Opinion
A150844
05-23-2017
J.S., Petitioner, v. SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. Contra Costa County Super. Ct. No. J13-01362
Petitioner Ja.S. (Mother), mother of eight-year-old J.S., seeks review by extraordinary writ, pursuant to California Rules of Court, rule 8.452, of the juvenile court's order setting the matter for a permanency planning hearing, pursuant to Welfare and Institutions Code section 366.26. Mother contends (1) there was substantial evidence that setting a section 366.26 hearing to consider a plan of legal guardianship was not in the best interest of J.S., who was in long term foster care, and (2) the Contra Costa County Children & Family Services Bureau (Bureau) erroneously failed to file a petition under section 388, which was required to seek modification of the existing court order of long term foster care. We shall deny the petition for extraordinary writ.
All further rule references are to the California Rules of Court.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
The following factual and procedural background is based primarily on our independent review of the record. In the writ petition, Mother's counsel has presented the facts selectively to reflect well on Mother, which provides an incomplete and misleading picture of the history of this case. Meanwhile, the Bureau has provided no background information at all preceding the March 8, 2017 permanent plan review hearing, citing rule 8.452(b)(1), which provides that the memorandum in a writ matter "must provide a summary of the significant facts." Here, "a summary of significant facts" should have also included, at a minimum, a brief discussion of the earlier phases of the case, to give context to what occurred at the March 8 hearing and the issues raised on appeal. (Rule 8.452(b)(1).)
On December 13, 2013, the Bureau filed an original petition alleging that J.S. came within the provisions of section 300, subdivision (j) due to the fact that J.S.'s brother had an infected burn on his leg; Mother had not administered the brother's psychotropic medication, as prescribed; and she was unwilling to have the brother back in her care.
In a detention/jurisdiction report filed on December 26, 2013, the social worker discussed the circumstances of J.S. and his three older half siblings, reporting that "[t]he professionals that have worked with [Mother] seem to agree that something is awry with the care of these children. However, the mother appears to be meeting the minimum level of care for them. She has provided shelter, food and makes sure that the children are educated." The Bureau recommended that J.S.'s brother be detained, but that J.S. and his two sisters remain in Mother's custody, with court ordered services.
At the detention hearing, which took place on December 26, 2013, the juvenile court found there was no necessity for J.S. to be detained. Subsequently, at a second detention hearing on January 7, 2014, the court ordered J.S. detained, after Mother had violated a court order by contacting J.S.'s brother inappropriately.
On April 15, 2014, the Bureau filed an amended petition, adding the following allegations under subdivision (b) of section 300: Mother had exposed J.S. to violence and abusive treatment of his older brother and had violated a court order by contacting the brother at the foster parents' church.
Following the April 22, 2014 jurisdiction hearing, the court sustained the allegations in the amended petition.
In the May 20, 2014 disposition report, the social worker related that Mother was the maternal grandmother of the four children. She had adopted the three older children in 2008, after their biological parents lost custody of them due to untreated substance abuse and mental health challenges. Mother, who adopted J.S. in 2010, reported that the identity of his biological father was unknown. Mother told the social worker that "she does not understand why her children were removed because she did not do anything wrong. Since the beginning, she has blamed [J.S.'s older brother's] behavior and stated that he was a 'problem' child and has serious mental health issues." She wanted only J.S. and his two sisters returned to her care. J.S. wanted to return to Mother, but the two sisters said that, though they loved her, they did not want to visit or live with her.
The social worker reported that the older brother had "been the target of his mother's punishments." He was not allowed to sleep on a regular bed like the other children, and she "constantly labeled him as a problem child who did not have any empathy for her."
The social worker described J.S. as an active five-year-old who had behavioral issues. He said he wanted to live with Mother "because she let him do whatever he wanted." He had been referred to individual therapy. All of the children were doing well in their placements. The court had ordered weekly visitation with the children, but J.S.'s sisters had refused to visit with Mother from the beginning. Mother had visits with J.S. and his brother, during which she made inappropriate comments to J.S. and had to be redirected.
Mother, who was observed to get agitated and aggressive very quickly and to blame others for her actions, was referred to a parenting education program and individual counseling. The Bureau recommended that the children remain in out of home placement and that Mother receive reunification services.
At the conclusion of the May 20, 2014 dispositional hearing, the court ordered J.S. to remain in out of home placement and further ordered reunification services for Mother and twice monthly supervised visitation with J.S.
In a six-month review report filed on October 28, 2014, the social worker reported that Mother had begun participating in individual counseling in July, and had completed her parenting education classes in June. J.S. was now in therapy and his behavior had greatly improved. He had been refusing to visit Mother since July. He had recently been placed in a new foster home with his two sisters. The Bureau recommended continued reunification services for Mother.
