Opinion
A151400
08-28-2017
C.C., Petitioner, v. THE SUPERIOR COURT OF CITY AND COUNTY OF SAN FRANCISCO, Respondent; SAN FRANCISCO HUMAN SERVICES AGENCY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City and County of San Francisco Super. Ct. No. JD15-3034)
Petitioner C.C. is the mother of minor C.C., who was born in 2009. She seeks extraordinary writ review of the juvenile court's orders reducing her visitation, limiting her educational rights, and setting the case for a selection and implementation hearing. (Welf. & Inst. Code, § 366.26.) Mother also requests a stay of the hearing, currently set for September 19, 2017. We issued an order to show cause on July 17, 2017. After careful consideration of the record and the parties' contentions, we deny the petition for extraordinary relief on the merits and deny the request for stay.
Given petitioner and the minor share the same initials, we will refer to petitioner as mother and to C.C. as the minor or C.C. in the rest of the opinion.
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
Father is not a party to these proceedings.
INTEGRATED STATEMENT OF CASE AND FACTS
Background
Mother is 53 years old, and C.C. is her sixth child. Mother has been involved in dependency proceedings with all her children since the late 1980's as a result of her substance abuse and mental health issues. Since 1995, "mother has entered a total of 7 drug treatment programs and 3 detox programs. . . . [M]other is able to demonstrate sobriety while in residential treatment programs, but is not able to maintain sobriety once she integrates into the community."
Proceedings Involving the Minor
On September 11, 2013, four-year-old C.C. was placed in a nonrelative foster home by the Marin County Children and Family Services Department (CFS) following a substantiated referral for general neglect, including mental health, substance abuse, and homelessness issues. On September 16, 2013, a section 300, subdivision (b) petition was filed.
This action was taken after 12 referrals were deemed unfounded, inconclusive, or were "evaluated out."
Jurisdiction and Disposition
A jurisdictional hearing was held on November 8, 2013, at which an amended petition was filed. All parties submitted on the findings and recommendations of the jurisdictional report, and the court assumed dependency jurisdiction. A court-appointed special advocate (CASA) was assigned to the child and a dispositional hearing was set for November 22, 2013. CFS recommended that reunification services be offered to mother. On November 25, mother stated her intention to enter a residential treatment program soon. At her request, disposition was continued for a contested hearing. On January 14, 2014, mother submitted on the CFS reports and the court ordered reunification services in accordance with an updated case plan agreed upon at a settlement conference. A six-month pre-permanency review hearing (§ 366.21, subd. (e)) was set for July 14, 2014. In February 2014, the minor was moved from his first foster care placement to a second foster home "due to challenging circumstances."
Six-month Review and Transfer to San Francisco
For the six-month review hearing held on July 14, 2014, CFS recommended that the court continue dependency jurisdiction and offer family maintenance services to mother, given her progress in drug treatment, clean tests, and success with unsupervised and overnight visits. The court agreed, and after nine months in foster care, the minor reunified with mother in July 2014 at a San Francisco residential treatment program for mothers and their children under a plan of family maintenance services. On January 12, 2015, the court transferred the case to San Francisco, where the minor was to continue residing with his mother in a residential facility. The San Francisco Superior Court accepted the transfer on February 13, 2015, and set a family maintenance review hearing for July 7, 2015.
Status Reviews in 2015
Status review reports written by the San Francisco Family and Children's Services Agency (Agency) in June 2015 and December 2015 recommended continuation of in-home family maintenance services for mother and C.C. Mother had completed a 14-month treatment program, "made tremendous gains in stabilizing her substance abuse and mental health issues" and had moved into permanent housing. However, the December 2015 report also contained some worrisome information: mother had stopped regularly attending Narcotics Anonymous (NA) meetings; she had tested positive for methamphetamine once in June 2015, returned dilute tests in July, October, and November 2015, and had missed 13 tests from July through November 2015. She had lost her temper with school personnel and was at odds with Seneca, C.C.'s wraparound service provider. Nevertheless, the Agency recommended that mother continue to receive family maintenance services, including the addition of "an intensive outpatient drug treatment program," because "mother continues to need support with stabilizing her substance abuse, mental health, and parenting skills before the agency can safely dismiss the case."
