Filed 7/1/14 In re M.L. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). Thi s opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE
STATE OF CALIFORNIA

In re M. L

. et al. , Person s Coming Under the Juvenile Court Law.
SAN DI EGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent,

v. JESSICA C. , Defendant and Appellant. D0 65168
(Super. Ct. No. J 51 8 395 A

- C )

APPEAL from order s of the Superior Court of San Diego County, Elizabeth A. Riggs , Judge

. Affirmed

. William Hook, under appointment by the Court of Appeal for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel and Patrice Plattner

- Grainger , Deputy County Counsel, for Real Party in Inter est San Diego County Health and Human Services Agency. Brittany Murphy, under appointment by the Court of Appeal for Minors.2

Jessica C. appeals order s of the juvenile court granting petition s under Welfare
and Institutions Code 1 section 3 8 8 plac ing her c hildren with their father, A.L. Jessica
contends the juvenile court abused its discretion in granting the petition because the children were doing well in her care and A.L. had " serious unresolved domestic violence
issues

. " We affirm the order s
.

FACTUA L AND PROCEDURAL BACKGROUND 2
Jessica and A.L. married in 2002

. T heir first son, M .L. , was born in 2003 while they were living in Georgia

. They separated in early 2004 and Jessica moved with M.L. to San Diego, where she had family. After his honorable di scharge from the military,
A.L. moved to Kern County . The couple had another son , M.C. , together in 2005, but
divorced in 2006 , with j oint legal and physical custody of the boys.
Between February 2004 and mid

- 2008, the family had a number of child welfa re referrals, several of which were based on Jessica ' s allegations that A.L. had been violent
with her an d the children. None of the referrals resulted in conclusive findings and
several were deemed to be unfounded. 3 A.L. was never arrested or charged wi th any
crimes arising from the underlying allegations. Jessica and A.L. had a third child , a daughter, in 2010.
From 2008 to 201 1 , Jessica moved with the children several times between San Diego and Los Angeles or Kern County , where A.L. was living

. I n M arch 2011, when
she and the children were staying a t the St. Vincent de Paul Village in San Diego, t he San

1 All further statutory references are to the Welfare and Institutions Code. 2 As can be seen from a comparison of the factual recitation that follows and the facts set forth in the opening brief, Jessica has failed to comply with a fundamental rule of appellate pr oced ure requiring that the evidence be construed most favorably to the challenged order. ( See generally Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.)
3 When later asked about the referrals, Jessica responded that she called in some of them herself afte r A.L. did not return the children to her at the agreed

- upon time.3

Diego County Health and Human Services Agency (the Agency) opened a voluntary
services case for her , but closed the matter a few months later based o n its inability to locate the family. At about the same time it closed the case, the Agency received a report
from Jessica ' s sister, Carmen, that Jessica was unstable , had been physically aggressive
with her , and was not getting the boys to school.
In D ecember 2011, when she and the children were in Lancaster , Jessica called a
domestic violence shelter alleg ing that A.L. had assaulted her and M.L. when the family was shopping together

. 4 Jessica and the children moved int o a Los Angeles shelter and
the L os Angeles Department of Children and Family Services ( DCFS ) devised a safety plan for the family and filed dependency petitions for the children , seeking their removal
from A.L. 5
Jessica took the children and left the shelter w ithout notifying DCFS , and the court
issued an arrest warrant for her and protective custody warrant s for the children

. When
DCFS discovered Jessica and the children had returned to San Diego and were living
with Carmen and her husband , Jessica was arrested on the outstanding warra nt and the children were placed in foster care

. She was later released and moved back in with
Carmen

. In January 2012 , the Los Angeles County Superior Court i ssued a restraining order against A.L. for Jessica ' s protection and , over DCFS ' s objection, ord ered t he children

