Opinion
F055647
1-29-2009
In re N.W., et al., Persons Coming Under the Juvenile Court Law. TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. E.O., Defendant and Appellant.
Laura D. Pedicini, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen Bales-Lange, County Counsel, John A. Rozum and Amy-Marie Costa, Deputy County Counsel, for Plaintiff and Respondent.
Not to be Published in the Official Reports
OPINION
THE COURT
Before Levy, Acting P.J., Cornell, J. and Gomes, J.
E.O. (mother) appeals from orders terminating her parental rights (Welf. & Inst. Code, § 366.26) to her daughter, N.W. and selecting a permanent plan of guardianship for her son, U.B. Mother challenges the juvenile courts denial, without a hearing, of a section 388 petition she brought to reopen reunification services. Mother also argues the court was unable to ascertain N.s current wishes such that there was insufficient evidence to support the courts finding that she was adoptable. On review, we disagree with mother and will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
PROCEDURAL AND FACTUAL HISTORY
In September 2006, mothers children, then five-year-old N. and six-month old U., were detained after the Tulare County Health and Human Services Agency (Agency) filed a dependency petition following mothers failure to comply with her voluntary family maintenance case plan. At the October 2006 jurisdiction hearing, mother admitted allegations under section 300, subdivision (b) contained in an amended dependency petition, that her substance abuse rendered her unable to provide the children with adequate care and supervision, and she failed to adequately protect them from exposure to controlled substances. In addition, the juvenile court found true allegations under section 300, subdivision (g) that the childrens fathers left them without any provision for support. At the dispositional hearing, the court adjudged the children dependents of the court, removed them from parental custody and ordered reunification services for mother and N.s presumed father. With regard to mother, the court ordered her to participate in substance abuse testing and counseling, and to complete a parenting class. The children were placed in foster homes.
At the end of October 2006, U. was admitted to Childrens Hospital Central California for injuries he suffered while in foster care, which included a traumatic brain injury that resulted in a right-sided hematoma with bleeding noted between the two brain halves and extensive retinal hemorrhages in both eyes. Doctors determined him to be a victim of shaken baby syndrome. U. became a client of Central Valley Regional Center (CVRC) and an individualized family service plan was developed.
By the six-month review hearing in April 2007, mother had substantially complied with her case plan: she had entered a residential treatment program, with which she had been compliant; she failed to appear for nine drug tests, but had otherwise tested negative; she needed to take only one more session to complete her parenting education class; and she had been visiting the children, where the interaction between mother and the children was good. Mother told the social worker she felt she needed counseling services to address anger management issues. The court continued reunification services for mother and set a 12-month review hearing for October 2007. In June 2007, the social worker referred mother to family services for anger management classes, but mother told the social worker the next month that she could not afford the classes.
In the 12-month review report, the Agency recommended that mother be given an additional six months of reunification services as to N., but that reunification services be terminated as to U. and a permanent plan of long term foster care selected. N. had been placed with her paternal grandmother, who was willing to adopt N. if mother did not complete her case plan, while U. was placed in a CVRC nursing home. U., who had serious medical problems, had made good progress while in the CVRC home. Although U. was 18 months old, he was not able to sit independently or crawl. A shunt was in place which required daily measuring of his head circumference. He had oral motor deficits affecting his swallow and speech development, and was legally blind. The social worker requested an Agency nurse complete a needs assessment to determine if he continued to require a nursing home for his level of medical care.
Mother had not completed her case plan: since April 2007, mother had 17 clean tests and seven no shows with no explanation for the missed tests; she was asked to leave the residential program after 30 days due to noncompliance; she returned to an outpatient program, which she was completing with aftercare; she still had not submitted her certificate of completion for the parenting class and admitted she had not attended the last class; and while she had completed a behavior management class, she had not yet entered anger management. Mother remained compliant with attending U.s medical appointments and they appeared to have retained a "strong bond." Mother, however, had difficulty focusing on instructions for U.s care when he was with her. Mothers visits were supervised until September 1, 2007, when mother was allowed to have part of the visit unsupervised if she remained in the Agencys office during the visit. Although the social worker reported that mother had been consistent in her visitation with the children, a report by Court Appointed Special Advocates (CASA) regarding N. stated that mothers visits, which were scheduled to occur weekly for one hour, were averaging only two to three times per month because mother often was sick or could not find a ride.
The social worker noted that mother appeared to want to reunify with the children, but felt mother was not completely confident in her ability to care for U. with his multiple medical needs. The social worker believed it would not be too difficult for mother to complete her parenting and anger management classes in the next six months "if she was truly dedicated to reunification." The social worker reported that N. enjoyed the care of both mother and grandmother, and was happy to be in school and have a stable home.