The court ordered the continuation of family maintenance services. As a condition of dismissal of the dependency, the court ordered mother to engage in aftercare substance abuse counseling, with testing if appropriate; remain under the care of a qualified mental health professional and comply with any recommendations for psychotherapy and/or prescription medication; sign all consents and cooperate with school and other support service providers for C.C.; and participate in and complete an intensive outpatient drug treatment program. A six-month review hearing was set for July 5, 2016.
The Agency Files a Section 387 Supplemental Petition
After nearly two years of seemingly successful reunification (with services), C.C. was removed from mother's care on June 9, 2016, because mother did not engage in the substance abuse treatment and mental health services ordered by the court in January, had disclosed she relapsed using methamphetamine and tested positive for methamphetamine six times in March through May of 2016, and had missed 18 tests, which were counted as positives. In addition, on a visit in January the social worker had observed a bottle of vodka in plain view in mother's kitchen.
The social worker described C.C.'s relationship with mother as "toxic." Mother had made statements to him "about his removal due to his behaviors or her substance abuse." She was too overwhelmed to take him to his therapy appointments three blocks from home, and she had failed to comply with C.C.'s individual education plan (IEP) recommendation for summer school because of "transportation issues," which the Agency could have ameliorated if mother had notified the Agency. Finally, in the social worker's view, mother "has created an unhealthy relationship with the child. The child is unable to separate from [her] due to a high level of concern about her well-being. The mother has stated she is not safe with herself but is safe with [C.C.] The Agency has addressed the mother about placing her responsibility on the child, but she continues to have poor boundaries and communication with the child. The child is exposed to conversations that cause fear and create behaviors that jeopardize his safety, emotional well-being, and education." Mother had threatened to kill herself to the social worker and others, and C.C.'s "self harming behaviors also increased during the period that the mother frequently made these statements." C.C., now seven years old, "continues to struggle with behavioral and emotional issues" which hinder him in school.
On June 14, 2016, the Agency filed a supplemental petition alleging that the previous order placing C.C. with mother was no longer effective to protect him, because mother was currently unable to safely and adequately care for the child "due to the mother's substance abuse and mental health concerns which require further treatment." The Agency recommended foster placement in the home of a nonrelative extended family member (NREFM). The Agency further recommended that no further reunification services be offered to mother and that a selection and implementation hearing (§ 366.26) be set because mother had "failed to demonstrate stability with her substance abuse and mental health issues, as well as provide the child with a stable and safe home," despite receiving services for approximately three years. The court ordered C.C. detained and temporarily placed with a NREFM on June 15.
According to an addendum report dated July 15, 2016, mother reported entering a residential drug treatment program on June 30 and starting in-house individual therapy on July 12. The social worker had not been able to verify that information.
During visits, C.C. vacillated between "episodes of appearing content with the removal, and moments of crying and stating that he misses his mother." The social worker acknowledged that "mother and child do have a close bond and attachment" and that "[t]he child will require supportive services adjusting to not returning to his mother." The social worker also acknowledged that "mother will need to stabilize as it will also be difficult for her not having the child returned." Mother struggled during visits not to discuss with C.C. the case or her plans to enter drug treatment, even though she had been warned against doing so and told it "created anxiety" for C.C., who "feared that the family will be homeless." Nevertheless, the social worker maintained that "[i]t is in the best of interest of the child that the removal from the mother is permanent. The child should be given a supportive and safe environment that can support the stabilization of his mental health and behavior development. The child should be allowed to embrace his childhood and allow a responsible adult to meet his needs physically, emotionally, and socially."
A Settlement Agreement Is Reached
In August 2016, the parties reached a settlement agreement regarding the contested jurisdiction/disposition hearing on the section 387 supplemental petition scheduled for September 6 and 7, 2016. The court signed and filed the stipulation as an order. Pursuant to the agreement, mother submitted to the allegations of the petition. Based on the facts stated in the June 14, 2016 report, at the hearing on August 15, 2016, the court renewed the dependency, terminated reunification services to both mother and father, vacated the prior placement of the minor with mother, approved a foster care placement, and continued supervised visitation twice a week, giving the Agency discretion to increase the frequency of visitation upon proper notice to minor's counsel. Mother was ordered to file her modification motion (JV-180) by January 5, 2017, and the court set various hearing dates.
