Opinion
A151088
08-04-2017
E.F., Petitioner, v. THE SUPERIOR COURT OF SAN FRANCISCO COUNTY, Respondent; SAN FRANCISCO HUMAN SERVICES AGENCY, et al., Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. Nos. JD15-3057, JD15-3057A, JD15-3057B)
Petitioner E.F. (Mother) seeks writ review (Cal. Rules of Court, rule 8.452) of a juvenile court order, issued at a postpermanency status review hearing, setting a new hearing under Welfare and Institutions Code section 366.26. Mother contends the juvenile court erred by denying Mother's request that her children, A.P. (born 2006), L.P. (born 2008), and N.P. (born 2013) (collectively, Minors), be returned to her care or that she be provided with six additional months of reunification services. We deny the petition.
All undesignated section references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2015, the San Francisco Human Services Agency (the Agency) filed a section 300 petition alleging Minors' father (Father) had mental health and substance abuse issues; Father had acted violently towards Minors and towards Mother in Minors' presence; Mother was recently denied services at a homeless shelter due to a domestic violence incident with Father; and Minors' sibling, D.C. (born 2004) was removed from his parents' care due to medical neglect and adopted in Oregon. Minors were detained from Father's care and placed with Mother.
At the time of his removal, D.C. was known by a different name; his name was subsequently changed to D.C.
Father has not filed a writ petition, and we omit background facts relating to him except where relevant to Mother's petition.
In March 2015, the Agency filed an amended petition adding allegations that Mother has a substance abuse problem. The amended petition included factual allegations that Mother was recently seen purchasing drugs and under the influence while N.P. was in her care, and that on the same day Mother failed to pick up A.P. and L.P. from their afterschool program. In May 2015, the Agency filed a second amended petition adding allegations that Mother was recently more than an hour late to pick up A.P. and L.P.; when she arrived, she smelled of alcohol, was unable to maintain her balance, was mumbling and rambling, and had dressed N.P. in light clothing despite the outside temperature of 53 degrees. Following the second amended petition, the juvenile court ordered Minors detained from Mother's care and placed in foster care, with supervised visits for Mother.
Between Minors' removal from Mother's care and the September 2015 jurisdiction/disposition hearing, the Agency filed a number of reports. These reports stated Mother's drug testing in April and May was "very sporadic," although when she did test the results were negative; in June she tested positive for methamphetamine and amphetamine; and in July and August she did not drug test at all. Mother had missed several visits with Minors. During the visits she attended, she seemed "overwhelmed" by Minors' behavior. Mother had been referred to individual therapy but had not followed through, and had not participated in substance abuse or domestic violence services. Mother's communication with the Agency since Minors' removal had been "very limited."
Apparently, Mother began drug testing following an Agency recommendation that she be considered for dismissal only after a number of requirements were met, including weekly drug testing.
At the September 2015 jurisdiction/disposition hearing, the juvenile court sustained jurisdiction but struck the allegations added by the amended petitions. The court declared Minors dependents of the court and ordered them placed in foster care with reunification services to Mother and Father. Mother's reunification plan included individual therapy, substance abuse assessment, weekly drug testing, and a domestic violence program.
In February 2016, the Agency filed a six-month review hearing report, recommending reunification services be terminated. The Agency had been unable to refer Mother to services because she had not appeared at any appointments with the Agency. Mother's visits with Minors had been discontinued in early December because she missed numerous visits and, when she did attend visits, she would fall asleep, go to the bathroom for 20 to 30 minutes, and have unpredictable mood swings. Minors were placed together in foster care and were "adamant" that they wanted to remain in the foster placement. In April 2016, at the six-month review hearing, the juvenile court terminated reunification services for Mother and Father and set a section 366.26 hearing.
