Opinion
A159206
02-18-2020
M.B., Petitioner, v. THE 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. J1500986, J1500987)
M.B. (Mother), mother of eight-year-old M.J. and seven-year-old Z.J., petitions this court to set aside the juvenile court's order granting the Contra Costa Children and Family Services Bureau's (the Bureau) petition for modification (Welf. & Inst. Code, § 388) and scheduling a permanency planning hearing under section 366.26 (366.26 hearing). We deny the petition.
All further statutory references are to the Welfare and Institutions Code.
Mother's oldest child, K.J., and the children's alleged father do not challenge the order.
FACTUAL AND PROCEDURAL BACKGROUND
On September 22, 2015, the Bureau filed a dependency petition alleging M.J. and Z.J. and their older sibling K.J. were at risk in Mother's home. There were soiled clothes and garbage bags filled with rotting food throughout the home and the floors were layered with dirt. M.J. and Z.J. had a very strong smell of urine and were "shunned" by other children at their preschool "because of the 'smell.' " Mother had a child welfare history that included general neglect of all three children, domestic violence with the children's father in the children's presence, and physical abuse of K.J. The juvenile court detained all three children and placed them in the home of a nonrelative extended family member. Mother pleaded no contest to the petition as amended and the court took jurisdiction over the children. At disposition, the court removed the children from Mother's care and granted reunification services to Mother.
At a contested six-month review hearing, the juvenile court continued reunification services to Mother and the children remained in their placement. The court granted Mother an additional six months of services at the 12-month review hearing.
The Bureau reported in its 18-month review report that Mother was participating in services and regularly visiting the children. K.J. had a 30-day overnight visit with Mother. While Mother had mental health issues and was struggling to meet K.J.'s needs, the Bureau believed she was ready to have K.J. back in her home with family maintenance services. The Bureau recommended that M.J. and Z.J. remain in their foster home because Mother was not ready to care for all three children and M.J. was anxious about the idea of returning to Mother's care. The juvenile court returned K.J. to Mother's care, terminated reunification services to Mother, and scheduled a 366.26 hearing as to M.J. and Z.J.
According to the Bureau's 366.26 report, M.J. and Z.J. were doing well in their foster home. They had formed a special bond with their foster mother, who was willing and able to provide them with a good home. The children had regular unsupervised visits with Mother and K.J. at Mother's home that generally went well other than some concerns about Mother's ability to properly supervise all of the children during the visits. The children's alleged father had been notified of the proceedings but did not want to be involved and had declined the opportunity to visit the children. The Bureau recommended a permanent plan of legal guardianship for M.J. and Z.J. At a 366.26 hearing held on August 23, 2017, the juvenile court awarded the foster mother legal guardianship, granted Mother a minimum of two, one-hour supervised visits per month, and dismissed the dependency.
On October 17, 2018, Mother filed a 388 petition for modification seeking to have the children returned to her care. She stated she was "working," "keeping my house in good order," had completed parenting and domestic violence classes, and had "changed my life in general."
The Bureau conducted an assessment in response to Mother's 388 petition. A social worker visited Mother's home in December 2018 and immediately noticed a strong odor of "rotting food, body odor, and urine." The social worker found rotting food, dirt, sticky substances, and clutter throughout the home. When the social worker visited the following month, the home was superficially cleaner as Mother had hidden all of the dirty dishes and clothing inside cabinets and closets. Mother told the social worker that she realized the home was dirty; she said she was "overwhelmed" and did not know how to clean without help. She then began incoherently speaking of the death of her mother and made multiple false statements.
The social worker also met with M.J. and Z.J.'s guardian, who reported that the children were doing well in her care. The guardian said the children had been visiting Mother but experienced anxiety and trauma after visits. M.J. would have issues "gorging" and Z.J. would wet her bed. Both children would be traumatized after "smelling [K.J.] (who smelled like [Mother's] home)." The children were seeing a therapist for their "trauma responses"; the therapist told the social worker that the children had severe post-traumatic stress and that removing them from the guardian's home could be detrimental to their mental health.
The social worker met with M.J., who was shaking and said she was scared to return to Mother's home. She said she enjoyed her current home because she was safe, clean, could eat when hungry, and had a lot of books. She said, "I love my mommy but I can't live with her." At the end of the interview, M.J. ran to her guardian and began "sniffing her." She said "she does that because, '. . . smelling a real mommy' " who is " 'clean' " " 'makes me feel good.' " Z.J. also did not want to return to Mother's home; she said she did not want to be dirty and " 'have to stink all the time.' " She felt safe in her current home where she was happy and able to " 'be a kid.' " Both M.J. and Z.J. said they were sad that K.J. has to "go through that" and continue to live with Mother.
