Opinion
E073635
12-04-2019
C.H., Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Real Party in Interest.
Law Offices of Valerie Ross and Valerie Ross for Petitioner. No appearance for Respondent. Michelle D. Blakemore, County Counsel, Michael A. Marken, Assistant 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.No. J259977) OPINION ORIGINAL PROCEEDINGS; petition for extraordinary writ. Steven A. Mapes, Judge. Petition denied. Law Offices of Valerie Ross and Valerie Ross for Petitioner. No appearance for Respondent. Michelle D. Blakemore, County Counsel, Michael A. Marken, Assistant County Counsel, for Real Party in Interest.
Petitioner C.H. (mother) filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452, challenging the juvenile court's order denying her Welfare and Institutions Code section 388 petition as to her child (the child), and setting a section 366.26 hearing. Mother has requested a stay of the section 366.26 hearing, which is scheduled for December 11, 2019. We deny the writ petition, as well as the request for stay of the section 366.26 hearing.
All further statutory references will be to the Welfare and Institutions Code section, unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
On April 23, 2015, the San Bernardino County Children and Family Services (CFS) filed a section 300 petition on behalf of the child, who was two years old at the time. The petition alleged that he came within the provisions of section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). The petition specifically alleged that mother had a substance abuse problem that impacted her ability to parent, failed to provide basic necessities for the child, demonstrated mental instability, and was arrested, leaving him without supervision or provisions for support.
The petition also contains allegations regarding the child's father. Since he is not a party to this writ, this opinion will not discuss those allegations.
The social worker filed a detention report, which stated that on April 20, 2015, a police officer arrived at the maternal great-grandmother's (the MGG) home and found mother pounding on the windows and doors, screaming that the child was the devil and that her two other children needed to be saved by the devil. The child was brought to the police station. When the social worker picked him up, he was wearing soiled pajama bottoms, a stained shirt, and a jacket. He did not have any shoes on, his socks were wet from urine, and he had layers of dried dirt all over his body. The MGG was later interviewed and said she was previously awarded legal guardianship of mother's two other children, after mother failed to complete services ordered by the family court.
The court detained the child on April 24, 2015.
Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report on May 11, 2015, recommending that mother be provided with reunification services. The social worker reported that mother had a history of unstable housing. She was currently staying with a friend, was unemployed, and had no source of income.
The court held a contested jurisdiction/disposition hearing on June 4, 2015. It declared the child a dependent, found that he came within section 300, subdivisions (b) and (g), removed him from mother's custody, and ordered mother to participate in reunification services. Her case plan required her to participate in general counseling, a parenting education program, and substance abuse testing. The court added the requirement that she complete an outpatient drug treatment program and undergo a psychological evaluation, if recommended by a therapist.
Six-month Status Review
The social worker filed a six-month status review report on November 25, 2015, recommending that the court continue mother's services. The social worker reported that mother had participated in general counseling, a parenting program, and outpatient services. However, she was inconsistent in drug testing, with several no shows and a positive drug test.
The court held a six-month review hearing on December 4, 2015, and continued mother's services.
Twelve-month Status Review
The social worker filed a 12-month status review report on May 18, 2016, recommending that mother's services be terminated and a section 366.26 hearing be set. The social worker reported that mother continued to abuse drugs. She was participating in an outpatient program, with a completion date of January 29, 2016. A week prior to graduating, she tested positive for amphetamines. She admitted to using and was referred to another outpatient program, which she began in March 2016.
The social worker further reported that the child was placed in the home of a maternal great aunt, Lynn H., on July 27, 2015. He was bonded with her and was thriving in her home. Lynn H. loved him and wanted to adopt him.
We note that another report states the child was place with Lynn H. on June 21, 2015.
The court held a contested 12-month status review hearing on June 6, 2016. It found that mother failed to participate regularly and make substantive progress in her case plan and thus terminated her reunification services and set a section 366.26 hearing.
Section 366.26
The social worker filed a section 366.26 report on September 21, 2016, and requested a 90-day continuance to allow time for the current caregiver to be assessed for placement as the child's legal guardian. The child had a strong attachment to her. She was assessed for adoption on August 1, 2016, but adoption was found to be inappropriate at that time, since she was currently looking for employment. The social worker instead recommended legal guardianship.
The court held a section 366.26 hearing on January 24, 2017, and appointed Lynn H. as the child's legal guardian and terminated the dependency. It ordered supervised visitation between mother and the child to be a minimum of one time a month for two hours.
