Opinion
E073008
10-03-2019
K.K., Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Real Party in Interest.
Friedman and Cazares, and Monica Cazares for Petitioner. No appearance for Respondent. Michelle D. Blakemore, County Counsel, and Jamila Bayati, Deputy County Counsel, for Real Party 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J266439 & 266440) OPINION ORIGINAL PROCEEDINGS; petition for extraordinary writ. Christopher B. Marshall, Judge. Petition denied. Friedman and Cazares, and Monica Cazares for Petitioner. No appearance for Respondent. Michelle D. Blakemore, County Counsel, and Jamila Bayati, Deputy County Counsel, for Real Party in Interest.
I
INTRODUCTION
This case arises from a lengthy dependency matter which began in 2016 when the children, now nine-year-old G.G.-K. (G.) and seven-year-old D.G.-K. (D.), were removed from parental custody due to substance abuse by both parents, K.K. (Mother) and J.G. (Father). Mother was provided with reunification services but failed to reunify with her sons. The boys were placed in a permanent plan living arrangement (PPLA) with the goal of adoption. This is the first writ petition but second appellate proceeding involving this family. In this appeal, Mother argues the juvenile court prejudicially erred in (1) granting the San Bernardino County Children and Family Services' (CFS) request to reduce her visits without notice and due process, and (2) summarily denying her Welfare and Institutions Code section 388 petition without an evidentiary hearing. We reject both contentions and deny the writ petition.
Father is not a party to this appeal.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
II
FACTUAL AND PROCEDURAL BACKGROUND
The factual and procedural background until the denial of Mother's first section 388 petition in July 2018 is taken from this court's prior nonpublished opinion in case No. E071004 unless otherwise noted. (In re D.G. (Apr. 5, 2019, E071004) [nonpub. opn.].)
The family came to the attention of CFS on July 18, 2016, when a referral was received alleging Mother and the children were involved in a car accident and Mother fled the scene with her six-year-old and four-year-old sons. In addition, one of the boys was not in a safety car seat. The social worker responded to the referral and interviewed the family. Mother denied she was driving the vehicle. However, D. reported that Mother was driving. Mother gave D. a harsh look and called him a liar. D. insisted that Mother was driving. Mother would only allow the children to be interviewed in her presence. When G. stated that Mother spanked him with a belt, Mother accused G. of lying. Mother reported that she and the children lived with the maternal grandfather. When the children reported that was not true, Mother called them liars. The children smelled like they had not bathed in a while and when asked what they had eaten that day, Mother answered for them and told them not to lie about it. Mother stated that she used marijuana but denied use of any other substances. Mother was arrested for outstanding warrants and cited for child endangerment but was released before the detention hearing.
Mother wanted the children to be released to the maternal grandfather, who had a long history of arrests. When Mother was informed that CFS would not allow the children to be placed with the maternal grandfather, she remembered Father's phone number. Father was at the hospital in the parking lot. Father reported that he knew Mother was homeless and that the children were not properly cared for but did not apply for custody of the children because he feared Mother would disappear with the children. The paternal grandmother reported that Father lived with her and the paternal grandfather and that they were willing to allow the children to live with them. The children were detained with Father.
On July 20, 2016, petitions were filed on behalf of the children pursuant to section 300, subdivision (b) (failure to protect). The following day, the children were formally removed from Mother's custody and detained with Father on the condition they live with the paternal grandparents. The parents were ordered to submit to drug testing that day. Mother was provided with supervised visitation two times per week for two hours.
Mother and Father both tested positive for methamphetamine and marijuana on July 21, 2016. Father admitted to using methamphetamine the night before the detention hearing on July 20, 2016. As a result, on August 4, 2016, the children were removed from Father's care and placed in a confidential foster home. The family had a prior history with CFS involving allegations of physical abuse and severe neglect in February 2011, and general neglect in March 2013, June 2013, June 2014, and March 2016. CFS found the prior allegations "unfounded." Mother also had a criminal history for driving with a suspended license, receiving stolen property, failure to appear, and trespassing.
Father knew that Mother had abused controlled substances and methamphetamines for the last eight years and resided in a tent with the children. He also stated that Mother abused alcohol. Mother admitted that she and Father had used marijuana and methamphetamines together when they were a couple. The social worker concluded Mother was intoxicated and did not have proper booster seats for the children when the accident occurred. Mother dropped out of school in the 11th grade and did not have a job.
On August 10, 2016, first amended petitions were filed on behalf of the children adding an allegation regarding Father's substance abuse.
The jurisdictional hearing was held on August 11, 2016. Both parents were present and filed waiver of rights forms, submitting on the first amended petitions. The juvenile court found true the allegations in the first amended petitions. Thereafter, the court continued the hearing for ICWA noticing, and ordered CFS to provide an update on the status of placing the children with the paternal grandparents. The dispositional hearing was set for September 8, 2016.
At the dispositional hearing, the juvenile court noted that ICWA might apply, and that ICWA noticing had been initiated. The children were declared dependents of the court and placed in a foster home. The court provided reunification services to the parents and ordered them to participate in their case plan. Mother's case plan required her to participate in and complete general counseling, a parenting education program, an outpatient substance abuse program, and random drug testing. Her plan objectives included staying sober and demonstrating her ability to live free from alcohol dependency.
By the six-month review hearing, Mother had made moderate progress in her case plan. However, she was terminated from two outpatient treatment programs due to her lack of attendance. On January 5, 2017, Mother began attending an inpatient residential treatment program at Cedar House. However, she was discharged from the program on April8, 2017. Mother stated that she had last used methamphetamine on July 23, 2016, and marijuana on December 31, 2016, but laboratory results indicated that she had tested positive for THC on October 24 and 31, November 8, and December 5, 2016. She had also tested positive for marijuana 10 times from August to December 2016 and had failed to show for two drug tests in January 2017. A Cedar House report further indicated that she had tested positive for an unspecified substance on January 16 and February 14, 2017, and negative three times in January and February 2017.