At the 12-month review hearing, the court set a contested hearing after stating that based on the report it might not agree with the recommendation regarding an additional six months of services. At the contested hearing, mothers counsel made an offer of proof, which the court accepted, that if mother were called to testify, she would state: (1) she had completed her drug treatment and missed two of the drug tests because she was medically unable to attend them due to a miscarriage; (2) she had completed all of the parenting classes except one, and since it had been so long since she was in the class, she would need to repeat the whole program, which she was willing to do; (3) she had signed up for the anger management classes and orientation that day; and (4) she wanted to reunify with both children. The court found mother was not in substantial compliance with her case plan and although she had completed her substance abuse treatment, it was not evident she had made substantive progress with respect to parenting or anger management. The court was concerned about whether mother was clean and sober because of the inconsistent testing and about her inconsistent visits with N. Accordingly, the court terminated reunification services as to both children and set a section 366.26 hearing for February 22, 2008, which later was continued to May 30, 2008.
In May, prior to the actual section 366.26 hearing, mother filed a section 388 petition seeking to reopen reunification services. As far as changed circumstances, mother alleged that since October 30, 2007, she had been working on the remainder of her case plan: (1) she had completed 14 of 18 sessions of parenting training and would complete the course on schedule; (2) she had completed the anger management program; (3) she began drug testing again and had several consecutive clean tests, with her "clean date" being June 2006; (4) she obtained adequate housing in which she could care for the children; and (5) she continued to visit regularly with both children. The petition stated that reopening services would be better for the children because ". . . it would allow the siblings to be raised together in the home of their natural mother. If granted only for U[.], it would allow [h]im to return to the [m]other with whom he bonded before being removed in this action."
In anticipation of the section 366.26 hearing, the Agency prepared an assessment for each child. With respect to U., the Agency recommended a permanent plan of legal guardianship with his current caregivers, who were willing to consider adoption at a later time but did not want to dismiss dependency since U. had only been placed with them for one month. It was noted in the report that mothers supervised visits with U. were "fairly regular" and contact between them was "a happy time for both," although mother tended to over-stimulate U. during visits and failed to recognize it as a problem.
With respect to N., the Agency recommended the court find her adoptable and order termination of parental rights. The social worker explained in the report that N. had been with her prospective adoptive parents, who are her paternal grandparents, since July 2007, and they were very committed to adopting her. Mother had maintained weekly visits with N., but the case worker aide noted mother seemed to devote more attention to U. during visits and reported N., who appeared bonded to her paternal grandmother, did not cry or try to hold onto mother at the end of visits. The social worker stated in the report that he was opposed to reopening reunification services for mother because the court terminated reunification services due to mothers failure to complete services after being given a year to do so, mother had also participated in voluntary family maintenance services which failed to ameliorate her controlled substances issues, and N. continued to do well in her placement with her paternal grandmother and they were bonded to each other.
With respect to N.s statements concerning placement and the prospective adoption, the social worker reported that N., who was six years old, "still does not fully understand the adoption process, but she has stated that she does love living with the relative caretaker." In a CASA report prepared for the section 366.26 hearing, the CASA worker stated that N. said she was happy living with her grandma, grandpa and great grandma, and N. added "she thinks about her mom all the time and if she could live anywhere with anyone, she would have her mom move in their house."
At the May 30 section 366.26 hearing, mothers counsel advised the court he had not received a response to the section 388 petition he filed on May 7. The court responded "[t]hat 388 has been denied, counsel." The court apologized that a response had not gotten out, explaining that the file was in another department. The matter proceeded with the Agency submitting on the section 366.26 reports prepared for each child and asking the court to take judicial notice of the entire case file, which it did. Mothers counsel asked the court to consider the attachments to, and the statements made in, the section 388 petition. The Agencys attorney asked the court to adopt the Agencys recommendations. Mothers attorney stated there was nothing he could say regarding U., but argued that it would be detrimental to terminate mothers relationship with N., and although mother might not be in a position to reopen services or reunify, she was getting her life in order. The childrens attorney stated she was in agreement with the recommendation, as there was not a strong bond between mother and N., who was bonded to her paternal grandmother, and it was in N.s best interest to proceed with adoption.
The court ordered that there be some sibling contact between the children as arranged by their caretakers. As to N., the court stated that it had no doubt mother loved her and would like to have a relationship with her, but the parental relationship was clearly with the paternal grandmother and N. was entitled to permanence and stability, which could not be delayed so mother could reunify. Therefore, the court terminated parental rights as to N. and selected a permanent plan of adoption. With respect to U., the court selected a permanent plan of guardianship, with the goal being adoption, and ordered monthly, supervised visits between mother and U.