At the conclusion of the October 28, 2014 six-month review hearing, the court ordered continued reunification services for Mother, and ordered that family therapy with Mother and J.S. begin "once therapist indicates suitable [sic] to do so."
In the 12-month review report filed on March 16, 2015, the social worker related that Mother was having trouble finding appropriate housing. She had continued individual therapy. Her therapist reported that she was making significant progress in that she was now willing to discuss parenting concerns and work on improving her parenting skills.
Mother was visiting regularly with J.S.'s older brother and visits had gone well. In November 2014, J.S. and his sisters had expressed the wish to visit Mother. They then had several positive visits, but during visits in December and January, Mother began acting agitated, harsh, and rigid with the children. J.S. and his sisters had been refusing to follow rules in the their foster home around the time of visits, and J.S. was hitting his sisters after visits.
The Bureau recommended that Mother's reunification services be continued with respect to J.S. and his sisters.
The Bureau recommended that reunification services for J.S.'s older brother be terminated and that a section 366.26 hearing be set to determine a permanent plan for him.
At the conclusion of the March 16, 2015, 12-month review hearing, the court continued Mother's reunification services as to J.S. and his sisters.
In the 18-month status review report filed on August 17, 2015, the social worker reported that Mother had continued with counseling and was actively searching for housing. J.S. had been moved to a new placement because he had been "oppositional and willful" and "uncooperative" in his former placement, and his foster parents felt unable to manage his behaviors. The children's weekly supervised visits with Mother had been going well, with the children excited to see her. Mother was eager to regain custody of the children and had requested family therapy. J.S. had stated that "he would like to live with his sisters first, brother second, and then [Mother,] and ends by saying he would like to be with his family."
The social worker concluded that after 18 months of reunification services, "the Bureau is not able to safely recommend the children be returned to [Mother's] care. [She] has not demonstrated a significant change in behavior over the past reporting period." The Bureau therefore recommended that the court terminate Mother's reunification services as to J.S. and his sisters and order long term foster care as the most appropriate plan.
On August 17, 2015, at the conclusion of the 18-month review hearing, the court terminated reunification services and ordered a plan of long term foster care for J.S.
On February 16, 2016, Mother filed a section 388 petition, stating that she had secured housing in Merced and had continued her individual counseling until she had moved. She requested that the court order family counseling for her and J.S., which "was ordered previously but never took place, to prepare [J.S.] to return to [Mother's] home." Mother included with her petition a copy of her lease agreement and a letter from her long-time therapist describing the significant progress Mother had made in therapy and suggesting family therapy to facilitate reunification.
In a status review report filed on February 22, 2016, the social worker reported that J.S. had recently been moved to a new placement after his prior caregiver gave notice due to his behavior. He was settling into his new placement and had expressed the desire to stay in the home. J.S. was now seven years old, was developmentally on target for his age, and had "been described as very loving, understanding, and a sweet boy who loves attention." Past behavioral concerns included J.S. "ripping and writing on clothes, tantrums, faking tears, and attempting to hit or hurt other children in the home." J.S. reported that he would like to be with his family; he had said more than once that he would like to live with his sisters or brother, but did not want to return to Mother.
Mother had ongoing phone contact with J.S. and had said she would like him to return to her care. Mother also had a scheduled "family session" with J.S. There was a "disconnect" with Mother about the purpose of the family sessions with the children, which were for closure for the children since they would not be returning to Mother's care. Although the social worker had repeatedly explained that she was no longer receiving reunification services, Mother had expressed that she wanted a family session so that the children could be returned to her. A visit supervisor had reported that monthly visits with the children "appears to be more damaging then [sic] they are beneficial as evidenced by the children's demeanor at the beginning and end of visitation."
In September 2015, W.S., an adult sister of all four children had contacted the Bureau regarding possible placement of the children with her. She currently lived in Merced with her fiancé and their three children. She had learned from the children's biological mother that they had been removed from Mother's care and she had contacted different child welfare agencies to find out where they were. W.S. did not have room for all of the children, but said she wanted to be considered as a placement for J.S. and his two sisters.
The Bureau was working to find a permanent home for J.S., but presently recommended that J.S. remain in long term foster care.
As to J.S.'s siblings, the Bureau recommended that a section 366.26 hearing be set to implement a plan of legal guardianship with the current caregiver for J.S.'s older brother and a plan of adoption with the current caregiver for his two sisters.
On February 22, 2016, the court ordered that J.S. continue in long term foster care and denied Mother's section 388 petition.
In a status review report filed on August 17, 2016, the social worker reported that on June 17, J.S. had been moved to the home of his adult sister and her family. He was adjusting to the new placement, though there had been "some bumps in the road such as [J.S.'s] cursing, urinating in discreet places, and working with his insomnia." He was learning how to follow the household rules and had stated that he now wanted to stay in the placement with his sister.