In addition, a February 2017 Cedar House report noted that Mother had attended a 12-Step program and had only made it to Step 5. She had also attended general counseling and a parenting course. However, she had displayed negative behavior and succumbed to peer influence. Furthermore, a March 2017 Cedar House report indicated that Mother had been terminated from the Cedar House residential treatment program due to violating house rules, testing positive for substances, using another client's debit card, giving her EBT card to another client to make purchases, and being in a relationship with another client. When confronted about her violations, Mother became argumentative. She was referred to transitional housing.
Mother consistently and regularly visited the children. The visits were described as positive and the children were happy and excited to see Mother. Mother also attended school meetings addressing D.'s speech deficits, and visited the children, with food and activities for the children. D. and G. had resided with Ms. and Mr. N. since August 9, 2016, and had developed a bond with their caregivers.
On March 8, 2017, at the six-month review hearing, the juvenile court continued reunification services for both parents and provided the parents with supervised visits twice a week for two hours.
By the 12-month review hearing, CFS recommended terminating the parents' reunification services and setting a section 366.26 hearing. The prognosis for reunification with Mother was poor. Mother had attended multiple substance abuse treatment programs in the past year but had failed to complete a single program. She had tested positive for methamphetamine on May 22, and July 5 and 6, 2017, and failed to test on six occasions between April and July 2017. Mother was given several opportunities to be truthful about her positive methamphetamine results, but instead blamed others and minimized the reasons for her use. Regarding her positive methamphetamine result from May 22, 2017, Mother at first admitted she "'smoked'" because she was stressed, and later told her counselor that she had accidently ingested methamphetamine by drinking her brother's energy drink. She claimed that she felt funny and learned her brother had dropped his "'dope"' in the drink when he was running from the police. Mother's positive drug tests led to her termination from Inland Valley Recovery Services (IVRS) on July 13, 2017.
The social worker opined that Mother failed to demonstrate she could remain sober. She continued to associate with people who abused substances and hindered her progress. She seemed "unwilling to learn and incorporate alternative coping mechanisms [outside of substance abuse] to help her effectively deal with any past experiences of grief and loss." When her counselor asked her to explain her negative behaviors, Mother became defensive and argumentative. On April 20, 2017, Mother admitted that she had the opportunity to move to a sober living home, but chose to reside with her boyfriend, even though the sober living home had the support system she needed, a structured recovery program, and would have allowed her boys to reside with her in the future. The social worker strongly encouraged Mother to make better choices, to no avail. Mother lived with her boyfriend and his aunt. Her boyfriend had a criminal history and was in the vehicle when Mother had the car accident, which led to the children's removal. Mother indicated that she wanted to provide the boys with a stable home, but she resided in an uninhabitable residence.
Mother continued to regularly visit the children. The boys appeared bonded with Mother, but her visits remained supervised for their safety. Mother lacked the ability to set boundaries for the boys, who acted out, played too rough, and would not listen to Mother. The caregivers noted that the boys played rough, and as a consequence sustained bruises and scratch marks. G. was aggressive with other children and attended counseling sessions.
The 12-month review hearing was held on August 21, 2017. At that time, the juvenile court terminated reunification services, ordered ongoing supervised visits, and set a section 366.26 hearing.
On December 11, 2017, CFS requested a 120-day continuance to allow CFS to assess a concurrent planning home for the children.
Mother was appropriate with the children at her supervised visits. The boys enjoyed spending time with Mother and were hopeful they would return to her care. Mother genuinely tried to engage in different activities with the boys. The boys adjusted well to their caregivers. However, the caregivers did not want to be considered a concurrent planning home. The boys continued to play rough with each other, and G. also was aggressive with other children.
At the December 19, 2017 section 366.26 hearing, the juvenile court gave CFS authority to place the children in a concurrent planning home, and to publish the children's information in the Heart Gallery, or other such platforms, to locate an adoptive home for the children. A further section 366.26 hearing was set for April 18, 2018.
On March 28, 2018, CFS requested a 90-day continuance to allow CFS more time to locate a concurrent planning home. D. was in kindergarten and G. was in the second grade. Both children appeared to be healthy and developmentally on track. However, G. displayed emotional problems at school. He threw temper tantrums, physically attacked another student, threw furniture, and threatened to cut himself. G.'s caregiver noted that he was moody and unhappy after visits with Mother, and that he was disrespectful to his caregiver. When questioned about his moods, G. indicated he was angry that Mother did so poorly with reunification services. G. received a new therapy referral. D. was polite with his caregivers, but he often fought with G. The caregivers met the children's developmental, physical, academic, and emotional needs. The boys appeared eager to spend time with Mother, but understood that they might not be able to visit her in the future. The social worker opined the likelihood of the children being adopted was good, as a man residing in San Diego, Mr. R., was interested in adopting the children. The children were excited about this prospect. CFS arranged a visit with Mr. R. and the children.
On April 18, 2018, the court set a further section 366.26 hearing for June 18, 2018, to allow the children to transition to Mr. R.'s home.
On June 13, 2018, CFS reported that the boys had transitioned to Mr. R.'s home, but Mr. R. requested their removal because of the boys' behavior. The boys were defiant, destructive, and aggressive with Mr. R.'s dogs, and each other. During one such incident, G. asked Mr. R. if he could go swimming, and Mr. R. told him that they needed to eat and Mr. R. needed to run errands. While Mr. R. showered, G. opened the door and let Mr. R.'s dogs run away. After searching for several hours, Mr. R. located his dogs.
