Opinion
A157014
10-29-2019
In re ANTHONY P., a Person Coming Under the Juvenile Court Law. HUMBODLT COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES, Plaintiff and Respondent, v. JESSICA T., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. JV150034)
Jessica T. (mother) appeals from a juvenile court order denying her petition for modification under Welfare and Institutions Code section 388, which requested termination of a legal guardianship and return of her son, Anthony P. (minor), to her custody. We affirm.
All further statutory references are to the Welfare and Institutions Code.
I. BACKGROUND
When minor was born, he and mother both tested positive for methamphetamine. Two years later, mother gave birth to twins, one of whom also tested positive for methamphetamine. Mother also tested positive for methamphetamine and admitted smoking marijuana and methamphetamine. Mother and father both had an extensive history of substance abuse, with mother reportedly using methamphetamine while pregnant with minor's half sibling in 2005, as well.
On February 17, 2015, the Department filed a section 300 petition alleging minor was at risk of harm under subdivisions (b) and (j) based on (1) minor testing positive for methamphetamine at birth, (2) mother tested positive for methamphetamine when she delivered the twins, (3) mother admitted smoking marijuana and methamphetamine, (4) mother did not begin treatment until January 2015, and (5) the twins were removed from mother's care. At the jurisdictional hearing, the court found minor a dependent and set the matter for a disposition hearing. A short time later, minor was moved from the foster home in which he was placed after he was detained to a relative care foster home. At the disposition hearing in June 2015, the juvenile court ordered minor removed from parents' custody and provided family reunification services to the parents.
According to the jurisdiction report, father reported he is a member of the Karuk Tribe (Tribe) and minor was eligible for enrollment in the Tribe. In June 2015, minor was enrolled in the Tribe.
It appears from the record that mother was a descendant of a member of the Yurok Tribe, but neither she nor minor were eligible for enrollment.
Mother and father were both unsuccessful in their efforts to reunify with minor during the initial six-month review period. At the six-month review hearing, the juvenile court found minor was at substantial risk of detriment to his emotional and physical well-being, found parents failed to make progress on their case plans, terminated reunification services, and set the matter for a section 366.26 hearing.
According to the adoption assessment addendum for the section 366.26 hearing, minor had been in the care of two caregivers since early 2016. One of his caregivers was an enrolled member of the Navajo tribe and was well connected with the local Native American community, taking part in tribal activities in the area. Although the Department recommended adoption or "Tribal Customary Adoption," the Tribe was not in favor of either of those plans. At the July 2016 section 366.26 hearing, the court ordered a plan of guardianship with caregivers Kellie and Amy S. (guardians), and ordered supervised visitation for the parents once a month for two hours. Three months later, the juvenile court terminated dependency jurisdiction, ordered legal guardianship as the permanent plan, and set the matter for guardianship review the following year.
In July 2017, father filed a section 388 petition, asking the court to reinstate dependency jurisdiction, terminate the guardianship, reinstate reunification services, and increase visitation. Father had been clean and sober for 11 months, was employed, and had been visiting minor. The social worker met with the guardians who were in support of reunification services for father, but worried about granting unsupervised visits too quickly. The Tribe did not oppose the Department providing reunification services to father. The court granted father's section 388 petition, and ordered six months of reunification services to father.
The day after the juvenile court granted father's section 388 petition, mother filed a petition for modification under section 388, also requesting reunification services and visitation based on allegations that mother had reunified with minor's siblings, obtained a stable home, and was clean, sober, and employed. Both the Department and the Tribe supported mother's application.
In its response to the section 388 petition, the Department noted mother had given birth to 10 children; the last two births were both twins. The youngest children, twins, had been the subject of a "Non-Detained Petition," which had subsequently been closed when mother was able to demonstrate her ability to maintain her sobriety and care for her children. Mother demonstrated her ability to care for the twins, one of whom had been diagnosed with cancer. Mother and the father of the twins were traveling out of the county weekly with that child to attend his chemotherapy treatments. Mother stated the stress of that experience had been hard on the family.
