Opinion
C088836
10-18-2019
In re E.C. et al., Persons Coming Under the Juvenile Court Law. SUTTER COUNTY HEALTH AND HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. C.M., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DPSQ150063, DPSQ150064, DPSQ150070, DPSQ150071, DPSQ150072)
In a previous related appeal from orders terminating parental rights, this court found insufficient evidence to support the juvenile court's finding that it was likely the minors in this case would be adopted within a reasonable time, reversed the orders terminating parental rights, and remanded "for further proceedings consistent with [the] opinion." (In re A.Q. et al. (August 13, 2018, C085904) [nonpub. opn.].) In this appeal, appellant C.M., mother of the minors, appeals from the juvenile court's orders summarily denying her Welfare and Institutions Code section 388 petition for modification and terminating her parental rights. (Statutory section references that follow are to the Welfare and Institutions Code.) She contends the juvenile court erred in summarily denying her petition for modification and/or determining that it should hold the section 366.26 hearing reconsidering the adoptability issue prior to reaching the merits of her petition.
Unfortunately, our disposition in the previous appeal was not sufficiently clear and, as a result, the juvenile court was uncertain whether it should first proceed with mother's newly-filed petition for modification or the section 366.26 hearing on remand. However, because the juvenile court made the alternate finding that mother's petition for modification had failed to make the requisite prima facie showing that the requested modification was in the minors' best interests, and that finding is supported by the record, no prejudicial error could have occurred by the court's decision that the section 366.26 hearing should occur first. Accordingly, we affirm the orders denying the section 388 petition for modification and terminating parental rights.
FACTS AND PROCEEDINGS
Our recitation of the background facts, some of which derives from our opinion in the previous appeal (In re A.Q. et al., supra, (August 13, 2018, C085904) [nonpub. opn.]) is limited to those necessary to the resolution of the instant appeal.
These proceedings began in October 2015, when the two youngest minors were four months old, and has now lasted four years. The oldest minor is now 12 years old and the minors have been detained since March 2016. Jurisdiction was based on mother's ongoing drug use and father's failure to protect the minors. Mother made minimal progress in her case plan and, on January 3, 2017, reunification services were terminated and mother's visitation was reduced. By August 2017, mother was repeatedly cancelling visits and had intimidated the minors' foster parents to the point that the foster parents were afraid to proceed with adoption.
Mother had filed a petition for modification in May 2017, alleging she was participating in a drug treatment program and attending 12-step meetings, but her petition was denied and mother resumed her drug use. The section 366.26 hearing took place on October 26, 2017. Mother did not appear at the hearing. The juvenile court found the minors adoptable and terminated parental rights. Visitation between mother and minors was terminated. Mother appealed, alleging the juvenile court's finding that it was likely the minors would be adopted was unsupported by substantial evidence, and that the court should have granted her counsel's request for a continuance of the section 366.26 hearing.
In an opinion filed August 13, 2018, this court reversed, concluding "there is no substantial evidence to support the juvenile court's finding that it is likely the children will be adopted, because there is no evidence the minors are likely to be adopted within a reasonable time as a sibling group, and no record that likely separate adoptive placements were presented to, and considered by, the juvenile court." (In re A.Q. et al., supra, (August 13, 2018, C085904) [nonpub. opn.], at p. 2.) We reversed the order terminating parental rights and remanded the matter "for further proceedings consistent with this opinion." (Id. at p. 12.) Remittitur was issued on October 18, 2018.
On November 14, 2018, mother filed a new section 388 petition for modification, seeking family maintenance services or, alternatively, resumption of visitation. In her petition, mother alleged that she had, once again, completed a rehabilitation and outpatient program and was attending a 12-step program. Mother claimed to have been "substance free" since December 1, 2017. The petition alleged the proposed modification was in the minors' best interests because they were "closely bonded with mother" and she "believes" the minors want to live with her. The petition further alleged that "[n]ow that [m]other has made positive changes in her life and the circumstances that brought the children before the court no longer exists, it is in the children's bests interests to have a relationship with [m]other. They have only been in their current placement for less than 1 year." No other allegations regarding the minors' best interests were set forth in the petition.
At the hearings following the issuance of the remittitur, the parties and court expressed confusion as to precisely what issues were to be addressed on remand, and in what order. The juvenile court set the petition for modification and section 366.26 hearing on January 31, 2019, to allow for briefing from the parties. The Sutter County Health and Human Services Department and minors' counsel took the position that the court was limited on remand to determining whether there is an evidentiary basis for the adoptability finding and that mother's section 388 petition should be addressed only if the court found the minors not adoptable. Mother took the position that her section 388 petition should be heard before proceeding with the section 366.26 hearing on remand.