In addition, D. had threatened to tell the social worker that Mr. R. hit him, which was untrue. The boys' babysitter had also quit, explaining she was not equipped to deal with the children's behaviors. Further, Mr. R. was exhausted from driving from his home in San Diego to the San Bernardino area for visits and therapeutic services for the boys. Mr. R. believed that he was not the best fit to provide the boys with permanency and stability.
At the further section 366.26 hearing on June 18, 2018, the court ordered PPLA with a goal of adoption and set a review hearing for December 18, 2018.
On July 13, 2018, Mother filed a section 388 petition, requesting that the children be returned to her care or, in the alternative, that reunification services be reinstated with liberalized visits. Mother claimed in an unsworn declaration that she was "now in a position to safely and adequately parent" her children. She also declared, "I know that it is important to be sober for my children, but I have learned that I have to be sober for myself as well. I am a better person today and I know I will and can be a better parent." She further stated that she had attended weekly visits and reported that the boys enjoyed them and felt sad when they had to leave. She had also begun working 30 to 40 hours a week at a fast food restaurant two weeks earlier, earning $11 an hour.
Mother claimed that she had completed her case plan, a 12-Step program, and an inpatient treatment program on April 25, 2018. She further declared that she had attended an inpatient substance abuse program and narcotics anonymous (NA) meetings, as well as remained sober. Mother's petition was supported by certificates from Cedar House indicating she had completed a parenting course, an anger management course, and substance abuse treatment on April25, 2018. Mother stated that while in the inpatient program, "I tested negative for all illegal substances." She indicated that in group therapy, she learned to cope with addiction, and "I am attending NA meetings on a regular basis. (Please see attached sign in sheets.)" The 12-Step sign-off sheets ended June 5, 2018, but the petition was filed on July 13, 2018, and it did not indicate she obtained a 12-Step sponsor, or what steps she had completed. The petition also did not include drug test results for Mother, such as laboratory results or a summary of testing from Cedar House up until July 13, 2018, when the petition was filed. When addressing the children's best interest, Mother stated that she had regularly visited the children, and that the boys "have behavioral issues and have been moved from several placements in the past few months." Mother believed that the boys' behaviors were due to being separated from her.
On July 16, 2018, the juvenile court summarily denied Mother's section 388 petition, noting the petition failed to state a prima facie case of changed circumstances, and the proposed change in order was not in the children's best interest.
On July 27, 2018, Mother filed a timely notice of appeal from the juvenile court's denial of her section 388 petition without a hearing. This court affirmed the juvenile court's order summarily denying Mother's section 388 petition on April 5, 2019.
CFS continued to recommend PPLA with the goal of adoption. Mother admitted she was no longer working and was residing with her boyfriend, later fiancé, in a one- bedroom residence. Mother's fiancé had been in and out of custody for violent crimes and drug charges, and he never completed any substance abuse treatment programs. Because Mother conveyed her intent to reunify with the boys, CFS nonetheless provided Mother's fiancé with an application to submit fingerprints so he could attend visits with Mother and the boys.
The children's caregivers reported the boys were loving, sweet, helpful, and caring, but tended to get angry quickly and hit and kick. The boys participated in weekly therapy sessions that focused on their behaviors, length of time in foster care, and previous failed adoptive placement. D. had speech delays. His caregivers were planning to have him reassessed for special education services. D. also tended to wet the bed nightly, although his bedwetting incidents were diminishing. The boys were residing in their third out-of-home placement since they were placed in foster care. Ms. H. and Mr. C. had custody of the boys for almost six months, but they were not a concurrent planning home.
Mother was allowed to call the boys each week, but she did not do so consistently. During an in-person visit, the caregiver saw the boys give Mother a card with money inside. The boys later admitted they gave their weekly $5 allowance to Mother so she could buy a new home. Mother visited the boys weekly for two hours, however, she rarely asked for updates about the boys.
On December 18, 2018, the juvenile court ordered PPLA with a goal of adoption and ongoing supervised visits with Mother.
In a packet dated May 9, 2019, the social worker requested the court to curtail Mother's supervised visits from weekly to monthly. The packet reflected the lengthy procedural history of the case and the boys' placement history. The packet also noted that two adoptive homes were located for the boys. The social worker opined the reduction in visits was necessary to allow the boys to transition to their new home and family. Mother was appropriate at visits, but she failed to make changes to provide a safe home for the boys, and resided with her fiancé, who had an extensive criminal record dating from 2006 to 2018. Mother also failed to demonstrate she had resolved her substance-abuse lifestyle and was sober. The social worker further reported that "[b]oth children have expressed the desire and are able to see the long-term benefits of being part of a permanent family. However, they are still wresteling [sic] with feelings of guilt and loyalty with their mother. It has been reported that mother will ask the children to 'wait for me' and this is contributing to confusion on the part of the children." The social worker was concerned about the boys moving out of ripe ages for adoptability purposes and noted that "there are two concurrent homes willing to adopt the children together." The social worker believed that "[i]f denied this opportunity, the children will likely remain in foster care for another 10 or more years."
In support of curtailing Mother's visits, the social worker attached a letter from the boys' therapist, who provided weekly therapy for the boys. The boys' therapist opined that reducing Mother's visits would allow the boys to move through stages of loss and grief, and increase the boys' ability to "arrive at a stage of acceptance and hopefully have a successful and healthy attachment with their new prospective adoptive family." The therapist also believed that the boys' prior failure in their prospective adoptive home due to their behavioral issues was a result of "their strong conflicting feelings of disloyalty with their biological mother." The therapist noted: "Ambivalent loss is a significant part of the complicated adoption experience for everyone involved. I strongly believe the boys will be undergoing and experiencing their losses throughout the entirety of their lives. [¶] Yet at this time, it may be of assistance for the boys to begin their grief process by experiencing a reduction in biological family contact."