In an August 2016 section 366.26 hearing report, the Agency recommended Minors be placed in foster care with the permanent plan of adoption. Mother had made no contact with the Agency or Minors for several months. Minors were doing well in their foster placement. While their foster parents were unwilling to commit to adoption, an adult paternal cousin had expressed interest in adopting Minors. This paternal cousin resided in Oregon, near other paternal relatives who had adopted Minors' brother, D.C. An assessment of the paternal cousin as a possible placement under the Interstate Compact on Placement of Children (ICPC; Fam. Code, § 7900 et seq.) was in progress. At the section 366.26 hearing, the juvenile court ordered the permanent plan for Minors to be foster care with a permanent plan of adoption pending ICPC approval, and set a six month postpermanency review hearing. The juvenile court did not terminate parental rights.
In January 2017, the Agency filed a postpermanency review hearing report. During the fall, the paternal cousin spoke to Minors by telephone and drove from Oregon to California on two occasions to visit Minors in person. In mid-December, after the assessment was complete, Minors moved to Oregon to live with the paternal relatives. Minors were still transitioning to their new home, but there were positive signs: A.P. was "grateful" for the support of her foster mother and extended relatives, L.P. enjoyed sharing a room with her cousin, and N.P. was "adjusting well" to her new home. Minors were in daily contact with D.C. The Agency still had no contact from Mother. The Agency recommended setting a section 366.26 hearing to modify the permanent plan from placement to adoption.
In March 2017, the Agency filed an addendum report. The report stated that in late February, Mother contacted the Agency for the first time in more than 14 months. Mother told the Agency she had entered drug treatment and wanted reunification. The Agency continued to recommend setting a section 366.26 hearing.
In April 2017, the juvenile court held the postpermanency review hearing. The Agency social worker testified that Mother was currently enrolled in a residential drug treatment program that allows children to be in residence with their mothers. In her contacts with the Agency since February 2017, Mother had indicated her willingness to do anything needed to reunify with Minors. The social worker testified Minors felt abandoned by Mother. A.P.'s therapist recently informed the social worker that A.P. clearly stated she did not want contact with Mother and did not want to be removed from her current placement.
Mother's counsel asked the social worker about Minors' older brother, D.C. The social worker testified D.C. was previously in the care of the same paternal relatives who were caring for Minors. When Mother's counsel tried to question the social worker about the termination of that placement, counsel for the Agency and Minors objected on relevance grounds and on the ground that it assumed facts not in evidence. Mother's counsel represented to the court that earlier that day, the Agency social worker told all counsel "that these relatives previously had [D.C.] and were not able to handle him." Mother's counsel argued, "these caregivers possibly having given up another child who had been placed with them is relevant" to their "likelihood to provide permanency to [Minors]." The Agency's counsel argued, "whatever happened 14, 15 years ago is not the issue today and it's not relevant." The juvenile court sustained the objection.
Mother testified that, after her visits were suspended in December 2015, she did not attempt to get them reinstated because "I haven't really had the best experiences with [the Agency]" and because "my using had gotten . . . out of control, . . . I guess all I was thinking about was drugs." Mother used methamphetamine "on and off" since 2003 and had never previously been in treatment. She entered a drug treatment program on January 30, 2017, because she was "not happy with the way my life was going" and she "desperately wanted to be a part of my kids' lives again, I missed them very much." She was in individual therapy as well as groups including parenting and anger management. She ended her relationship with Father early in the dependency case. Mother believed it would be in Minors' best interests to return to her care.
The Agency and Minors' counsel urged the juvenile court to set a section 366.26 hearing and change the permanent plan to adoption. Mother argued Minors should be returned to her or, in the alternative, she should be provided with additional reunification services.
The juvenile court commended Mother "for the efforts that she is taking and remarkable candor on the stand about what has occupied your life over this last period of time." The court continued, "the presumption is that continuing care is in the best interest of the child. And for the Court to order either return or six months of reunification services at this juncture, that mother must prove by a preponderance of evidence that further efforts of reunification are the best alternative for the child, for the children in this instance. And I regret that I cannot do that. I do not believe that mother has met her burden. [¶] Again I commend her for her efforts, but these children do deserve permanency. We have a family that is willing to adopt them." The court set a section 366.26 hearing for August 8, 2017.