DISCUSSION
Section 388 Petition
Mother contends the juvenile court abused its discretion when it denied her section 388 petition without a hearing. On review, we disagree and conclude the juvenile court properly exercised its discretion.
By way of background, a juvenile court dependency order may be changed, modified, or set aside at any time. (§ 385.) A parent may petition the court for such a modification on grounds of change of circumstance or new evidence. (§ 388, subd. (a).) The parent, however, must also show that the proposed change would promote the childs best interests. (§ 388, subd. (c); Cal. Rules of Court, rule 5.570(e).) Whether the juvenile court should modify a previously made order rests within its discretion and its determination may not be disturbed unless there has been a clear abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318 (Stephanie M.).) The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. 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. (Stephanie M., supra, at pp. 318-319.)
Section 388, subdivision (a) states, in pertinent part: "Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition . . . shall set forth in concise language any change of circumstance or new evidence which are alleged to require the change of order or termination of jurisdiction."
Section 388, subdivision (c) states, in pertinent part: "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 . . .".
To trigger the right to a full hearing on a section 388 petition, the petitioning party must make a prima facie showing for relief. (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) If the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing. (In re Jasmon O. (1994) 8 Cal.4th 398, 415 (Jasmon O.).) The petition must be liberally construed in favor of its sufficiency. (Ibid.; see also Cal. Rules of Court, rule 5.570 (a).)
Having reviewed the record as detailed above, we conclude the juvenile court did not abuse its discretion by denying mothers petition without the benefit of a hearing. First, mother did not make a prima facie case for changed circumstances. While the petition asserted that circumstances had changed because mother had completed more of her case plan and tested clean, no evidence was presented that in fact mother had tested negatively for drugs. Similarly, she offered nothing more than mere conclusion that she had obtained adequate housing in which she could care for the children. These assertions will not suffice for the requisite prima facie showing. (In re Edward H. (1996) 43 Cal.App.4th 584, 593 (Edward H.).) "The references in In re Marilyn H., supra, 5 Cal.4th at page 310, to a `prima facie showing is not an invitation to section 388 petitioners to play `hide the ball in pleading changed circumstances or new evidence. 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. [Citation.] If a petitioner could get by with general, conclusory allegations, there would be no need for an initial determination by the juvenile court about whether an evidentiary hearing was warranted. In such circumstances, the decision to grant a hearing on a section 388 petition would be nothing more than a pointless formality." (Edward H., supra, 43 Cal.App.4th at p. 593.)
Even if we were to find a prima facie showing of changed circumstances, we would nevertheless uphold the courts decision because mother did not make a prima facie showing that continued reunification services would promote the childrens best interests. (Jasmon O., supra, 8 Cal.4th at p. 415.) Mothers best interest allegation — that continued reunification services would allow the children to be raised together in mothers home — could not sustain a finding that the childrens need for permanency and stability would be advanced by an order for services.
To understand the element of best interests in the context of a section 388 motion brought, as in this case, after the court terminated reunification efforts, we look to our Supreme Courts decision in Stephanie M., supra, 7 Cal.4th at page 317: "[A] primary consideration in determining the childs best interests is the goal of assuring stability and continuity. [Citation.] `When custody continues over a significant period, the childs need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child. [Citations.] [¶]. . . [¶] 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 (In re Marilyn H., supra, 5 Cal.4th 295, 309), and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. (Id. at p. 302.) 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."
Simply put, mothers evidence did not establish that the childrens need for permanency and stability would be advanced by a new order for services. Mother, however, overlooks the Stephanie M. imperative and instead urges this court to apply factors discussed in In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-532, to evaluate the childrens best interests. Those factors are: the seriousness of the problem leading to dependency and the reason that problem was not overcome; the strength of relative bonds between the dependent children to both parent and caretakers; and the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually had been. (Ibid.) Then, she fails to discuss those factors except to state that they uniformly favor her.
We decline to apply the Kimberly F. factors if for no other reason than they do not take into account our Supreme Courts analysis in Stephanie M. of best interests especially after reunification efforts have been terminated. At most, the Kimberly F. court reviewed the facts in Stephanie M. and compared them with the underlying facts in their case. (Kimberly F., supra, 45 Cal.App.4th at pp. 533-534.) Ultimately, the factor upon which mother relies in arguing best interests is the interest in preserving biological families. Under the holding in Stephanie M., we cannot consider biological ties as paramount at this stage. (Stephanie M., supra, 7 Cal.4th at p. 317.) We find no abuse of discretion.