Section 388 Petitions
On November 9, 2018, mother filed a section 388 petition, requesting increased, unsupervised visitation. The court summarily denied the petition, since mother failed to establish that unsupervised visits were in the child's best interest.
On May 15, 2019, mother filed a second section 388 petition, requesting a step-up plan of unsupervised visits on a weekly basis, then extended day visits on a weekly basis, then weekend visits. As to changed circumstances, she alleged that she had maintained the same job since October 2017, the same apartment "for longer than that," and her sobriety since July 17, 2017. As to best interests, mother alleged that the child wanted to spend more time with her, was always happy to see her, and was sad when visits had to end. She further alleged that the change in order would be better for him since they would be able to spend more time together and deepen their bond, and he could spend time with his siblings.
On June 25, 2019, the social worker filed a written response to mother's section 388 petition and recommended that the court deny her request in part. The social worker recommended that her supervised visits be increased to twice a month for two hours.
On June 27, 2019, Lynn H. filed a section 388 petition requesting the court to set a section 366.26 hearing and allow her to proceed with adopting the child.
On June 28, 2019, the court granted the request for an evidentiary hearing on the section 388 petitions. It also modified mother's visitation order to be supervised visitation twice a month for two hours each, or one time a month for four hours.
The court held a hearing on September 4, 2019. The maternal grandmother testified on mother's behalf and stated that mother had been an addict since she was 11 years old, but had now changed. Mother was employed, she repaired relationships, and she was taking responsibility.
Mother's sister also testified on mother's behalf and said that mother had changed, in that she was holding a job. She also believed mother was clean and sober. A visitation monitor testified, but the court noted that he was biased toward mother.
Mother testified on her own behalf and confirmed that she started using drugs or alcohol when she was a preteen. She said she became clean and sober on July 17, 2017, and had been participating in Alcoholics Anonymous (AA) and Narcotics Anonymous (NA). She completed a 12-week parenting program, as well as an outpatient substance abuse program and an aftercare program. She testified that she was working and maintaining a residence now. Mother testified she believed the child was confused because, when Lynn H. would come to visit mother's children with him, her children called her "Lynn," but he called her "Mom." Mother said the child did not understand the situation, especially when she would tell him what she and her other children did on weekends and showed him pictures. He did not understand why he could not be there, and it made him sad.
On cross-examination, mother testified that the child called her "Mom." She said that when she was with the child, she referred to Lynn H. as "Lynn," and he usually did as well. However, when Lynn H. came to pick the child up, he would call her "Mom" or "Mommy." When mother was asked if she ever corrected the child when he called Lynn H. "Mom," mother said that she would sometimes say, "Oh, you mean 'Lynn'?" Mother admitted that at first she did not understand why he called Lynn H. "Mom," but now she accepted it.
On further cross-examination, mother testified that she considered herself an addict. She was asked if July 17, 2017, was the last day she used, or if that was the date she felt she was actually sober. Mother responded: "I think I may have drank a couple times within 3 months of that date, but yes, that was - I have not drank - I quit substances before that, and alcohol would have been - yeah, a few times within . . . " She was then asked to confirm that she testified she had no desire to use any substances or drink anymore.
After hearing testimony and argument from counsel, the court acknowledged that mother had done a great job and come a long way. However, it was concerned about escalating visits to being unsupervised. The court stated: "I am convinced by her testimony that she clearly is putting her emotional needs over the child's emotional needs, especially when we're talking about the clarification of who Lynn is. I think there's a little game being played by Mom. I know she loves her son, and that's why she is doing it. She can't help it. So I get that. But that's still putting her own needs above her son's."
The court further stated: "[The child] needs to have a mother. This person who is his mother is Lynn. She has been for the last several years. He wants to call her 'Mom.' Mom needs to let him call her 'Mom.' That's really troublesome to me. That's why I wouldn't go beyond supervised right now." The court added that it was concerned that mother was "undermining by showing the pictures of the family events," and that might confuse the child.
The court went on to point out that mother said her clean and sober date was July 17, 2017, "but then it turns out she has drank alcohol a few times." The court added: "So, to me, she is considering, maybe, she hasn't done narcotics since then, but the alcohol - I don't think any addict should be saying their [sic] clean and sober date - the loss of one drug when she is using another substance. So I disagree with that date . . . . [I]t gives me pause as to where she is really at with those, in my mind, relapses. Drinking alcohol when you've used since you're 11 years old, I think that is a problem, and I think that's . . . a lack of acknowledgment, even though Mother's made great progress."