4 Jessica also alleged that four months earlier, A.L. had forcibly taken her and the children from San Diego to Lancaster and essentially held them prisoner in his home, but law enforcemen t refused to take any action after she reported it. A.L. denied Jessica's allegations, stating she asserted them after he declined to buy her a sweater she wanted.
5 The petitions alleged that the children wer e in need of the protection of the juvenile court because A.L. used inappropriate physical discipline and engaged in rough horseplay with the children, and the parents had a history of domestic violence . A.L. consistently denied physically abusing Jessica or the children. Most of the petition's al legations of physical abuse relating to the children were later dismissed.4

placed with Jessica

. Ba sed on reports that Carmen had a criminal history and her
husband had pr ior substantiated child protective service referrals , the court instructed
DCFS to find a domestic violence shelter for Jessica and the childr en
. In March 2012, the juvenile court in Los Angeles sustained the petitions, declared the children dependents and continued their p lace ment with Jessica

. I t ordered domestic violence counseling, parent education, and individual counseling for Jessica ; individual
domestic violence counseling for A.L ; and individual therapy for the boys

. It also authorized supervised visitation between A.L. and the children.
While Jessica and the children were in the domestic violence shelter , the boys
were enrolled in school , which evaluat ed M.L. for an I ndividual ized E ducation Program (IEP)

. 6 In April 2012, the dependency proceedings were transferred from Los Angeles to San Diego, over A.L. ' s objection

. Although A.L. was living in Mojave and employed
full

- time , he m aintained regular supervised weekend visits with the children in San Diego

. Meanwhile, Jessica continued to struggle to maintain stable housing. 7 She

v oluntarily left the domestic violence shelter where she had been staying , and she and the
children were asked to leave a second shelter after a week because of an incident between
Jessica and another resident. The family lived in a third shelter for two weeks in late May 2012 , but moved back in with Carmen o n June 1. In early August 2012, Carmen,
Jessica and the children moved to another hom e together, although Jessica frequently
threatened to move out because of her ongoing disagreements with Carmen

. Carmen also

6 The IEP was ultimately released in April 2013; it indicated that M.L., then nine years old, had kindergarten or early first grade level reading and math skills, had severe delays in all areas of his adaptive living skills, and needed glasses.
7 At one point, Jessica received homeless assistance funds, but she used them to stay at a hotel for $100 per night rather than for low income housing for her family.5

occasionally stated in front of the children that she would kick the family out of the
home. Because of the constant moving and providers ' inability to reach her by tele phone,
Jessica was unable to effectively participate in most of the services offered to her , including a parenting program

. In addition, her participation in individual and grou p therapy was inconsistent. Her individual therapist concluded in part that Jessica suffered
from an adjustment disorder, mixed anxiety and disorganized thinking , was irresponsible
and lack ed insight. Based on Jessica ' s lack of progress in counseling , th e therapist
recommended that she undergo a psychological evaluation to determine whether she
would be able to participate in treatment and protect the children

. In contrast, A.L. had completed a parenting class and consistently participated in
individual therapy sessions, with his therapist report ing that he was c apable of functioning as a protective parent , with patience as one of his strengths. Through domestic violence counseling, A.L. realized that he had not always handled stressful
situations well , and worked on learning how to respond to escalating circumstances. With the Agency ' s assistance, A.L. also maintained regular visitation with the children, during which he was very engag ed and demonstrated " positive role modeling. " The
children were ver y well behaved during visits and the boys began to den y Jessica ' s allegations about historical domestic violence and physical abuse by A.L. At the family maintenance review hearing i n October 2012, the court c ontinued
the children ' s placement with Jessi ca , but expressed concern about the impact her frequent moves had on the boys ' education and her ability to participate in services , and ordered her to submit to a psychological evaluation

. At M.L. ' s request, he visit ed with A.L. after the hearing was ove r.6

In March 2013, Jessica canceled authorized in

- home parenting services because she and Carmen objected that the provider was asking too many personal questions

. Based on Jessica ' s comments, the social worker was concerned about sending any other
third party service providers into he r home. Moreover, M.L. ' s therapist reported Jessica had difficulty parenting M.L. and often engaged him in a power struggle that increased
his " angry feelings and anger outbursts. " The following month, A.L. began having

un supervised visits with the children

. A p sychologist who evaluated Jessica in March 2013 8 concluded she suffered from a personality disorder that made her impulsiv e , suspici ous , deceitful and irresponsible