"The parties agree that the [Agency] will be modifying its recommendation in part, to reflect that the child remain in foster care with the goal of legal guardianship, and that a permanency review hearing be set in six (6) months. The parties further agree that Mother's visitation will remain supervised, two (2) times per week through September 2016. There will be no phone calls or texts by Mother to the caregiver or child, unless authorized by the social worker. A progress hearing regarding visits will be scheduled at the end of September 2016, with a contested hearing scheduled in mid-October 2016, in the event that the parties cannot reach an agreement regarding visits. No parties object to the mother continuing in Family Treatment Court after termination of services. Mother will submit on the reports previously filed on the [section] 387 petition. A progress hearing regarding Mother's Section 388 petition will be scheduled in January 2017, with a contested hearing scheduled thereafter, in the event that the parties cannot reach an agreement regarding the [section] 388 petition."
According to a September 27, 2016 interim review report, the minor was placed in a confidential foster home in Modesto, his second placement since removal from the family home on June 9. After a rocky start, the minor settled into the new home's routines. He also entered a new school. Mother continued to have educational rights and "is responsive to attending school meetings and signing the necessary documents for services," including an interim IEP meeting in August. Again, after a rocky start, the minor was adjusting to new academic demands, behavioral expectations, and peers. Mother was visiting the minor for three hours twice a week, on Mondays and Fridays, for a total of six hours. The agency was paying for transportation.
On August 30, 2016, mother exited the residential treatment program she entered on June 30. She was reportedly fully participating in treatment activities through Family Treatment Court; however, her first post-program test on September 2 was positive for methamphetamines, although mother adamantly denied usage. Tests on September 8, 9, 12, 16, and 19 were normal. The drug treatment program personnel questioned whether it was appropriate for mother to be taking prescription Adderall, a pharmaceutical methamphetamine, but mother did not want to give it up.
Mother and C.C. were described as mutually affectionate towards each other during visits, and it was clear "the child values his time with the mother and looks forward to their contact." Mother acted appropriately during visits, being nurturing but firm about setting limits. C.C.'s long-time therapist was being asked to have conversations with him about his separation from mother; likewise, mother's providers were being asked to support her in not promising C.C. he could return home.
At first, mother was meeting the minor in Tracy, but on September 22, 2016, the Agency decided to move the visits to Modesto "to eliminate the child's early dismissal from school and long hours of transportation to and from Tracy to Modesto." Mother agreed to the change.
The Agency was recommending that visits be reduced to three hours per week. The visits had deteriorated since the move from Tracy to Modesto. According to the new supervising social worker, "mother is struggling with staying focused on the child's needs during the visits." She would leave the visiting room to discuss her treatment activities with the social workers and show them documentation about her treatment, while C.C. trailed behind her asking where she was going. She had to be reminded not to discuss her treatment, or court, in front of C.C. She resisted the social worker's instruction not to tell C.C. he would be returning home by Christmas, saying, " 'Oh no, no one is going to tell me that I can't tell my child he is coming home.' " She admitted to the San Francisco social worker that in the moment when the child asks her if he is coming home, she tells him he is, although she agreed to not promise the child he was coming home. "The Agency is concerned about the mother's inability to support the child's stabilization in placement and school as well as making promises to the child of returning home when she is not receiving reunification services to support it."
The report stated C.C. "has experienced a great deal of trauma in the care of the mother." The report detailed conversations between the social worker and C.C. concerning his exposure to alcohol and drugs while in his mother's care. The child indicated mother had let him sip wine, which he thought was grape juice and which he spat out; she left alcohol in a cup on a table while she slept, which he poured out because he did not want her to drink it; and she had taken him with her to buy alcohol in the store on a regular basis. C.C. also described "dope" as something " 'you buy behind Safeway in the dark alley way.' " Mother admitted smoking methamphetamine in the bathroom when she thought the minor was asleep, while the minor disclosed after his removal that he had observed mother not sleeping throughout the night. Mother deflected the social worker's attempts to address the impact of her substance abuse on the child, saying the past was the past and she was looking towards the future. The social worker considered "of concern" mother's inability to take responsibility for her actions, or address the child's exposure to her usage and its risk to his safety.