Line-out redactions on the packets indicated Mother's attorney did not receive notice of CFS's request to curtail visits.
Mother's attorney received email notice from the social worker that the packet would soon arrive, but not notice of the content of the packet.
On May 29, 2019, the juvenile court approved CFS's request, curtailed Mother's supervised visits to monthly, and wrote "therapy for child to continue" on each packet.
On June 3, 2019, Mother's attorney filed an objection to the May 9, 2019 packet requesting a reduction in Mother's visits. The court set a special hearing to address Mother's counsel's objection for June 18, 2019.
CFS recommended the court set a section 366.26 hearing, as two potential adoptive families had been located for the boys. The boys' initial anger and aggression had resolved, and their overall behaviors were normal and age-appropriate. The boys still attended therapy sessions with their therapist and expressed their desire to meet with the potential adoptive family. The boys also reported that they wished to have a traditional adoptive home with a mother and father, and were willing to move forward with being adopted. Mother continued to regularly visit the boys each week for two hours, but, again, she rarely asked the caregiver for updates on the boys. Mother's fiancé was not approved to attend the visits with Mother as he had an extensive criminal history. As of May 21, 2019, Mother's visits had not been curtailed.
On June 12, 2019, Mother filed another section 388 petition, requesting liberalized visits and reinstatement of reunification services. Mother claimed that she had completed a substance abuse and 12-Step program, attended NA meetings, remained sober, completed outpatient drug treatment at IVRS, and tested negative on three occasions. Regarding the boys' best interest, Mother asserted that she visited regularly, and was bonded with the boys, who desired to continue their relationship with her. She also stated that the boys showed their affection, love, and bond with her at each visit. The petition was verified by Mother's attorney, not by Mother.
In an unsworn declaration supporting the petition, Mother claimed "I have fully committed myself to my sobriety and to continuing to nurture the bond that my children have with me." She also asserted that at IVRS she was required to drug test, and her tests were negative. She referenced attached drug test results from December 28, 2018, January 4, 2019 and February 7, 2019, however, the December 28 result was a "dilute" purportedly due to abnormally low creatinine. Further, although in September 2018 Mother stated she was unemployed, she claimed in her June 2019 section 388 petition she was employed at a gas station as a cashier for nearly a year and worked approximately 40 hours per week. She attached paystubs confirming her employment, however, those paystubs were from December 2018 to April 2019. Mother also asserted she had resided in a one-bedroom apartment for almost two years, terminated her relationship with her fiancé, and resided alone. She did not provide a copy of her lease agreement. Mother attached drawings and notes given to her by the boys professing their love for her and telling her she was "the best mom." Photographs of Mother and her boys smiling were also attached to the petition. In addition, Mother expressed curtailing her visits would be detrimental to the boys, whose best interest would be served with Mother engaging in reunification services. Mother did not attach NA attendance logs verifying her claim that she was attending NA meetings.
On June 12, 2019, the juvenile court summarily denied Mother's section 388 petition, finding the petition did not state new evidence or a change of circumstances and that reinstatement of reunification services for Mother did not promote the boys' best interest.
On June 14, 2019, a court clerk noticed Mother's attorney of the denial of Mother's section 388 petition by depositing the notice in Mother's counsel's mail bin at the court. On this same date, the clerk also mailed notice of the denial to Mother's given address in San Bernardino.
On June 18, 2019, Mother was present at the combined permanent plan/special hearing addressing Mother's counsel's objection to the May 9, 2019 packet requesting a reduction in Mother's visits. The juvenile court noted it had already denied Mother's section 388 petition filed on June 12, 2019. Mother's counsel objected to the court's approval of CFS's May 9, 2019 packet, because she was not noticed of the content of the packet and requested a hearing on that issue since Mother had consistently visited her boys. Mother's counsel also noted that Mother understood CFS was moving toward setting a section 366.26 hearing but the boys were not in a concurrent planning home and that Mother sought return of the boys, filing two section 388 petitions to demonstrate her commitment to sobriety. Mother's counsel reiterated her request for an evidentiary hearing on the visitation issue "to cross-examine the therapist who wrote the letter that was attached to the packet" and to have "the children testify as well."
CFS's counsel stated CFS would investigate the noticing error, but advised that Mother's visits had only been curtailed for about a week-and-a-half or two weeks. CFS's counsel requested the court to sign the May 9, 2019 packet or reduce the visits, arguing the focus was on the boys' permanency and the goal was to allow the boys to attach to adoptive parents and begin the grieving process. CFS's counsel further stated that the boys had expressed an interest in being adopted and having a permanent family. The children's attorney submitted the issue to the court, noting Mother's counsel was correct that the children enjoyed their visits with Mother.
The court noted the May 9, 2019 packet was signed on May 29, 2019, and acknowledged CFS did not notice Mother's counsel with the packet. However, the court also pointed out that CFS had found two potential adoptive families for the boys, explaining: "[R]egardless of what the therapist said in the attachment to the packet, what the Court is focusing on is this stage of the case where we're at now, with respect to Mother having submitted two [section] 388s, both of which were denied . . . [¶] . . . [¶] . . . that the shift now is to focus on these children and . . . on their permanency and stability."
