mention that Mother‘s counsel asked the court to clarify why it mentioned
It appears that the court was grappling with making its ruling without the benefit of an applicable code section to justify additional services. It borrowed language from
SSA also faults the court for referring to factors outlined in the Kimberly F. case, noting this court has determined those factors do not apply because they do not take into account the factors set forth by the Supreme Court in the Stephanie M. case. (In re J.C. (2014) 226 Cal.App.4th 503, 527 (J.C.).) This argument oversimplifies our analysis in the J.C. case. In that case, the mother made no effort to establish how modification would advance her child‘s need for permanency and stability as required by the Stephanie M. decision. Instead, she focused on her own progress and the Kimberly F. factors, suggesting her reunification efforts should be given more weight in evaluating her child‘s best interests. We concluded the child‘s best interests would not be to delay a permanent home “in favor of rewarding Mother for her hard work and efforts to reunify.” (J.C., supra, 226 Cal.App.4th at p. 527.) We declined to apply the Kimberly F. factors because the mother failed to address the more important concepts of permanency and stability. In
DISPOSITION
We affirm the court‘s order granting Mother‘s section 388 petition for modification. We grant Mother‘s request for judicial notice of the juvenile court‘s order dated April 3, 2020.
O‘LEARY, P. J.
WE CONCUR:
MOORE, J.
FYBEL, J.