The court proceeded to order that visitation would remain supervised at two hours, two times a month. It then said there was ample evidence to set a section 366.26 hearing. It noted that the child clearly identified Lynn H. as his mother, and the activities she engaged in were parental activities. The court stated it was appropriate to set a section 366.26 hearing and make the relationship permanent.
ANALYSIS
The Court Properly Denied Mother's Section 388 Petition
Mother asserts that she brought the section 388 petition to modify her visitation based on the facts that she had been clean and sober for more than two years and had completely turned her life around. She now contends the court misinterpreted her testimony concerning her sobriety and mistakenly believed she continued to drink after her clean and sober date of July 17, 2017. She claims that if the court had understood "the true facts" that she had been sober since July 17, 2017, it would have granted the step-up visitation plan she sought in her petition. Mother is essentially arguing that the court erred in denying her section 388 petition. We conclude the court properly denied the petition.
A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new or changed circumstances exist, and (2) the proposed change would promote the best interest of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 316-317.) A section 388 petition is addressed to the sound discretion of the juvenile court, and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion. (Id. at p. 318.) "After 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], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. [Citation.] 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." (Id. at p. 317.)
The juvenile court here did not abuse its discretion in denying mother's section 388 petition. Although she showed changed circumstances, mother failed to demonstrate that a changed order was in the best interest of the child. "[A] primary consideration in determining the child's best interests is the goal of assuring stability and continuity. [Citation.]" (In re Stephanie M., supra, 7 Cal.4th at p. 317.) As to best interests, mother merely alleged in her petition that the child wanted to spend more time with her, was always happy to see her, and was sad when visits had to end. She further alleged that the change in order would be better for the child because they would be able to spend more time together and deepen their bond, and he could spend time with his siblings. At the hearing, mother only argued that she had changed her life—by becoming sober, participating in AA and NA, maintaining a job, and maintaining visitation. She did not make any arguments concerning the best interest of the child.
The court acknowledged that mother's circumstances had changed and that she had done a great job. However, it clearly felt that modifying her visitation to be unsupervised was not in the child's best interest. The court believed mother was putting her emotional needs above the child's emotional needs and was "playing a little game" with regard to who Lynn H. was to the child. It was also concerned that mother was undermining the child's placement with Lynn H. by showing him pictures of mother and her other children at family events together, without him. Furthermore, the court stated the reason it did not want to grant unsupervised visits was because the child needed a mother, and the person who had been meeting his needs and was his mother was Lynn H. The court's comments demonstrate that it was focused on the child's best interest and wanted to assure stability and continuity for him. (In re Stephanie M., supra, 7 Cal.4th at p. 317.)
Mother's sole contention now is that the court misinterpreted or misheard her testimony regarding the date she reached sobriety, as shown by its belief that she drank alcohol a few times after July 17, 2017. She explains that she testified to drinking a few times, but those incidents occurred in the three or so months before July 17, 2017, which was the date she became clean and sober. We observe that mother's testimony was not clear, in that she said, "I think I may have drank a couple times within 3 months of that date . . . ." In any event, contrary to mother's claim, there is no indication that, if the court had understood she had been clean and sober since July 17, 2017, it would have granted her unsupervised visitation. The court was primarily concerned that mother was placing her emotional needs above those of the child, playing games by confusing him and referring to Lynn H. as "Lynn" when he would refer to her as "Mom," and undermining his placement. Because of these concerns, the court did not want the child to spend more time with mother, unsupervised.
Mother notes that, at the outset of the hearing, the judge said he had lost his hearing in his right ear. --------
We conclude that mother did not carry her burden of proof of showing that the requested modification in visitation was in the child's best interest. Thus, the court properly denied her section 388 petition.
We note mother's conclusory claim that the setting of the section 366.26 hearing "arose out of" the denial of her section 388 petition and, as such, there was insufficient evidence to support the setting of the section 366.26 hearing. To the extent she is arguing that the court erred in setting the section 366.26 hearing because it erred in denying her section 388 petition, we disagree. As discussed ante, mother failed to meet her burden of proof, and the court properly focused on the best interest of the child.
DISPOSITION
The writ petition is denied. The request for a stay of the section 366.26 hearing is also denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. SLOUGH
J.