. The evaluator not ed a high school psychological evaluation of Jessica
characteriz ing her as manipulative and " capable of distorting the truth

. . . to suit her
immediate needs , " and stated his belief that Jessica had utilize d services in the dependency proceedings only to the extent they met her needs ; he questioned whether she
would be able to work through her issues in therapy but suggested that psychotropic
medi c ations might improve he r cognitive functioning and stabilize her affect. Based on the evaluation, the Agency recommended , and the court orde red, Jessica to submit to a psychiatric examina tion

. Although Jessica ' s housing situation had finally beg u n to stabilize, she repeatedly expressed her i ntent to move again because of ongoing conflict with Carmen

. Jessica reported fe eling overwhelmed by the children and t he family home was in total disarray , with food, clothing, and bags of dirty laundry all over the floor. Jessica was unable to
consistent ly get the boys to school , despite several reminders about the importance of
do ing so , which resulte d in M.L. being absent from school on 17 days and tardy 30 times , and M.C. being absent 14 days and tardy 28 times

.
8 The evaluator no ted that he had difficulty schedul ing the evaluation because Jessica did not return his calls.7

In June 2013 , Jessica got a job, but then promptly quit, and moved the family to a hotel after she had a physical altercation with Carmen

. During the next two months, the social worker received a series of messages from Jessica and Carmen in which they each
made accusations a gainst the other

. 9

I n late July 2013, Jessica requested the social worker ' s assistance in getting housing for the f

amily , although s he stated she was going to ask the court t o give A.L. custody of the boys. Jessica also stopped taking t he boys to therapy , and missed her own therapy and domestic violence counseling sessions for several months

. When Jessica met with t h e social worker , she reiterated that she was overwhelmed with caring for the
children and trying to find a job and housing , and would probably ask that the children be placed with A.L. so she could get back on her feet. The social worker lost contact with
Jessica in early August 2013

. In the interim , A.L. spoke to the social worker on a monthly basis and established
that h is home was large enough for all three children to be placed with him. He had consistently maintained his full

- time employment with an aerospace company and had
started overnight weekend visits with the children, although he had been un able to visit
the children in June or July b ased in part on Jessica ' s refusal to facilitate visitation

. By mid

- October 2013, Jessica and the children had moved back in with Carmen

. Jessica called her social worker to ask for referrals to get back into therapy after her
counsel advised her that she needed to do so. She had not shown much improvement in getting the boys to therapy or school, however , and s he and Carmen continued to a rgu e , although not as much as they had previously

.

9 Among other things, Jessica accused Carmen of taking her money and physically abusing her and the children. A t some point, she obtained a temporary restrai ning order against Carmen. Jessica later said she had made up the allegations against Carmen "to protect [herself]" because Carmen was threatening to seek removal of the children from her.8

At about the same time, A.L. filed a section 388 petition to have the children placed with him based on the instability of t he children ' s lives in Jessica ' s care , the
in consiste n cy of the boys ' school attendance , a nd Jessica ' s interference with his visitation.
T he court set the matter for a contested evidentiary hearing.
The court continued the contested hearing at the Agency ' s request based on
Jessica ' s continuing refusal to cooperate with the social worker , and the Agency ' s need to
do further follow

- up with A.L. The court stated " This case is very frightening to me, quite candidly. It ' s not like I have been doing this for two months. I think that there ' s a potential that t h e s e kids are at risk, and that they are not being taken care of. " It expressed frustration with the Agency ' s failure to timely evaluate A.L. ' s situation, b ut also counseled Jessica that she might lose custody of the children if she continued to be
uncoop erative with the Agency . Jessica ' s counsel indicated the family would be moving again and provided the court and counsel with her client ' s new address and tele phone
number. 10 After addressing a few safety issues identified by the Agency , A.L. received a positive home evaluation. He checked on enroll ing the children in a school near his
home , as well as after school childcare services , and had a good support network of family and friends in the area

. Although A.L. had successfully completed his case plan , he was willing to undertake additional services , including domestic violence counseling,
to facilitate custody