Mother had continued to participate in supervised visits and telephone contact with J.S., and expressed the wish that he return to her care. Although she no longer received services from the Bureau, she was participating in individual therapy, regarding which her therapist reported that she "has really come a long way . . . ." She also had been actively involved in a mothers' group. Her monthly visits with the children were going well and J.S. was usually happy to see Mother. J.S. was also continuing to have contact with his siblings; they had recently gone on an outing to a museum organized by their court appointed special advocates (CASAs).
The Bureau recommended that J.S. continue under a plan of long term foster care.
In a report dated August 16, 2016, J.S.'s CASA also recommended that he remain in his current placement with his adult sister.
At the August 17, 2016 hearing, the court ordered that J.S. continue the plan of long term foster care.
In a status review report filed on March 8, 2017, the social worker reported that J.S. had expressed that he was happy living with his adult sister, W.S., and her family, and wished to stay there. W.S. had stated that she loved J.S. and was ready to move forward with legal guardianship.
The social worker did note that J.S. had said once that he wanted to live with Mother because the caregivers' young children were always bothering him. He later told the social worker that he wanted to live with his sister but would like to go to Mother's home on weekends for privacy from W.S.'s children.
J.S. had said that he "really likes his school," and his second grade teacher reported that he was one of the most improved students in her class; last year he could barely read simple words but was now reading at grade level. He also had received an award for math excellence. In addition, his therapist reported that his emotional, hyperactive, and oppositional behaviors had decreased and he was "doing significantly well in his placement." The social worker did note that J.S. "has his good and bad days within his placement, but he has more good days than not." J.S. also continued to have periodic visits with his three siblings, and had expressed "that he needs to be able to have visits with his family in order to stay connected to them."
The social worker described J.S.'s placement with his adult sister as positive in that his sister was working "diligently to incorporate [J.S.] into her household, and exhibits strength in keeping [him] an integral part of her family. [She] provides a safe, stable and loving home environment for [J.S.] to grow up in along with her three children. [W.S.] is committed to breaking the cycle of family dysfunction within her family."
Mother continued to believe she needed to be reunited with J.S. The social worker had observed Mother "to be manipulative and harsh in her words during visits. She does not take no for an answer, and will try every attempt to persuade [J.S.] to dislike his placement" and "to force or persuade [him] to say that he wants to be returned to her care." Although it was clear that Mother and J.S. loved each other very much, the concerns that brought Mother to the Bureau's attention still existed and the Bureau was not seeking to return J.S. to Mother's care. The Bureau believed J.S. was now in a stable "forever home" like his siblings. The Bureau therefore recommended that a section 366.26 hearing be held with the selected plan of legal guardianship.
In a memorandum prepared on March 7, 2017, the social worker detailed a February supervised visit J.S. had with Mother, at which Mother acted inappropriately. The worker then stated that Mother's "propensity to become so easily angered and irritated during the visits with the child is concerning as the worker has observed that [Mother] has serious issues with the limitations that this worker and other workers set forth in the visit. It is clear that her irritability absolutely causes [J.S.] to become uncomfortable and affects his emotions and demeanor."
J.S.'s CASA also filed a report on March 8, 2017, in which she described his improved behavior and school performance. The CASA recommended that J.S. remain in his current placement.
At the March 8, 2016 postpermanency status review hearing, Mother's counsel lodged written objections to the most recent status review report and asked that the court order continued monthly visits with J.S. pending the section 366.26 hearing.
At the conclusion of the hearing, the court ordered monthly visitation for Mother and scheduled a section 366.26 hearing for June 23, 2017. The court order stated that the court had received documents from Mother during the hearing and that "[Mother's] objections are lodged with the court."
On April 9, 2017, Mother filed a petition for extraordinary writ seeking review of the juvenile court's order.
On April 10, 2017, we denied Mother's request for a temporary stay of the juvenile court proceedings pending determination of this petition.
DISCUSSION
I.
Mother contends there was substantial evidence that setting a section 366.26 hearing was not in the best interest of J.S., who was under a plan of long term foster care. According to Mother, the court instead should have either returned J.S. to her custody with family maintenance services or provided six additional months of reunification services.
In support of this contention, she cites subdivision (f) of section 366.3, which provides: "Unless their parental rights have been permanently terminated, the parent or parents of the child are entitled to receive notice of, and participate in, [postpermanency status review] hearings. It shall be presumed that continued care is in the best interests of the child, unless the parent or parents prove, by a preponderance of the evidence, that further efforts at reunification are the best alternative for the child. In those cases, the court may order that further reunification services to return the child to a safe home environment be provided to the parent or parents up to a period of six months, and family maintenance services, as needed for an additional six months in order to return the child to a safe home environment."