The addendum to the Department's section 388 response noted the juvenile court had also granted a section 388 petition in minor's half sibling's (J.G.) dependency case. J.G., who was 11, had returned to mother's home with family maintenance services in June 2017. Mother had been able to demonstrate her ability to parent J.G., but it had been difficult. J.G. had been in six placements since he had been detained in August 2015. Mother found she struggled to meet J.G.'s mental health needs and address his "explosive behavior." Specifically, J.G. had thrown objects at his younger siblings, ages six and one, that left bruises, had broken things in the home, and threatened mother, telling her he was going to "slit her throat."
As of December 2017, mother had been sober for over 18 months, was working full time at an inn, and resided in a two-bedroom apartment with her ex-partner and six of her children, ages one through 16. The report stated she had "addressed all of the issues that led to the initial removal of her older children and has demonstrated her ability to maintain her success over time. She also provides adequate care of her infant sons and [J.G.]." Though mother reported being "overwhelmed" by J.G., being worried about the health of her one-year-old son who has cancer, and that her home was "very crowded," the report noted she was engaged in "Wraparound, counseling, in home behavior services, and intensive care management services for [J.G.]." The Department also observed it was expected that (1) mother would continue using service providers and family members that had assisted with "her transition to a successful parent," (2) mother's "household may be in a more stable position with larger housing to ensure the safety and well-being of [minor]," and (3) within the next 12 months, mother would demonstrate her ability to care for minor and his twin brother. On March 23, 2018, the juvenile court granted mother's section 388 petition and granted mother six months of family reunification services.
The postpermanency status review report prepared in September 2018 reported father was currently in jail. Mother, however, resided in a three-bedroom apartment with her partner, along with five of her children. Mother was still employed full time at the inn, had maintained her job for more than a year and a half, had maintained sobriety for more than two years, and was in compliance with her court-ordered case plan. Mother had obtained and maintained safe housing in which minor could also live. The social worker had assessed mother's home and found it appropriate for the children. Mother believed she had come a long way in her sobriety and ability to safely parent and believed having minor return to her home would complete her goal of getting all her children back.
Minor was a healthy child with no major medical concerns. Minor was doing "really well" in his kindergarten class and did not have an "Individual Education Plan." Minor was described as "a typically happy little boy who loves to play outside and enjoys playing with both his adoptive and biological siblings." His guardians reported no concerns about his mental or emotional well-being in their care, but expressed concern that he might not receive the attention he needs if he returned to mother's home. The Department indicated it would explore counseling for minor if he experienced difficulty with the transition.
Since July 2018, minor had been having unsupervised visits with mother twice a week for two hours. The unsupervised visits had gone well and occurred without incident. The Department recommended the family begin overnight visitation to transition minor into the home, and expected the transition period would last one or two months.
The status report also noted minor had been placed with the guardians since January 2016. The guardians reported minor had "blossomed and is a part of their family," said they love minor as their own son, and expressed a desire to have him to reside in their home as his permanent plan. Minor identified the guardians as his moms and the other children in their home as his siblings. The guardians kept minor connected to his biological family by inviting them to family outings and minor's birthday parties. Though the Tribe opposed adoption by the guardians or a Tribal Customary Adoption, the guardians believed it was in minor's best interests to continue to reside in their home and have weekly visitation with mother. They believed if minor was returned to his mother, it should be over a transition period of three months or more.
The Department concluded mother had demonstrated and maintained over a period of time that she was capable of safely parenting her children, and had addressed the issues that brought the family to the attention of the Department. Mother had built on and maintained her relationship with minor to the best of her ability and intended to keep the guardians involved in his life. Further, if minor reunified with mother, he would be able to build on and maintain a relationship with his biological siblings. Therefore, the Department recommended minor be returned to mother's care and mother be offered family maintenance services. The Department would work with all involved parties to transition minor slowly into mother's full-time care.
A first addendum report prepared in September 2018 requested mother be provided overnight visits with minor. The guardians reported minor no longer had any behavior changes after visits and appeared to enjoy his time with mother.