. The social worker recommended that the children be slowly
transitioned to A.L. ' s c are
. At a combined evidentiary hearing on A.L. ' s section 388 petition and family maintenance review hearing in December 2013 , t he court received into evidence the

10 After this hearing, Jessica claimed for the first time that A.L . had sexually molested his biological sister. Th e social worker later determined the allegation to be unfounded and concluded Jessica made it up to try to retain custody of the children.9

Agency ' s reports and heard testimony from the social worker, each of the parents, and
Carmen

. 11 Although t he Agency recommended leav ing the children i n Jessica ' s care and
increas ing A.L. ' s visitation with the possibility of later transitioning the children to his

care , t he court granted the section 388 petition and order ed the Agency to transition custody to A.L. , with A.L. to participat e in group domes tic violence therapy and individual therapy for the children " forthwith

. " Jessica appeal s
. DISCUSSION
A party may petition the juvenile court under section 388 to change, modify or set aside a previous order. The petitioning party has the burden of show ing, by a preponderance of the evidence, that there is a change of circumstances or new evidence and that the proposed modification is in the child ren ' s best interests. (§ 388; In re Jasmon
O. (1994) 8 Cal.4th 398, 415.) W hether changed circumstances exi st and the proposed change is in the children ' s best interests are questions addressed to the sound discretion of the juvenile court and we will not disturb it s decisions unless they were arbitrary, capricious or patently absurd. ( In re Stephanie M. (1994 ) 7 Cal.4th 295, 318.) When two or more inferences reasonably can be deduced from the facts, we cannot reweigh the
evidence or substitute our opinion for that of the juvenile court. ( Ibid. )
A

. Changed Circumstances or New Evidence
Jessica first conten ds the juveni le court abused its discretion by finding A.L. ' s section 388 petition was supported by changed circumstances or new evidence. However, th is argument disregards several significant changes in the circumstances that occurred during the pendency of the proceedings. A lthough the dependency petitions set forth allegations of a serious history of domestic violence and physical abuse by A.L.,

11 Jessica was late for the hearing, which was significantly unde rway by the time she arrived.10

m any of those allegations were later dismissed and the evidence before the court at the hearing permitted it to reasonably conclude the facts underlying the remaining allegations were largely, if not completely, fabricated by Jessica and members of her family , in many
instances so that Jessica could retain custody of the children. 12 Further, although Jessica co ntends the children were doing well in her care, t he
evidence also suggested that she often put her own needs before theirs, mov ing them from one living environment to another, and failing to consistently get the boys to school and therapy. She exposed th e children to her frequent and volatile confrontations with
Carmen and others. She also had difficulty parenting the children, engaged in power struggles with M.L. and was often overwhelmed. Despite these issues, Jessica showed little insight into the ch ildren ' s needs, refused to accept that she needed help and did not participate in services offered to her until after it became clear that she had to do so to keep the children in her care. This evidence was sufficient to support the juvenile court ' s find ing of changed circumstances.
B

. Children ' s Best Interests The evidence cited above also supported the juvenile court ' s conclusion that placing the children with A.L. was in their best interests. Although the y had not lived with A.L. alone in the past, h e consistently expressed , and show ed by his actions, his
commitment to the children. Further, A.L. complied with the Agency 's and the court 's requirements to facilitate his relationship with the children. He had maintained a stable job, created an approp riate home environment for the children to move in with him , and had taken steps to ensure the boys would be enrolled in school.

12 Despite Jessica's complaints to the contrary, the evidence substantiates A.L. 's consistent and vehement deni al of the accus at ions of domestic violence and physical abuse by him

.11

By contrast, the children had been subjected to a very unstable situation while living with Jessica, one in which they moved around quite a bit and the boys did not consistently get to school or participate in court

- ordered therapy . Moreover, the children were exposed to Jessica ' s use of fabrication as a means of accomplish ing her own personal goals , without regard to their nee ds

. The court acted within its discretion in concluding that placing the children with A.L. was in their best interests.

DISPOSITION
The order s are affirmed.

McDONALD, Acting P. J.
WE CONCUR:

McINTYRE, J.

O ' ROURKE, J.