N.s Wishes
According to section 366.26, subdivision (h) and In re Juan H. (1992) 11 Cal.App.4th 169, the juvenile court shall "consider the wishes of the child" to the extent ascertainable in all section 366.26 termination proceedings. To that end, the code also requires that an assessment prepared for a section 366.26 hearing include a "statement from the child concerning placement and the adoption or guardianship, unless the childs age or physical, emotional or other condition precluded his or her meaningful response, and if so, a description of the condition." (§§ 366.21, subd. (i)(1)(E), 366.22, subd. (c)(1)(E).) Further, section 317, subdivision (e) regarding the responsibilities of a dependent childs counsel, states if the child is four years of age or older, counsel shall interview the child to determine the childs wishes and to assess the childs well-being, and shall advise the court of the childs wishes.
Mother contends the juvenile court failed to consider N.s wishes before terminating parental rights. Specifically, mother asserts that it was impossible for the court to comply with its mandatory duty to consider N.s wishes because the assessment report contained "scant information" regarding those wishes and N.s counsel failed in her duty to inform the court of N.s wishes. Mothers argument boils down to a criticism of the Agencys reporting. The Agency disclosed that N. did not fully understand the adoption process, but did state she loved living with her foster mother. Nevertheless, mother complains there is no showing the Agency adequately explained to N. the meaning of adoption and assumes the social worker did not adequately question N.
We note, as the Agency does, that mother raises these complaints for the first time on appeal. Certainly, there was nothing to prevent mother from either objecting to or otherwise questioning the purported evidentiary insufficiency or offering her own evidence on the subject if she believed N.s wishes conflicted with the Agencys recommendations. Arguably, mother has forfeited her complaints over the lack of evidence by her failure to object below. (In re S.B. (2004) 32 Cal.4th 1287, 1293; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339.) In light of mothers contention that her counsel was ineffective for failing to object to the report, even were we to conclude mother did not forfeit her challenge at least to the courts consideration, we are not persuaded that the court erred or, in any event, that reversal is warranted in N.s case.
Insofar as mother claims the court failed to consider N.s wishes before terminating parental rights, we disagree. The juvenile courts obligation under section 366. 26, subdivision (h) to consider the wishes of the child does not require direct evidence of the childs wishes or of the childs awareness that the proceeding is a termination action for purposes of assessing the childs preferences. (In re Leo M. (1993) 19 Cal.App.4th 1583, 1592 (Leo M.).) Instead, where practicable and consistent with the best interests of the child, the department should attempt to obtain some evidence of the childs feelings from which the court can then infer the childs wishes regarding the issue confronting the court. (Ibid.) In the absence of evidence to the contrary, we will presume the court has performed its statutory obligation (Evid. Code, § 664) on behalf of the child. (Leo M., supra, 19 Cal. App.4th at p. 1594.)
On review of the record, we find sufficient evidence to conclude the court could reasonably ascertain N.s wishes. As shown in the social workers report, N. loved living in her present home. From this statement, as well as the statement in the CASA report prepared for the hearing that N. said she was happy in her present home, the court reasonably could conclude that N. wished to grow up there. For a child who was only six years old, these remarks are as direct a statement of N.s wishes as likely could have been obtained. The court reasonably could have inferred from the social workers statement that N. "still does not fully understand the adoption process" that the social worker attempted to explain the process to her, but because of her young age, she was not able to understand it. We are satisfied the statements constituted substantial evidence of N.s feelings on the subject of termination. Absent a showing to the contrary which mother has not made, we will presume the court performed its statutory obligation on N.s behalf. (Leo M., supra, 19 Cal. App.4th at p. 1594.)
As for N.s counsels obligation under section 317, we cannot say on this record that she failed to interview her young client or that counsel in urging termination as to N. argued against N.s wishes. (Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 72 [appellant has a burden to affirmatively show error on the record].) Although the record demonstrates that N.s counsel did not communicate N.s wishes directly to the court, thereby failing to follow the statutory requirement of advising the court as to N.s wishes, mother has failed to show prejudice as the court had ample information regarding N.s wishes.
Finally, even assuming there was error, mother fails to show that reversal is warranted in N.s case. She offers no persuasive argument that the error resulted in a miscarriage of justice so that it is reasonably probable a different result would have occurred in the absence of the purported error. (Cal. Const., art. VI, § 13; In re Celine R. (2003) 31 Cal.4th 45, 59-60.)
DISPOSITION
The orders denying the section 388 petition terminating parental rights as to N. and selecting a permanent plan of guardianship as to U. are affirmed.