In November 2018, the Department filed an at-issue memorandum recommending the court return minor to mother's custody, finding return was in his best interests. At a hearing a few days later, the Tribe stated it agreed with the Department's recommendations. Mother filed her section 388 petition the same day, alleging she had successfully completed the objectives of her case plan and had continuously bonded with minor during weekly, unsupervised visits. In addition, minor had begun bonding with his siblings who resided with mother and expressed a desire to be with them. The petition also alleged return to mother would be in his best interest because he would regain a connection to the Tribe, as one of his siblings was a member of the Tribe and mother had continuously facilitated that connection. The court ordered a hearing on mother's section 388 petition.
In January 2019, the Tribe filed a statement of an Indian Child Welfare Act expert regarding the value and importance in access and participation in culture. The expert stated Karuk boys have a variety of distinctive roles and expectations they need to learn and have exposure to in order for them to develop a role within the Tribe. Men in the Tribe, including "extended family, cousins, uncles, grandfathers, and other male community members" educate boys through dances and ceremonies, and by "demonstrating and verbalizing sacred Karuk laws that have been instilled since time immemorial." Minor was at an age when he needed to be learning these things if he was going to carry on his tribal traditions, and someone from another tribe could not teach these things to minor. The expert also stated his "understanding that this child in particular has been invited to the High Mountain dance and their Karuk family is also very knowledgeable and respected within the dance community and culture." Living in an Indian home did not carry the same weight or value that having contact with his tribe's culture provided.
Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA).
The hearing on mother's section 388 petition was continued for a "Family Team Meeting," apparently to explore a negotiated plan for minor. When that was not successful, the hearing was continued to February 2019 for a contested hearing. In the meantime, the Tribe filed its own section 388 petition, requesting the court order that whoever obtained custody of minor ensure that he participate in Karuk traditions, including, at a minimum, the yearly Karuk reunion, the yearly cultural event sponsored by the Karuk Tribe Child and Family Services, attend the annual Brush Dance, and that the party with custody check in with the tribal social worker on a biannual basis.
At the February 2019 hearing, the court granted the Tribe's section 388 petition. The court then turned to mother's section 388 petition. The court noted both the Tribe and the guardians had filed at-issue statements. The court said it did "have the pending Post Permanency Planning report and also an addendum to the status review." The Department confirmed it was relying on those reports in response to the section 388 petition, as well as the at-issue statement it had filed in November 2018.
Mother's counsel asked the court to follow the Department's recommendations in its reports, terminate guardianship, and return the child to mother based on her completion of reunification services. The guardians' counsel and minor's counsel both indicated they opposed mother's petition. Counsel for the guardians argued there had not been any presentation as to why it would be in the best interests of the child to terminate the guardianship. Counsel for the Department said the case presented a "very unique situation" and stated the Department was recommending return. The Tribe indicated that while it generally supported return of children to biological parents as long as it was safe, this situation was sensitive in that the Tribe did not want to strain any relationship it had with the parents or guardians, "not knowing how this case is going to fall out." Counsel emphasized the Tribe's primary interest was to facilitate and support contact between minor and the Tribe regardless of who was the custodian.
After hearing argument from the parties, the court indicated it would take the matter under submission. The court acknowledged it was "not an easy case" and said, "I don't know how I'm going to rule." The court indicated it was going to look at "all the pleadings" and "because of the complexity, I'm going to try to get a written ruling."
On March 28, 2019, the court denied mother's section 388 petition. The court delivered its oral ruling from the bench, stating in part as follows:
"Just because the Court granted family reunification services to the mother, does not guarantee termination of an established guardianship.
"Further, the Court will note that F.R. was granted to the mother partly because father's—at that time—positive involvement in the case and it was sort of like well if dad is going to get stuff, maybe mom should too, which did not end as anticipated.
Presumably short for "family reunification" services.
"And regret now to some extent offering those services because—just because father was getting them.
"However, a 388 is not to be granted unless both of the prongs of the statute are met; that is, change in circumstances and in the child's best interest.