Mother's counsel responded the boys "failed out at one adoptive home and my client believes as the 388 indicated in the letters from the children themselves and the parties and drawings that they submitted they want to go home." The juvenile court noted Mother's counsel's objections, but found it was in the boys' best interest to consider termination of parental rights, and set a section 366.26 hearing for October 16, 2019. The court ordered ongoing monthly supervised visits for the parents one time a month for two hours, but gave CFS authority to increase those visits. The court also provided Mother with her appellate writ rights.
On June 19, 2019, Mother in pro per filed a notice of appeal from the court's June 12, 2019 order summarily denying her section 388 petition. However, on June 27, 2019, this court dismissed the appeal. We explained: "An order is not separately appealable that denies a petition to modify an existing order made by the court (Welf. & Inst. Code, § 388) at a hearing at which an order also sets a selection and implementation hearing (Welf. & Inst. Code, § 366.26); rather, either order can only be reviewed by writ petition. [Citations.] As the juvenile court set a selection and implementation hearing at the June 18, 2019 hearing, [Mother] must proceed by way of a writ petition."
On June 19, 2019, Mother in pro per also filed a notice of intent to file a writ petition from the June 18, 2019 hearing "to challenge the findings and orders made by the court on that date . . . ." The notice of intent to file a writ petition did not include the May 29, 2019 order curtailing Mother's visits or the June 12, 2019 order wherein the juvenile court summarily denied Mother's second section 388 petition.
Although Mother was represented by appointed counsel in the juvenile court, she completed the notice of appeal and the notice of intent to file a writ petition herself.
On July 10, 2019, the boys were moved into an adoptive home with Mr. and Mrs. C. The boys were aware Mr. and Mrs. C. desired to adopt them, and the boys had stated they also want to be adopted. A CFS packet, dated August 7, 2019, indicates the boys had adjusted well to their new family and home.
On September 12, 2019, CFS filed a request for judicial notice of two certified minute orders dated August 7, 2019, indicating the boys were moved into Mr. and Mrs. C.'s home on July 10, 2019. On September 26, 2019, Mother filed an opposition to CFS's request for judicial notice. By order dated September 16, 2019, we reserved ruling for consideration with the appeal. We hereby grant the request for judicial notice. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
III
DISCUSSION
A. Reduction in Visitation
Mother argues the juvenile court committed reversible error when it granted CFS's request to reduce her visitation without notice and due process. She also asserts that the reduction in her visits was not in the children's best interest. CFS asserts that Mother's challenge to the court's reduction of her visits is moot because the children were placed in a concurrent planning adoptive home. Alternatively, CFS contends the approval packet was an appropriate means for CFS to request a curtailing of Mother's visits, any noticing error was harmless, and the juvenile court properly reduced Mother's visits since the focus was on the children's permanency and stability. Assuming, without deciding, the issue is not moot, we find the noticing error to be harmless. We also find the reduction of Mother's visits was in the children's best interest.
"[T]he Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." (Troxel v. Granville (2000) 530 U.S. 57, 66.) "Because a basic civil right of the parent is thus at stake [citation], significant due process safeguards have been built into the dependency scheme [citation] . . . ." (In re James F. (2008) 42 Cal.4th 901, 904.) It is not disputed that dependency proceedings must comport with the requirements of due process.
The significant safeguards built into the current dependency scheme "include representation by counsel to assist parents at every stage of the proceedings (§ 317), notice of all hearings and rights (§§ 307.4, 308, 311, 316, 335-336, 364-366.23), clear and convincing evidence for removal from custody (§ 361, subd. (b)), reunification services (§ 361.5), and review hearings at which services and progress are reviewed (§§ 366.21, 366.22)." (In re Marilyn H. (1993) 5 Cal.4th 295, 307-308 (Marilyn H.).)
Fundamental fairness is the touchstone of the right to procedural due process. (Gagnon v. Scarpelli (1973) 411 U.S. 778, 790.) In deciding the constitutional sufficiency of procedures as a matter of due process, the judiciary's role is limited to determining whether the procedures afforded meet the essential standard of fairness and the specific procedures required to satisfy the minimum requirements of due process. (See Landon v. Plasencia (1982) 459 U.S. 21, 34-35.)
A due process claim presents a question of law. Thus, we review Mother's contention de novo. (In re H.K. (2013) 217 Cal.App.4th 1422, 1433.)
Here, it is undisputed that Mother did not receive notice of CFS's May 9, 2019 packet requesting a reduction in Mother's visits. However, "[the U.S. Supreme Court has] long recognized that a 'mere error of state law' is not a denial of due process. [Citation.] If the contrary were true, then 'every erroneous decision by a state court on state law would come [to this Court] as a federal constitutional question.' [Citations.]" (Engle v. Isaac (1982) 456 U.S. 107, 121, fn. 21.) Accordingly, "errors in notice do not automatically require reversal but are subject to the harmless beyond a reasonable doubt standard of prejudice." (In re J.H. (2007) 158 Cal.App.4th 174, 183; see A.D., supra, 196 Cal.App.4th at p. 1327.)
Mother cites In re DeJohn B. (2000) 84 Cal.App.4th 100, for the proposition that an error relating to notice is reversible per se. That case, however, is inapposite. In DeJohn B., despite the fact that the mother was unaware of the dependency proceedings and had not been appointed counsel, the agency made no effort to locate her so as to give her notice of a hearing at which the juvenile court terminated reunification services. (Id. at pp. 104, 105.) In contrast, in cases where the parents have notice of the proceedings, courts have applied the harmless error analysis to errors relating to notice. (E.g., In re A.D. (2011) 196 Cal.App.4th 1319, 1325 (A.D.); In re Angela C. (2002) 99 Cal.App.4th 389, 395 [lack of notice is trial error, not structural error, and is therefore subject to harmless error analysis].)