The Bureau points out that Mother did not raise this issue at the time of the postpermanency status review hearing, which the Bureau claims means she waived her right to raise it now. Although Mother lodged written objections to matters contained in the most recent status review report, her counsel stated at the hearing that she did not believe Mother was entitled to a contested hearing because reunification services had previously been terminated and the current request was to change J.S.'s status from long term foster care to legal guardianship. The court agreed with counsel's assessment. Counsel did, however, request that the matter be set for a contested section 366.26 hearing.
Relevant to this question of waiver is M.T. v. Superior Court (2009) 178 Cal.App.4th 1170, 1180 (M.T.), in which Division Three of this District found that a parent does not automatically have a right to an evidentiary hearing to contest recommendations at a postpermanency status review hearing to schedule a section 366.26 hearing. The M.T. court held that courts may require a parent to first make an offer of proof to justify a contested hearing because "when a child is in long-term foster care, the court must set the matter for a section 366.26 hearing at a section 366.3 postpermanency status review hearing unless there is clear and convincing evidence that it would not be in the best interest of the child to do so. (§ 366.3, subd. (h).) It is the parent's burden to prove that setting a section 366.26 hearing would not be in the child's best interest." (M.T., at p. 1180, citing Sheri T. v. Superior Court (2008) 166 Cal.App.4th 334, 341; but cf. In re J.F. (2011) 196 Cal.App.4th 321, 327 [Fourth District Court of Appeal held right to a contested postpermanency review hearing could not be conditioned on an offer of proof, although that case did not involve setting of a section 366.26 hearing].)
Here, Mother neither requested nor provided an offer of proof justifying the setting of a contested postpermanency status review hearing. (See M.T., supra, 178 Cal.App.4th at p. 1180.) Hence, she has waived the issue on appeal.
Moreover, even if the juvenile court's agreement with counsel's incorrect statement regarding whether Mother was entitled to a contested hearing excused Mother's failure to request a contested hearing and make an offer of proof justifying the setting of such a hearing, we would find any error harmless beyond a reasonable doubt. (See M.T., supra, 178 Cal.App.4th at pp. 1181-1182.)
In her writ petition, Mother claims only that "[t]he record is uncontroverted that the barrier to the mother achieving reunification with [J.S.] was her lack of housing. However, at the time of the post permanency review hearing of March 8, 2017, it was explicitly stated by the [Bureau] that the mother had obtained, and continued to maintain, safe and suitable housing in the City of Merced, therefore effectively eliminating the remaining barrier to returning [J.S.] to his mother's custody." The record belies Mother's attempt to reduce the barriers to reunification to the issue of suitable housing. The record shows that, as the social worker noted in her report for the March 8 hearing, the concerns that brought Mother to the Bureau's attention still existed. Despite participation in therapy and parenting education, her behavior during even limited, supervised visits with J.S. continued to be quite problematic. On the other hand, the record reflects that J.S.'s adult sister was providing "a safe, stable and loving home environment for [J.S.] to grow up in" and was "committed to breaking the cycle of family dysfunction within her family." J.S. wanted to remain in his sister's home and his behavior and school performance had notably improved while in her care.
As in M.T., based on the record before us, there is no reason to believe Mother could have met her burden to demonstrate it was in J.S.'s best interest not to set a section 366.26 hearing and to consider either returning J.S. to her custody or providing six more months of reunification services. (See M.T., supra, 178 Cal.App.4th at pp. 1181-1182.) Accordingly, any error in failing to hold a contested postpermanency review hearing was harmless beyond a reasonable doubt. (See id. at p. 1181.)
II.
Mother contends the Bureau failed to file a petition under section 388 to request a change in the permanent plan to legal guardianship, which she believes was required to seek modification of the existing court order of long term foster care.
At a postpermanency status review hearing for a child in foster care, held pursuant to section 366.3, subdivision (d), the court is required to "consider all permanency planning options for the child including whether the child should be . . . appointed a legal guardian . . . ." (§ 366.3, subd. (h)(1).) Nothing in section 366.3 suggests that the social services agency must file a section 388 petition before the court may consider other placement options such as legal guardianship. Instead, by its terms, section 366.3 requires the court to consider such other placement options at the hearing. (See § 366.3, subd. (h)(1); compare § 388, subd. (a)(1) ["Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . or the child himself or herself . . . 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"], italics added.)
The only case cited by Mother is not relevant to the present situation as it involved the juvenile court's summary dismissal of a father's section 388 petition, in which he had sought modification of the court's custody order and requested removal of the child from the mother's home. (See In re Victoria C. (2002) 100 Cal.App.4th 536, 538.) --------
Accordingly, Mother's claim that the Bureau was required to file a section 388 petition before the court could consider legal guardianship for J.S. is without merit.
DISPOSITION
The petition for extraordinary writ is denied on the merits. Our decision is final as to this court immediately. (Rule 8.490(b)(2)(A).)
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.