In conclusion, the social worker reiterated that on August 15, 2016, the parties agreed to terminate mother's services and identify a permanent plan that includes a caregiver who "is not the mother." To that end, the Agency was collaborating with the Agency's placement unit and Seneca Permanency Services to "complete family finding." In the meantime, the Agency was recommending a reduction of visitation "as the child needs time addressing his trauma while in the care of the mother, adapting to his environment and adjusting to the separation from the mother."
No order was made to reduce mother's visitation.
Mother Files a Modification Request
On January 5, 2017, mother filed a JV-180 form (§ 388) requesting the return of C.C. to her custody with family maintenance or, in the alternative, reinstitution of reunification services. A contested hearing was held over several dates in February, March, and April, 2017. In the meantime, the six-month post-permanency planning review hearing was continued pending resolution of the modification request. On April 4, 2017, mother's modification request was denied.
Mother filed a timely notice of appeal.
Six-month Post-permanency Planning Review
On May 3, 2017, the court denied mother's motion to have a contested section 366.3 hearing on the return of the minor and/or a second period of family reunification services.
Mother filed a timely notice of appeal from that order as well. The two appeals were ordered consolidated. (San Francisco Human Services Agency v. C.C. (A151020, app. pending; San Francisco Human Services Agency v. C.C. (A151263, app. pending.) On July 19, 2017, mother's appointed counsel filed a no-issues brief as to both appeals. (In re Sade C. (1996) 13 Cal.4th 952, 994; In re Phoenix H. (2009) 47 Cal.4th 835.) --------
January 2017 Report
The Agency filed a status review report on January 25, 2017. The social worker reported that as of November 8, 2016, C.C. had been moved to a new school that offered special day classes and was struggling with the transition. As of October 31, C.C. had been excited about his old school and reported he was learning to read and had made two best friends. He needed support adjusting to the new school. According to his therapist, he was also struggling to accept his removal from his mother. The Agency was "addressing the therapist on how to best support the child therapeutically with understanding the reasons for removal." C.C. had a supportive relationship with a former caretaker, who invited him to visit for the weekend. He appeared comfortable with the other children in his foster home. Twice weekly visits continued and were generally positive. Mother "struggles tremendously with controlling her emotions about the current CPS case," but only once had she required a reminder not to speak to the visitation monitor about her case.
No progress had been made in finding a permanent placement for C.C. Neither maternal nor paternal relatives were willing to take on a long-term commitment. The former caregiver with whom C.C. had visits was not interested in caring for him on a permanent basis. The current caretaker had expressed some interest in a permanent placement, but there was tension between her and C.C., which the social worker attributed to sabotage by mother. The current permanent plan was identified as a long-term foster care placement with the goal of adoption or legal guardianship.
March 2017 Report
An addendum report was filed March 15, 2017. The social worker reported that mother's attendance at her substance abuse outpatient program had been spotty in March. She had tested positive for methamphetamine on February 24 (she denied usage), missed six drug tests between January 20 and March 13, and tested negative for drugs eight times between January 10 and March 9, 2017. C.C. remained at the same school but had been moved into a new foster home on February 17, 2017. He had transitioned well and appeared to like his new caregivers, reportedly asking his foster mother to adopt him if he did not return home to his mother. For her part, foster mother indicated she was interested in adopting the minor. During visits mother was more patient with the minor and more receptive to redirection from the social workers. In fact, she only talked about her court dates in front of the minor once, and immediately stopped talking about it when warned.
April 2017 Report
A second addendum report was filed April 7, 2017. In this report, the social worker acknowledged that the prior foster care placement had failed because of the foster family's "strict structure at odds with the child's behaviors," as well as mother's meddling, although she placed exclusive blame on "mother's poor boundaries and impulsive behaviors," which were "emotional[ly] exhausting for the caregiver," for the failure of the first placement. In any event, C.C. stated he liked his new placement and community and the foster parents continued to say they "would like to adopt" him.