The timing of Mother's complaints is significant in that it relates only to the period after reunification services were terminated and after the children were moved to an adoptive home. Before termination of reunification services, the state has an affirmative obligation to facilitate family reunification. (In re Julie M. (1999) 69 Cal.App.4th 41, 49.) Reunification services must include visitation between parent and child "as frequent as possible, consistent with the well-being of the child." (§ 362.1, subd. (a)(1)(A).) Accordingly, during the reunification period, "[v]isitation between a dependent child and his or her parents is an essential component of a reunification plan . . . ." (In re Mark L. (2001) 94 Cal.App.4th 573, 580.)
In contrast, "[a]fter the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point 'the focus shifts to the needs of the child for permanency and stability' [citation] . . . ." (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.); accord, Marilyn H., supra, 5 Cal.4th at p. 309.) Post-reunification, the juvenile court does not need to consider the possibility of family reunification unless the parent affirmatively demonstrates changed circumstances sufficient to revive the issue. (Marilyn H., at p. 309.) After reunification services are terminated, the juvenile court must "permit the parent . . . to visit the child" unless visitation would be detrimental to the child (§ 366.21, subd. (h)) so that the parent has a meaningful opportunity to demonstrate changed circumstances in support of a section 388 petition (Marilyn H., at p. 309), or to establish the parental-relationship exception of section 366.26, subdivision (c)(1)(B)(i). (See In re Hunter S. (2006) 142 Cal.App.4th 1497, 1504-1505 (Hunter S.).)
The juvenile court has the power and responsibility to regulate and define a parent's right to visit his or her children who have been removed from parental custody. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1373.) "The definition of such a right necessarily involves a balancing of the interests of the parent in visitation with the best interests of the child" and the court "may . . . impose any other conditions or requirements to further define the right to visitation in light of the particular circumstances of the case before it." (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757 (Jennifer G.).) "[D]ependency law affords the juvenile court great discretion in deciding issues relating to parent-child visitation, which discretion we will not disturb on appeal unless the juvenile court has exceeded the bounds of reason." (In re. S.H. (2011) 197 Cal.App.4th 1542, 1557-1558 (S.H.).)
Here, although Mother and her counsel did not receive notice of the May 9, 2019 packet requesting a reduction in visits, the juvenile court held a special hearing on June 18, 2019, to address the packet. At that hearing, Mother's counsel was unable to present an offer of proof justifying an evidentiary hearing and failed to demonstrate the curtailing of visits was improper. The court properly focused on the boys' permanency and stability in confirming the monthly visitation order. The boys had endured one failed adoptive placement due to their behavioral issues, conflicted loyalties between their caregiver and Mother, and transportation challenges due to Mother's weekly visits being held so far from the caregiver's home. Therefore, after the first adoption effort failed and the boys had another opportunity for adoption, CFS recommended curtailing Mother's visits with the suggestion of the boys' therapist. The social worker and the boys' therapist believed it was important for the boys to grieve the loss of their parents and to curtail visits with Mother so they had a better chance of bonding with their prospective adoptive parents. The juvenile court properly reduced Mother's supervised visits from at least weekly to at least once a month for two hours.
It is hardly uncommon, and is entirely appropriate, for visitation to be decreased once the focus of the dependency has shifted from the parent's interest in reunification to the child's need for permanency and stability. (E.g., S.H., supra, 197 Cal.App.4th at p. 1559.) The juvenile court reasonably determined that decreasing visitation with Mother, in anticipation that the children would need to bond to a new prospective adoptive family, and to facilitate CFS's efforts to identify such a prospective adoptive family, was in the best interest of the children. (See ibid. [affirming order reducing visitation to twice a year for two hours, to promote attachment to new caregivers].)
Mother suggests that the juvenile court committed reversible error by modifying her visitation in the absence of a section 388 petition by CFS. We disagree. A section 388 petition is an "appropriate procedural mechanism to use when a party seeks a modification of a court order based on new evidence or changed circumstances . . . ." (Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 99.) But section 385 provides that a dependency court order "'may at any time be changed, modified, or set aside, as the judge deems meet and proper,'" after providing the parties with notice and an opportunity to be heard. (See Nickolas F., at p. 111.)
Mother relies on Hunter S., supra, 142 Cal.App.4th 1497 to support her claim that reduction in visits with the boys denied her an opportunity to establish a beneficial relationship exception to adoption and that CFS should have liberalized the visits, rather than reducing them. In Hunter S., "the court granted visitation in theory, [but] none was permitted in reality." (Id. at p. 1505.) There, the juvenile court ordered visitation "'as can be arranged,'" and the child ultimately was given virtually complete discretion to control his contact with his mother. (Ibid.) The mother spent more than two years asking the court to enforce the visitation order, but the court did nothing in response. (Ibid.) The juvenile court in Hunter S. "did not believe it had the power or duty to ensure visits actually took place." (Ibid.)
Hunter S. is inapposite, however, because there is no evidence here of a failure to enforce a visitation order or improper delegation. Rather, based on the evidence submitted, the court curtailed Mother's visits. In addition, at the June 18, 2019 special hearing, the court permitted CFS authority to liberalize Mother's visits. Accordingly, Hunter S. is distinguishable, and Mother has not demonstrated that the juvenile court failed to enforce its visitation order as in Hunter S.
In conclusion, parents "have the right of visitation from the fact of parenthood. [Citations.] 'The parental right to have children and to the custody of those children is included among the liberties protected by the due process clause.'" (Jennifer G., supra, 221 Cal.App.3d at p. 756.) However, the time to take advantage of the due process "safeguards built into the dependency scheme" (Hunter S., supra, 142 Cal.App.4th at p. 1504), and the time to establish the factors contained in the exception to adoption of section 366.26, subdivision (c)(1)(A), occurred from the children's birth until reunification services were terminated. Having reviewed the record, we find CFS's failure to notify Mother of the May 9, 2019 packet requesting a reduction in visits was harmless beyond a reasonable doubt.