The juvenile court denied Mother's 388 petition. On September 17, 2019, the Bureau filed its own 388 petition seeking to have the court schedule a 366.26 hearing to change the permanent plan from legal guardianship to adoption. The Bureau reported that the guardian was previously unaware she had the option of adopting M.J. and Z.J. and that she wished to do so. Both children were "very connected" to their guardian and told the social worker they wanted to be adopted. They were in good health, doing well at their private school and with after school activities, and enjoyed reading, doing puzzles, and playing games. They were attending therapy, including individual therapy and family therapy with K.J. The therapist opined that visitation with Mother (or the alleged father) would not be in the children's best interest.
At a December 16, 2019 hearing on the 388 petition, Mother testified she had not visited the children since Christmas of 2017. She said she had requested visits since that time but was denied because a social worker told her there was a no contact order between her and the children. Mother testified that she wanted to see the children and wanted them in her life. She could not figure out why she had not been allowed to visit.
The juvenile court tentatively ruled in favor of the Bureau, stating there was a change of circumstances and it was in the children's best interest to change the permanent plan. The court continued the matter for two days to make sure the alleged father had been properly noticed. At the continued hearing, after confirming the alleged father had been properly noticed, the court granted the Bureau's 388 petition and scheduled a 366.26 hearing for March 27, 2020. Mother filed this petition and requested a stay of the proceedings "if this petition is not resolved by [March 27]."
DISCUSSION
Mother contends the juvenile court erred in granting the Bureau's 388 petition because the Bureau failed to show it was in the children's best interest to change the prior order. We disagree.
Section 388 provides in part: "Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . 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." At a hearing on a 388 motion, the burden of proof is on the moving party to show by a preponderance of the evidence that there is new evidence or changed circumstances and that modification is in the best interest of the child. (§ 388; In re Stephanie M. (1994) 7 Cal.4th 295, 317.) We review the juvenile court's decision for an abuse of discretion. (Id. at p. 318.)
Mother mistakenly asserts the burden of proof is clear and convincing evidence.
"In any custody determination, a primary consideration in determining the child's best interests is the goal of assuring stability and continuity. [Citation.] 'When custody continues over a significant period, the child's 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.' [Citation.]" (Id. at p. 317.) "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.]" (Ibid.) "A court hearing a [388 petition] 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." (Ibid.)
Mother does not dispute that the guardian's request to adopt M.J. and Z.J. constituted a sufficient change of circumstances. (Citing In re Heraclio A. (1996) 42 Cal.App.4th 569, 578 [the fact that a caretaker seeks a more permanent placement satisfies the changed circumstances prong of section 388].) She argues, however, that the juvenile court's best interest finding was not supported by the evidence because "mother was bonded with her children and throughout the dependency proceeding interacted well with them, they enjoyed her company, and there was a loving relationship." Noting that it was difficult for Mother to arrange for supervised visits during the guardianship because she was required to pay for the supervision, she argues: "The court should have denied the motion and implemented a plan wherein the mother could rebuild the once loving relationship she had with her children by keeping the guardianship in place. The children could grow up knowing their mother for who she is given her mental health issues." We cannot agree.
We note Mother never challenged the order requiring her to pay for the supervised visits. Moreover, the guardian told the social worker that because Mother "was not paying for the supervised visits," the guardian would supervise the visits herself. Thus, it appears Mother's failure or inability to pay for the supervision did not prevent her from seeing the children. --------
While Mother and her children loved each other, there was uncontroverted evidence throughout the proceedings that Mother was not capable of providing M.J. and Z.J. with a safe and sanitary home. Both of the children suffered anxiety and trauma from having lived with Mother and said they never wanted to return. At the time of the hearing on the 388 petition, they had lived with their guardian for almost four years, nearly half of their lives. They were thriving in their guardian's home and wanted to be adopted. Mother testified she had not seen the children since December 2017. Her home was still unsanitary when the social worker visited in late 2018 and early 2019. In light of these factors, the juvenile court did not abuse its discretion in granting the Bureau's 388 petition and scheduling a 366.26 hearing.
DISPOSITION
Mother's petition is denied. Her request for a stay is also denied. Our opinion is final as to this court forthwith.
/s/_________
Petrou, J. WE CONCUR: /s/_________
Fujisaki, Acting P.J. /s/_________
Jackson, J.