The juvenile court concluded it should not have set the section 388 petition for hearing because (1) the remand was limited to redetermination of whether there is an evidentiary basis to find the minors adoptable, and (2) mother had not made a sufficient showing that the proposed modification was in the minors' best interests. In fact, the juvenile court concluded that the proposed modification was "absolutely contrary to the best interests of the children." The juvenile court found the minors adoptable and terminated parental rights. Mother appealed.
DISCUSSION
Mother contends the juvenile court erred in not holding a hearing on her section 388 petition for modification. She argues the court should have heard her petition prior to addressing the adoptability finding on remand and erred in summarily denying her petition for failure to make a prima facie showing of best interests. We conclude the juvenile court did not abuse its discretion in summarily denying the petition for failure to allege facts showing the proposed modification was in the minors' best interests.
"The parent [seeking modification must] make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.]" (In re Marilyn H. (1993) 5 Cal.4th 295, 310; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1412-1414.) "There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. [Citation.] If the liberally construed allegations of the petition do not show changed circumstances such that the child's best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. [Citation.] We review the juvenile court's summary denial of a section 388 petition for abuse of discretion. [Citation.]" (In re Anthony W. (2001) 87 Cal.App.4th 246, 250; In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.)
Here, mother alleged she was, once again, in a period of sobriety. Her most recent sobriety was, however, untested. A year earlier, she had claimed to maintain a previous period of sobriety only to relapse into drug use. But even if mother had demonstrated changed circumstances, she did not make a prima facie showing that granting her further services or visitation would be in the minors' best interests.
Once reunification services are terminated, the juvenile court's focus shifts from reunification to the minors' need for permanency and stability. (In re D.R. (2011) 193 Cal.App.4th 1494, 1512-1513.) "[T]he disruption of an existing psychological bond between dependent children and their caretakers is an extremely important factor bearing on any section 388 motion." (Ibid., italics omitted.) In this case, the minors had been out of mother's custody for almost three years and had not visited mother in over a year. They had been emotionally prepared for adoption and those old enough to consent were willing to be adopted. The three youngest minors had been in the current placement for almost a year and had bonded well with the prospective adoptive parents. The two oldest minors had been placed with the prospective adoptive parents for seven months and, although they had some initial challenges, had adjusted well to the placement. All five minors were placed together in the home with prospective adoptive parents who intended to adopt them all. As the juvenile court observed, disrupting this stable placement to reopen uncertain possibilities of maintaining contact with mother is not in the minors' best interests. (See In re Jackson W. (2010) 184 Cal.App.4th 247, 260 ["The petition made no showing of how the minors' best interests would be served by depriving them of a permanent, stable home in exchange for an uncertain future"].)
Mother's allegation that the minors are "closely bonded" with her and her belief that they want to live with her is insufficient on this record to overcome the minors' interest in permanence and stability. First, mother admits that this bond is a "dysfunctional" one. Moreover, the two youngest minors have been out of mother's custody nearly their entire lives; the middle minor, when asked about placement and prospective adoption mentioned that he missed his former foster home but did not mention mother at all; and the two oldest minors had expressed normal "apprehension" at the prospect of adoption but had stated that they were fine with that outcome. In any event, preserving the minors' bond with mother by reinstituting visitation or disrupting their stability based upon the speculation that mother may, this time, remain drug free at this late date, is inconsistent with providing permanency and stability and is, therefore, inconsistent with promoting the minors' best interests.
Mother argues the trial court erred "when it refused to consider Mother's post-remand section 388 petition." While it is true that the trial court at one point said it was "disinclined to hear" the section 388 petition on the day set for the .26 hearing, it is apparent from the record that the court did consider whether it would be in the best interests of the minors to grant the petition and found that it would not be in their best interests stating: " . . . .having the [petition for modification] actually heard is absolutely contrary to the best interests of the children. They are in a stable placement. They have been in a stable placement. Best interests of the children is one of the requirements for consideration under the 388 petition and to have -- they have been -- when I think back on this case of them, services being terminated, them being told by their mother that they were going to be returned to her. Them being in adoptive placements. The Department fully believed that the children would be adopted but for the intimidation that allegedly was perpetrated by the parents on the adoptive families, who the adoptive families ultimately returned the children and would no longer have them in their care. To now open this issue for the kids of possibly something different happening I just can't imagine. They're in their adoptive placement. They have -- we have a favorable report from the Department and I think to disrupt these kids yet again would be absolutely detrimental to them, and so I am disinclined to hear the [petition for modification]."
In sum, mother's factual allegations and evidence failed to establish a prima facie case that the proposed modification would be in the minors' best interests. The juvenile court acted within its discretion in summarily denying the petition.
DISPOSITION
The orders terminating parenting rights and denying the section 388 petition for modification are affirmed.
/s/_________
HULL, Acting P. J. We concur: /s/_________
ROBIE, J. /s/_________
DUARTE, J.