"The mother did not maintain her burden, even if it is as low as preponderance of the evidence, that return of the child to the mother is in the child's best interest.
"The guardians can and do meet the child's unique set of needs. The guardians are committed to maintaining relationships important to the child, including sibling relationships in the matter." The court terminated any additional services to mother. Mother timely appealed.
II. DISCUSSION
Mother's sole contention on appeal is that the trial court abused its discretion in denying her section 388 petition because it was in minor's best interests to be raised by a fit biological parent.
"To prevail on a section 388 petition, the moving party must establish that (1) new evidence or changed circumstances exist, and (2) the proposed change would promote the best interests of the child." (In re J.T. (2014) 228 Cal.App.4th 953, 965.) The petitioner has the burden of proof on both points by a preponderance of the evidence. (Cal. Rules of Court, rule 5.570(h)(1)(D).) In assessing the petition, the court may consider the entire history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.)
We review a juvenile court's ruling on a section 388 petition for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) We reverse only if the juvenile court " ' "has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]." ' " (Id. at p. 318.) " ' ["]When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." ' " (Id. at p. 319.)
Here, the juvenile court rested its ruling on the second prong of section 388. Specifically, the court found mother failed to meet her burden to prove by a preponderance of the evidence that return to her would be in minor's best interests. We see no abuse of discretion in this ruling.
As an initial matter, the burden of proof was on mother to show return to her custody was in minor's best interests. We note that although the trial court ordered the parties to file at-issue statements and provide witness contact information before the hearing, there is no evidence in the record mother did either. Mother's counsel represented she would complete a bonding study, estimated a four-hour evidentiary hearing, and said she would "potentially" have witnesses at the hearing. But at the evidentiary hearing, the parties chose to rely on the Department's status report, addendum, the ICWA expert report, and a request for judicial notice of minor's sibling's case file.
Mother sought augmentation of the record on appeal with documents from J.G.'s file, which she claimed the trial court had judicially noticed. We denied the request because mother's counsel below did not request the juvenile court take judicial notice of the entire file, but only a report and an exit order. Further, it was unclear whether the juvenile court had taken judicial notice of those documents, and if it did, it appeared to give them limited weight. We also note one of the Department's status reports affirms that J.G. was returned to mother's care, so it is unclear what additional information those materials would provide.
To decide whether mother met her burden under the best interests prong, the juvenile court had to consider such factors as the seriousness of the problem that led to the dependency and the reason for the problem's continuation; the degree to which the problem may be and has been removed or ameliorated; and the strength of the relative bonds between the dependent child and the child's parents and caretakers. This list, however, is not exhaustive. (In re B.D. (2008) 159 Cal.App.4th 1218, 1229; In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-532.)
Here, the problem which led to the dependency—mother's extensive history with substance abuse—was very serious. Though mother argues "there was never any evidence that [minor], or for that matter any of the children, suffered any harm" as a result of her substance abuse, we cannot agree. Minor and at least two of his half siblings tested positive for methamphetamine at birth. And while mother had been sober for two years at the time of her section 388 petition, the record describes a history of substance abuse dating back to at least 2005. Further, as mother herself argues, overcoming substance abuse is "a lifelong process." But even assuming mother had removed or ameliorated her substance abuse problem, this fact alone did not mean it was in minor's best interests to return to her custody.
Significantly, mother presented virtually no evidence regarding her bond with minor. The status review reports indicated only that mother had consistently visited minor, unsupervised, twice a week, the visits had gone well, and occurred without incident. The guardians reported minor no longer had behavior changes after visits with his parents and seemed to enjoy his time with his mother. The social worker stated mother "built on and maintained her relationship with [minor] to the best of her ability." But nothing in the social worker's report describes the nature or strength of mother's bond with minor. Though mother alleged in her petition that she and minor had "continuously bonded" during unsupervised visits, and minor had begun bonding with his siblings who resided with mother and expressed a desire to "be with them" generally, the court did not admit the petition as evidence, and no other evidence was presented as to minor's wishes or his bond with mother. We also note when minor was born, he tested positive for methamphetamine, and the record reflects that before minor was detained, mother had "not been willing or able to provide active parenting, supervision and care for her children," mother relied on extended family members to assist in raising her children, and minor spent most of his time in a relative's home. In the first six months of his dependency, mother did not visit minor, request visits, or maintain contact with the Department. Such evidence makes it particularly difficult to discern how much minor had bonded with mother before he was detained in 2015 and assess the strength of his bond with her now.