Mother, on the other hand, was not doing well since the denial of her modification request. According to the social worker, mother had become "dysregulated" since the trial, threatening not to visit the minor if she lost, and threatening to harm the social worker for removing the child and opposing reunification. After the court ruled against her, mother called social worker's supervisor and "threatened to tell the child that she was wronged by the Department and Judge, and to act out because he was not returning home." However, with guidance from the visitation social worker and C.C.'s long-time therapist, mother had returned to acting reasonably. She reported being positive about the new foster mother and home.
However, for the last eight weeks she had tested positive for buprenorphine and methamphetamine, had missed numerous drug tests, had stopped attending drug treatment, and had not provided proof of individual therapy attendance. Mother had also missed three of the last six visits and required redirection from talking about the case with C.C. during the visits she did attend.
The social worker pressed for a reduction in visitation in order to support the prospective adoptive placement with the current caregiver. The Agency's attachment-bonding consultant agreed that mother's contact with the child should be reduced "due to the mother's behaviors and the impact it has on the child. . . . [The consultant] stated that the child's frequent contact with the parent who is unstable left the child in a state of heightened anxiety as he regularly needed to prepare himself for the visit. She also stated that the child's 6 hours per week interfered with his time to be with the foster family and establish a healthy relationship. The Agency believes a reduction in the child's visits with the mother [will] help him emotionally stabilize his separation from the mother and connect more to the foster family, who is the permanent plan for the child's adoption." C.C.'s long-time therapist "voiced concerns about the reduction of visits as the child looks forward to seeing his mother." However, the minor had not decompensated in placement or escalated negative behaviors at school in response to mother's missed visits.
May 2017 Report
A third addendum report was filed May 15, 2017. Mother had totally disengaged from treatment.
The current foster family had requested C.C.'s removal from their home, not so much because of his behavior but because the family could not cope with the ongoing court processes and contact with mother. "The foster parents . . . expressed being exhausted by the multitude of services, which included both providers and visitation. Foster parents have also expressed a concern about the involvement of the mother and the on-going visitation contact with [C.C.] as being the primary reasons for the child not being able to connect and settle into a permanent home. The Agency also conducted a family search and many members expressed not wanting placement due to mother."
The social worker reported that a group of 11 social workers, foster care mental health clinicians and others, including herself, C.C.'s long-time therapist, and the attachment-bonding consultant, had met to review visitation. The consensus was that C.C. "has a connection with the mother. We also recognized that the relationship is not healthy and has been sabotaging to his stability in placement." Mother sent the minor conflicting messages about wanting him to be happy in his placement and then had a melt-down and told him she would continue to fight for him in court. His repetition of that statement to his caretaker caused her to "have uncertainty about his long-term stay with the family."
The social worker, with the backing of the other members of the administrative review group, concluded that visits needed to be reduced and that mother's educational rights needed to be limited and transferred to a CASA who was well-versed in special education services. "The reason for limiting educational rights is the child's next placement and school will be strictly confidential to support the continuity of the placement. The mother's access to the child's location of school, placement and foster parents has led to many disruptions to the child's permanent [placement]. Before the plan of confidentiality of the placement was developed, the mother had made statements that she will find [C.C.] wherever he is placed, so the Agency will be diligent in protecting the confidentiality of the foster parents, placement, and school. "
Contested Post-permanency Planning Review Hearing
At the contested six-month review hearing held on May 24, 2017, the court received into evidence the four reports summarized above and heard testimony from the social worker who authored them, and from mother. The social worker confirmed that mother has received generally positive reviews about visits from the social workers who supervised them. She confirmed that mother initiated the request that C.C. be assessed for special education services and had attended all of his IEPs. A CASA had not been appointed yet. A referral had been requested, but the referral had not yet been submitted. However, the supervisor of the CASA program had assured her that C.C. would be assigned a CASA immediately once the referral was received. C.C. had just started at a new school. So far it was going well. An IEP was to be set for June, so that C.C. could extend the school year into summer. C.C. was reportedly excited about that.