B. Section 388 Petition
Mother contends the juvenile court committed reversible error when it summarily denied her June 12, 2019 section 388 petition without an evidentiary hearing because her petition with supporting documents showed a prima facie case for changed circumstances and best interest of the children. CFS argues Mother forfeited her objection to the court's June 12, 2019 denial of her section 388 petition by failing to identify it in her notice of intent to file a writ petition (Judicial Council Form JV-820, hereafter "JV-820"), or at least by promptly filing an amended JV-820 identifying the June 12, 2019 denial of her section 388 petition. Alternatively, CFS asserts the juvenile court did not abuse its discretion in summarily denying Mother's section 388 petition.
1. Forfeiture
A JV-820 "must include all known dates of the hearing that resulted in the order under review." (Cal. Rules of Court, rule 8.450(e)(2).) Although Mother's JV-820 failed to include the June 12, 2019 date wherein the juvenile court denied the section 388 petition, we decline to find forfeiture under the circumstances of this case.
First, at the June 18, 2019 hearing, the juvenile court mentioned that it had received Mother's section 388 petition which was filed on June 12, 2019, and that the court denied it. Second, there is no dispute that Mother received notice of her appellate writ rights at the June 18, 2019 hearing. In addition, it is undisputed that Mother timely filed a JV-820. Since Mother was present at the June 18, 2019 hearing and the court orally provided her with her writ rights at that time, the JV-820 was due within seven days after June 18, 2019. (Cal. Rules of Court, rule 8.450(e)(4)(A).) Mother filed her JV-820, as well as a notice of appeal on June 19, 2019. Mother's notice of appeal, although dismissed by this court on July 27, 2019, challenged the juvenile court's June 12, 2019 order denying her section 388 petition. Hence, CFS was on notice that Mother was also appealing from the June 12, 2019 denial of her section 388 petition.
Although Mother did not amend her JV-820 to include the June 12, 2019 date, like a notice of appeal, we must liberally construe the JV-820 in favor of its sufficiency. (Cal. Rules of Court, rules 8.100(a)(2), 8.405(a)(3), 8.452(a)(1) [writ petition "must be liberally construed"].) A notice of appeal or notice of intent to file writ petition appeal shall be "'"liberally construed so as to protect the right of appeal if it is reasonably clear what [the] appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced."'" (In re J.F. (2019) 39 Cal.App.5th 70, 75-76, citing In re Joshua S. (2007) 41 Cal.4th 261, 272, Luz v. Lopes (1960) 55 Cal.2d 54, 59; and Norco Delivery Service, Inc. v. Owens-Corning Fiberglas, Inc. (1998) 64 Cal.App.4th 955, 960-961 ["'This policy is especially vital where the faulty notice of appeal engenders no prejudice and causes no confusion concerning the scope of the appeal.'"].)
In re Madison W. (2006) 141 Cal.App.4th 1447 (Madison W.) is instructive. The mother in Madison W. timely filed a notice of appeal "stating she was appealing from the January 13, 2006 order terminating parental rights," but "[t]he notice of appeal contained no reference to the January 10 order denying [her] section 388 petition." (Id. at pp. 1449-1450.) The appellate court indicated it "frequently receiv[ed] notices of appeal challenging the termination of parent's rights and nothing more despite the fact that on or before the same day as the termination order but within 60 days of when the notice of appeal was filed [citation], the [juvenile] court also denied the parent's eleventh-hour section 388 petition." (Id. at p. 1450.) The court routinely deemed those notices of appeal to include the earlier order. "First, the denial of such a section 388 petition is an appealable order. [Citation.] Second, the parent's notice of appeal is entitled to our liberal construction. [Citation.] Third, appellate jurisdiction to review an appealable order depends upon a timely notice of appeal. [Citation.] Fourth, the notice of appeal would be timely as to the denial of the parent's section 388 petition, provided the trial court denied the parent's section 388 petition within 60 days of when the parent filed the notice of appeal. [Citation.] And, finally, respondent is not prejudiced." (Ibid.)
The Court of Appeal noted it was not condoning "the practice of only citing the termination order in the notice of appeal if there was also an order denying the parent's section 388 petition made at or close to the termination hearing," and it was not condoning "any omission on appellate counsel's part to carefully review the notice of appeal and promptly bring the issue to [the] court's attention." (Madison W., supra, 141 Cal.App.4th at pp. 1450-1451.) Nevertheless, the court indicated it was being "pragmatic" and liberally construed the notice of appeal in that case to embrace the omitted order denying the mother's section 388 petition. (Id. at p. 1451.)
In Madison W., the juvenile court denied the mother's section 388 petition a mere three days before it terminated parental rights and the mother filed her notice of appeal. (Madison W., supra, 141 Cal.App.4th at pp. 1449-1450.) Likewise, here Mother's section 388 petition was filed about a week before the June 18, 2019 hearing and the filing of her JV-820. Moreover, Mother's JV-820 is entitled to our liberal construction, the JV-820 was timely filed, it is reasonably clear what Mother was trying to appeal from, and CFS is not prejudiced. Accordingly, we find no forfeiture and address Mother's claims on the merits.