Moreover, there was substantial evidence in the record that minor had developed a significant bond with the caretakers. He had lived with them for the past three years—at that point, half his life. He called both of the guardians "mom," and they reported he had blossomed and was a part of their family. He referred to their other children as his siblings and was a healthy, happy child with no reported mental, emotional, developmental or medical issues.
In addition, despite mother's impressive success in complying with her case plan, and the return of her other children, the record also shows mother was parenting under difficult circumstances. She lived in a three-bedroom apartment with five children, worked full time, and though sober for two years, was still recovering from an extensive history of substance abuse. Mother reported to the social worker her home was "very crowded," she was "overwhelmed" by J.G., was struggling with meeting his mental health needs and addressing his "explosive behavior," and was very worried for the health of her one-year-old son with cancer. These circumstances would put a tremendous strain on anyone, let alone someone recovering from a lengthy history of substance abuse who recently regained custody of her other children. While the caregivers supported continued visitation with mother, they expressed concern minor would not receive the attention he needed if he returned to mother's care.
Though the Tribe told the court in November 2018 and January 2019 it supported return to mother, its at-issue statement and argument at the section 388 petition hearing were more equivocal. Counsel for the Tribe said the Tribe "generally supports return of the children to their biological parents so long as it's safe," but emphasized the Tribe wanted to avoid straining its relationship with either the parents or guardians and stated its primary interest was to facilitate ongoing visitation with the Tribe. Accordingly, the Tribe filed its own section 388 petition (which the trial court granted) to ensure whoever became custodian would facilitate minor's connection with the Tribe through participation in specific Karuk activities.
We recognize this case was a difficult one for the juvenile court, not least because it was forced to choose between two families, both of whom love minor very much and both of whom may have been able to provide a stable, loving home where he remains connected to his siblings, other relatives, and his tribe. We can only express our hope, as did the juvenile court, that these families can find a way to remain connected in the interest of allowing minor to be loved and cared for by as many people as possible. It is also a difficult case because mother demonstrated her commitment to regaining custody by complying with her case plan, maintaining her sobriety and full employment, and garnering the support of the Department and the Tribe to have minor returned to her care. As we have explained above, however, there were substantial conflicts in the meager evidence presented as to what was in minor's best interests. Though it was mother's burden to present evidence, she did not file an at-issue statement, call any witnesses, or present a bonding study as her counsel suggested she would do. On appeal, we review the trial court's ruling for an abuse of discretion, construing all evidence in favor of the juvenile court's ruling. As our courts have noted, it is a rare case in which we reverse the denial of a section 388 petition. (In re Kimberly F., supra, 56 Cal.App.4th at p. 522; In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.) On this record, we perceive no abuse of discretion in the juvenile court's determination that mother failed to meet her burden to demonstrate return to mother's custody would be in minor's best interest.
We intend siblings to encompass both his biological siblings and the other children of his guardians, whom minor considers siblings.
Acknowledging this, we also feel compelled to mention that we agree with mother's statements in her opening brief on appeal that some of the statements made by the trial court in this case were troubling. In particular, we were disappointed to read the trial court "regret[ted] to some extent" its decision to give mother reunification services, when mother's success in complying with her case plan and commitment to developing her relationship with minor demonstrated it was the right decision. Though the court's inartful observation does not affect our decision on the merits of this appeal, such statements do little to make parents appearing before the juvenile court feel they are being treated with respect and fairness. --------
III. DISPOSITION
The order denying mother's section 388 petition is affirmed.
/s/_________
Margulies, Acting P. J. We concur: /s/_________
Banke, J. /s/_________
Sanchez, J.