C.C. was currently placed for the summer with a previous NREFM caretaker while a permanent home for him was identified. Two potential placements had been identified, meaning that two families had been told about C.C. and had expressed interest, but the Agency was in the beginning stages of the process. These potential placements were not with the NREFM or with relatives, who were not interested in permanent placement.
The Agency was recommending that visits be reduced to once a week for the next two weeks, then once every two weeks, and then once a month by July. Mother was in agreement with that schedule if visits were to be reduced.
The social worker recommended setting a section 366.26 hearing at this time. C.C.'s long-time therapist has reported that C.C. wants to go back to live with his mother. C.C. also provided a letter to that effect to the judge in February. He told his therapist he would harm himself if he could not go back to live with his mother. However, he had never said that to the social worker, except on the day he was removed from mother. Contrary to information contained in the report supporting the section 387 petition, the social worker now testified C.C. had never actually engaged in any self-harming behaviors.
Since his removal in June 2016, C.C. had been in four different foster homes. Despite this, C.C. was doing much better academically and was considered one of the best writers in his class. He still struggled with math, and was functioning at a kindergarten level in the second grade. However, his behaviors were less intense and he was more focused. At his IEP meeting on May 15, the school recommended continuing support for his learning disability, but saw no need for additional services. Seneca had stopped providing wraparound services on January 31, 2017, based on C.C.'s progress in his previous placement.
Mother testified she was not in agreement with the gradual reduction of her visits to once a month. Her son had been with her his entire life. The majority of her visits with C.C. have been very appropriate. She was not in agreement with taking away her education rights. She had started it all and was his strongest advocate. Going forward, she would continue to attend IEPs and communicate with the schools about C.C.'s needs. If C.C. could not be returned to her, mother hoped C.C. could stay with the NREFM. She denied that phone calls to the NREFM were incessant or had anything to do with the disruption of C.C.'s original placement with her.
Mother testified she had always been a good parent and there was no substantiality to any of the reasons she was losing her child. Mother did not deny she was an addict. She testified: "I get the purpose that I can't use meth. I don't get the fact that anyone can show me to be unfit because I use meth."
At the conclusion of the hearing the court found, under section 366.3, subdivision (h), that there had not been clear and convincing evidence presented that would prevent the court from setting a hearing under section 366.26, and that it was in C.C.'s best interest to begin reducing visits and limiting mother's educational rights. The court made minor's counsel the temporary educational advocate pending appointment of a CASA.
DISCUSSION
The Propriety of Order Setting a Section 366 .26 Hearing
Mother contends the court's order setting a section 366.26 hearing is not supported by substantial evidence. We disagree.
Section 366.3 governs post-permanency review hearings held on behalf of a child in long-term foster care. For a child whose placement is not in the home of a legal guardian, and for whom jurisdiction has not been dismissed, a status hearing must be held at least every six months. (§ 366.3, subd. (d).) "At the review held pursuant to subdivision (d) for a child in foster care, the court shall consider all permanency planning options for the child including whether the child should be returned to the home of the parent, placed for adoption, . . . appointed a legal guardian, [or] placed with a fit and willing relative . . . . The court shall order that a hearing be held pursuant to Section 366 .26, unless it determines by clear and convincing evidence that there is a compelling reason for determining that a hearing held pursuant to Section 366 .26 is not in the best interest of the child because the child is being returned to the home of the parent, the child is not a proper subject for adoption, or no one is willing to accept legal guardianship as of the hearing date. If the county adoption agency, or the department when it is acting as an adoption agency, has determined it is unlikely that the child will be adopted or one of the conditions described in paragraph (1) of subdivision (c) of Section 366.26 applies, that fact shall constitute a compelling reason for purposes of this subdivision. Only upon that determination may the court order that the child remain in foster care, without holding a hearing pursuant to Section 366 .26. The court shall make factual findings identifying any barriers to achieving the permanent plan as of the hearing date." (§ 366.3, subd. (h)(1), italics added.) At the time of the section 366.3 status review hearing in this case, the minor was in foster care, the court having sustained the Agency's section 387 petition. So far as this record shows, the permanent plan for the minor was the plan to which the parties stipulated, with the court's approval, on August 15, 2016: "foster care with the goal of legal guardianship."