DISCUSSION
At a postpermanency review hearing where parental rights have not been terminated, "[i]t shall be presumed that continued care is in the best interests of the child, unless the parent or parents prove, by a preponderance of the evidence, that further efforts at reunification are the best alternative for the child. In those cases, the court may order that further reunification services to return the child to a safe home environment be provided to the parent or parents up to a period of six months . . . ." (§ 366.3, subd. (f).) At a postpermanency review hearing "for a child in foster care, the court shall consider all permanency planning options for the child . . . . The court shall order that a hearing be held pursuant to Section 366.26, unless it determines by clear and convincing evidence that there is a compelling reason for determining that a hearing held pursuant to Section 366.26 is not in the best interest of the child because the child is being returned to the home of the parent, the child is not a proper subject for adoption, or no one is willing to accept legal guardianship as of the hearing date." (§ 366.3, subd. (h)(1).) I. Exclusion of Evidence About D. C.
Mother first argues the juvenile court erred in excluding evidence about the termination of D.C.'s placement with the parental relatives caring for Minors. We find any error harmless.
We therefore need not decide whether, as the Agency contends, Mother failed to preserve the issue.
Mother argues that, had the testimony been allowed, "the court might have learned that these relatives were previously in a similar position: a child was in their care; they intended to adopt; he had challenging behaviors and then they terminated his placement and that they did not adopt." However, the social worker testified he did not know whether the relatives ever expressed an intent to adopt D.C., therefore his testimony would not have established this "similar position." In addition, both the Agency's counsel and Minors' counsel represented that D.C.'s placement with these relatives terminated more than 10 years previously, and Mother's counsel did not dispute this representation. Finally, the juvenile court was obligated to set a section 366.26 hearing absent compelling reasons to the contrary. In light of the recentness of Mother's current sobriety and her lengthy lack of communication with Minors, it is not reasonably probable that the ten-year-old termination of a non-adoptive placement with the paternal relatives would have altered the juvenile court's decision. (See In re Jordan R. (2012) 205 Cal.App.4th 111, 134 ["To the extent an alleged error violates state evidentiary law, 'even where evidence is improperly excluded, the error is not reversible unless " 'it is reasonably probable a result more favorable to the appellant would have been reached absent the error.' " ' "].) II. Consideration of A.P.'s Wishes
An Agency report filed before disposition stated D.C. was removed from his parents' care in January 2005 and Mother and Father relinquished their parental rights to D.C. "early on in the case."
We disagree with Mother's contention that, absent the excluded evidence, the juvenile court was unable to adequately "consider all permanency planning options" (§ 366.3, subd. (h)). For the reasons discussed above, any relevance of the excluded evidence was minor. --------
Mother argues the juvenile court gave "undue weight" to A.P.'s statement that she wanted to stay in her placement and did not want to return to Mother. "The trial court's judgment is presumed correct. [Citation.] All conflicts are resolved in favor of the judgment and all legitimate inferences are indulged in to uphold the juvenile court's determinations." (In re K.S. (2016) 244 Cal.App.4th 327, 337.) The juvenile court did not refer to A.P.'s statement in its oral ruling or written order. There was ample additional evidence supporting the juvenile court's decision: the recent nature of Mother's current sobriety, the more than 14 months since Mother had visited or spoken to Minors, and the willingness of the paternal relatives to adopt Minors. From this record, we will not presume any impropriety in the juvenile court's consideration of A.P.'s statement. Nahid H. v. Superior Court (1997) 53 Cal.App.4th 1051, in which the juvenile court "was content to rely on the minors' perceptions of risk [of harm from reunification with their mother]," where there was little evidence of any actual risk, is inapposite. (Id. at pp. 1069-1070.)
DISPOSITION
The petition is denied. The request for a stay of the August 8, 2017 section 366.26 hearing is denied. This decision is final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
BRUINIERS, J.