2. Denial of Section 388 Petition
Under section 388, a juvenile court order may be changed or set aside "if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) "[I]f the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition." (Ibid.; § 388, subd. (d) ["If it appears that the best interests of the child . . . may be promoted by the proposed change of order, . . . the court shall order that a hearing be held . . . ."].) If, for instance, the parent makes a prima facie showing of changed circumstances, the juvenile court can still deny the petition without an evidentiary hearing if the parent fails to make a prima facie showing the relief sought would promote the child's best interest. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-190 (Justice P.); see In re Elizabeth M. (1997) 52 Cal.App.4th 318, 322-323.)
"'A "prima facie" showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited.'" (In re Josiah S. (2002) 102 Cal.App.4th 403, 418.) Consequently, section 388 petitions with general, conclusory allegations do not suffice. Otherwise, the decision to grant a hearing on a section 388 petition would be nothing more than a pointless formality. (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (In re Jackson W. (2010) 184 Cal.App.4th 247, 258.)
We review the juvenile court's order denying a hearing for abuse of discretion. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) "'"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."'" (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) The juvenile court's decision will not be disturbed unless the court "'"has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]."' [Citations.]" (Stephanie M., supra, 7 Cal.4th at p. 318.) "It is rare that the denial of a section 388 motion merits reversal as an abuse of discretion . . . ." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 522.)
Mother contends the juvenile court should have held a hearing on her section 388 petition because she established a prima facie showing of changed circumstances and that the proposed change would promote the best interest of the children. We need not decide whether the juvenile court erred in finding there was no prima facie showing of changed circumstances because Mother failed to make a prima facie showing that granting the section 388 petition and providing additional reunification services was in the best interest of the children. (Justice P., supra, 123 Cal.App.4th at pp. 188-190.)
Parent and child share a fundamental interest in reuniting up to the point at which reunification efforts cease. (In re R.H. (2009) 170 Cal.App.4th 678, 697, disapproved on another ground in John v. Superior Court (2016) 63 Cal.4th 91, 98-100.) By the point of a section 366.26 hearing to select and implement a child's permanent plan, however, the interests of the parent and the child have diverged. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254.) Therefore, after reunification efforts have terminated, the court's focus shifts from family reunification toward promoting the child's needs for permanency and stability. (Marilyn H., supra, 5 Cal.4th at p. 309.) This is a difficult burden to meet when reunification services have been terminated. This is because, "[a]fter the termination of reunification services, a parent's interest in the care, custody and companionship of the child is no longer paramount. [Citation.]" (In re Angel B. (2002) 97 Cal.App.4th 454, 464 (Angel B.).) In fact, there is a rebuttable presumption continued foster care is in the child's best interest. (Ibid.) Such presumption applies with even greater strength when adoption is the permanent plan. (Ibid.) "A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child." (Stephanie M., supra, 7 Cal.4th at p. 317.)
Mother ignores this shift in focus. In her petition, she alleged that her receiving additional services and liberalized visits would be in the best interest of the boys because she regularly visited them, the children were bonded to her and desired to continue their relationship with her, they looked forward to her visits, and they showed their love and affection to her at each visit. However, in light of the juvenile court's focus on permanence and stability and not reunification, her allegation in the petition that it is in the children's best interest to offer her additional reunification services is conclusory. It does not make a prima facie case because it does not include any facts which would support a finding that the boys would be better off with her than continuing in their current placement. In other words, she did not attempt to rebut the presumption that continued out-of-home placement was in the best interest of the boys. (See Marilyn H., supra, 5 Cal.4th at p. 310.) Neither in the juvenile court nor on appeal has Mother addressed the boys' need for permanency and stability and how those interests would be advanced by offering her additional services. "The presumption favoring natural parents by itself does not satisfy the best interests prong of section 388." (Justice P., supra, 123 Cal.App.4th at p. 192.)
At the time Mother filed her second section 388 petition, the boys' interest in stability was the juvenile court's foremost concern, outweighing any interest in reunification. The prospect of allowing Mother additional reunification services to see if Mother would and could do what she was required to do to regain custody would not have promoted stability for the boys, and thus would not have promoted the boys' best interest. (Angel B., supra, 97 Cal.App.4th at p. 464.) The social worker and the boys' therapist both concluded that it was in the boys' best interest for them to begin the process of moving through their stages of loss and grief and to transition into an adoptive home to allow them stability and permanence. The boys desired permanence and stability, wished to be adopted in a traditional home with a mother and father, and were placed in an adoptive home in July 2019. The boys adjusted to their prospective adoptive family and the prospective adoptive parents wanted to adopt them.
On the other hand, the boys were removed from Mother's care in July 2016, approximately three years ago. Yet, Mother had failed to show she could provide the boys with permanence and stability and has had only supervised visits with the boys. Although Mother's love for her sons is unquestionable, granting additional reunification services to Mother would only postpone the boys' adoption into a stable and loving home. The juvenile court reasonably concluded that, under such circumstances, Mother had not made a prima facie showing that reinstating reunification services would have promoted stability for the boys and be in their best interest. (Angel B., supra, 97 Cal.App.4th at p. 464.)
As the court in Angel B., supra, 97 Cal.App.4th 454 explained: "[T]here is a rebuttable presumption that, in the absence of continuing reunification services, stability in an existing placement is in the best interest of the child, particularly when such placement is leading to adoption by the long-term caretakers. [Citation.] To rebut that presumption, a parent must make some factual showing that the best interests of the child would be served by modification." (Id. at p. 465.)
Under the circumstances of this case, we conclude Mother had not made a prima facie showing that the children's best interest would be served by offering Mother additional reunification services and liberalized visitations. The juvenile court therefore did not abuse its discretion in denying Mother's section 388 petition without an evidentiary hearing.
IV
DISPOSITION
The writ petition is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: FIELDS
J. RAPHAEL
J.