The statute contemplates that upon the completion of status review the juvenile court will set a hearing under section 366.26 unless there is clear and convincing evidence that a compelling reason for determining that a hearing held pursuant to section 366.26 is not in the best interest of the child. Compelling reasons are specified in the statute: (1) the child is being returned to the home of the parent, (2) the child is not a proper subject for adoption, (3) no one is willing to accept legal guardianship as of the hearing date, or (4) the adoption agency has determined it is unlikely that the child will be adopted or one of the conditions described in paragraph (1) of subdivision (c) of section 366.26 applies. (§ 366.26, subds. (c)(1)(B)(i), (c)(1)(B)(v).) This standard places the burden on the parent to prove that the matter should not be set for a section 366.26 hearing. (Sheri T. v. Superior Court (2008) 166 Cal.App.4th 334, 341; M.T. v. Superior Court (2009) 178 Cal.App.4th 1170, 1179.) "Thus, the statutory scheme provides that a child in long-term foster care shall not slip into oblivion; her status shall be reviewed every six months to make sure efforts are continuously being made to find her a more permanent placement. . . . The legislative preference is 'for adoption over legal guardianship over long-term foster care.' [Citation.] When the court conducts the review hearing, it 'proceeds under a presumption that long-term foster care is inappropriate. It is obligated to act accordingly.' [Citation.] Therefore, when circumstances have changed, the court should hold a permanent plan selection hearing unless the mother proves there is a compelling reason not to do so." (Sheri T., at pp. 340-341.)
With respect to the compelling reasons listed in the statute, it is clear that returning the minor to mother's care with or without services was not possible at this juncture. "Generally speaking . . . post-permanency reunification services are not entirely foreclosed to parents whose children have been placed outside the home as part of a permanent plan, but whose parental rights have not been terminated. Rather, if a parent can show 'further efforts at reunification are the best alternative for the child,' then the court is authorized to grant six more months of reunification services and up to six months of family maintenance services. (§ 366.3, subd. (f).) That standard governs the availability of reunification services on periodic review in the post-permanency phase when the child has been placed outside the parent's home. (§ 366.3, subds. (d), (f).)" (D.T. v. Superior Court (2015) 241 Cal.App.4th 1017, 1036-1037, fns. omitted.) In this case, however, the court ruled that the issues of return or provision of reunification services were foreclosed by principles of collateral estoppel and res judicata, given the review hearing came hard on the heels of a contested hearing on mother's unsuccessful modification motion. That ruling is not at issue here.
Similarly, of the other statutorily identified compelling reasons that would prevent the setting of a section 366.26 hearing, the one involving Agency determinations does not apply because the Agency here did not determine that adoption was unlikely, or that termination of parental rights would be detrimental to the minor. This leaves the reasons related to the child's adoptability or the availability of a legal guardian.
Mother argues the minor was not a proper subject of adoption because he had been moved from placements four times since his removal from mother's home, needed wraparound support from Seneca and special education services at school, had a learning disability and behavioral issues, was performing at a kindergarten level in second grade, and was seeing a therapist. In addition, the Agency had been trying unsuccessfully for one year to find either an adoptive home or a legal guardian for him. This is all true.
It is also true that over the many years C.C. has been a dependent child, he has been consistently described by persons in regular contact with him, from his first CASA to several different social workers, as "charming," "adorable," "funny," and "developmentally on target." Most recently, he had shown great improvement in school both academically and behaviorally, no longer needing wraparound services from Seneca, or extra support at school other than special education support for his learning disability. He had in fact shown himself surprisingly open and resilient to transitions, reportedly liking many of his new schools and placements and making new friends. The annals of dependency case law are filled with examples of children with special needs, behavioral issues, and learning disabilities who have been found adoptable. (See, e.g., In re Helen W. (2007) 150 Cal.App.4th 71, 74-75; In re A.A. (2008) 167 Cal.App.4th 1292, 1302; In re Gregory A. (2005) 126 Cal.App.4th 1554, 1563; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) To the extent that C.C. has been hard to place, the record tends to support the view that mother's interference with the placements and the minor's attachment to mother have been the culprit, rather than C.C.'s inherent traits. In our view, these are not compelling reasons to forego setting a selection and implementation hearing pursuant to section 366.26. How attachment or other issues will ultimately play out at that hearing is a question for another day.
It is true that no legal guardian had come forward by the time the status review hearing was held. The record suggests there is some hope the current caretaker might ultimately take on that role, but she had not indicated an intention to do so by the time of the hearing. However, in our view, a finding that no guardian is available at the time of the status hearing does not provide a compelling reason to maintain the status quo if the minor is adoptable. To find otherwise would undermine the overriding legislative purpose of finding "stable, permanent homes" for dependent children who cannot reunify with a parent. (§366.26, subd. (b).) Under that statutory scheme, adoption is the preferred permanent plan, followed by legal guardianship, and then long-term foster care. Substantial evidence supports the finding that the minor is a proper subject for adoption, and therefore no compelling reason militates against the setting of a section 366.26 hearing, notwithstanding the unavailability of a legal guardian at the time of the hearing.
The Propriety of Reducing Visitation
Mother contends the juvenile court abused its discretion in reducing visitation. We disagree. The court has broad discretion in fashioning visitation orders. " 'The reviewing court must consider all the evidence, draw all reasonable inferences, and resolve all evidentiary conflicts, in a light most favorable to the trial court's ruling. [Citation.] The precise test is whether any rational trier of fact could conclude that the trial court order advanced the best interests of the child. [Citation.] We are required to uphold the ruling if it is correct on any basis, regardless of whether it is the ground relied upon by the trial judge.' " (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) We will not disturb the trial court's decision unless the court has made an arbitrary, capricious or patently absurd determination. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
We do not view as arbitrary, capricious or absurd the juvenile court's decision to "titrate" the visits from twice a week for six hours, to once a week for three hours, to twice a month, to ultimately once a month, between the status hearing in May and the selection and implementation hearing in September. It is true the record shows mother was loving and usually attentive to C.C.'s needs during visits, and that mother and son have a strong bond; it also shows that mother consistently fueled C.C.'s belief that he would soon return home, a belief that was unrealistic given mother's inability to cease using methamphetamine, and one that fostered anxiety in the minor and that undermined placement after placement. The trial court's order is a thoughtful attempt to balance mother's and minor's interests in maintaining contact and connection against the minor's interest in a drama-free, stable placement. No abuse of discretion is shown.
The Propriety of Limiting Mother's Educational Rights
Mother contends the trial court's order limiting her right to direct C.C.'s education and placing the right to make educational decisions for him in the hands of minor's counsel, pending appointment of a CASA, was not "necessary to protect [the] child" and is therefore error. (§ 361, subd. (a); Cal. Rules of Court, rule 5.649(a). We disagree.
In this case, the Agency made a determination, after an administrative review involving numerous experts and stakeholders, that in order to support the stability of the minor's next placement it had to be kept confidential, meaning that mother could not have access to the caretaker, the placement, or the new school. This step was taken because mother's contacts with prior caretakers, and her continuing efforts during visits to keep the minor informed about her troubles, treatment, and court case, had a negative and destabilizing effect on the minor's placements.
"We review the juvenile court's order limiting parents' educational rights under an abuse of discretion standard [citation], bearing in mind '[t]he focus of dependency proceedings is on the child, not the parent.' " (In re R. W. (2009) 172 Cal.App.4th 1268, 1277.) We find no abuse of discretion here. Mother is to be commended for initiating the special education assessment and traveling long distances to advocate for her child at periodic IEP meetings. But the court's ruling is not about her. It is about the minor's need to settle into a stable placement. The court did not err in concluding that limiting mother's education rights, along with visitation, was necessary to protect the child and his interest in stability.
DISPOSITION
The petition for extraordinary writ relief is denied on the merits. (See Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888, 894; Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1024.) The request for stay of the section 366.26 hearing is denied. The decision is final in this court immediately. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)
/s/_________
Dondero, J. We concur: /s/_________
Humes, P. J. /s/_________
Margulies, J.