Opinion
A150823
04-26-2018
In re I.T et al., Persons Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, Plaintiff and Respondent, v. B.M., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J15-00671, J15-00672) MEMORANDUM OPINION
We resolve this case by a memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1.
Appellant B.M. (Mother) appeals the juvenile court's order denying her petition under Welfare and Institutions Code section 388 and the termination of her parental rights under section 366.26. Respondent concedes the juvenile court applied the incorrect evidentiary standard to the section 388 petition at the combined section 388 and section 366.26 hearing. (See In re L.S. (2014) 230 Cal.App.4th 1183, 1194.) Respondent further concedes that upon this record the error cannot be deemed harmless and the matter must be remanded to the juvenile court. We agree.
All subsequent references are to the Welfare and Institutions Code unless otherwise identified.
The Contra Costa County Children and Family Services Bureau (CFS) filed two juvenile dependency petitions under section 300 for then five-year-old I.T. and three-year-old N.T. after Mother left them unattended in a car with drug paraphernalia. Both children were wearing dirty clothes and had not bathed in several days. N.T. was soiled and I.T. had no underwear or pants. Mother admitted to using methamphetamine that morning.
At the jurisdiction hearing, Mother pleaded no contest and the court took jurisdiction over the children. CFS recommended the court offer no reunification services to Mother. Mother had failed to reunify with her two older children due to her life-long substance abuse problems, domestic violence, and mental health issues. Mother had failed to enter substance abuse treatment. At the disposition hearing, the court denied reunification services under section 361.5, subdivision (b)(11) due to removal of Mother's two older children.
At the six-month review hearing, the court suspended Mother's visits with the children because she was "under the influence of something" at the hearing and the court was concerned about her inappropriate behavior during visits. Between the six- and twelve-month review hearing, Mother was incarcerated. Mother submitted at the twelve-month review hearing and the court scheduled the section 366.26 hearing date.
At a hearing on February 10, 2017, the court again suspended Mother's visitation with the children because Mother went to the social worker's home at night, stated she knew where I.T. was placed, and threated the social worker.
On the day of the section 366.26 hearing, Mother filed a section 388 petition for modification, requesting reunification services and reinstatement of visitation. In considering the section 388 petition, the court stated that it had made a prior finding by clear and convincing evidence that reunification services were not in the best interests of the children under section 361.5, subdivision (b)(11). The court stated that if it were to grant the petition, it would now have to make a finding by clear and convincing evidence that reunification services were in the children's best interest. Mother testified to her changed circumstances including online outpatient services for addiction, parenting courses, and anger management. Mother was no longer homeless, she was employed, and she claimed to be free of drugs and alcohol for eight months. The social worker testified the online courses were not approved by CFS.
The juvenile court found Mother's circumstances were changing but had not changed. The court found that Mother could have entered residential drug treatment and failed to do so. The court stated: "there is no change in circumstance that would warrant to the Court granting her request and ordering reunification services under these circumstances and given her history in her family in terms of her loss of other children through her issues of substance abuse and neglect." The court further stated it did not want to keep the children "in a state of foster care without permanency." The court terminated Mother's parental rights.
"Section 388 allows interested parties to petition for a hearing to change or set aside a prior court order on the grounds of 'change of circumstances or new evidence.' (§ 388, subd. (a)(1).) The burden of proof at any such hearing is on the moving party to show by a preponderance of the evidence both that there are changed circumstances or new evidence and that also a change in court order would be in the best interest of the child. (§ 388, subd. (b); [citations]." (In re D.B. (2013) 217 Cal.App.4th 1080, 1089, fn. omitted.) A party petitioning to modify a bypass of reunification services under section 361.5, subdivisions (b) (4), (5), or (6) must show by clear and convincing evidence it is in the best interests of the child. (§ 388, subd. (a)(2).)
California Rules of Court, rule 5.570, subdivision (h) provides: "(C) If the request is to modify an order that reunification services were not ordered under section 361.5(b)(4), (5), or (6) or to modify any orders related to custody or visitation of the child for whom reunification services were not ordered under section 361.5(b)(4), (5), or (6), the petitioner must show by clear and convincing evidence that the proposed change is in the best interests of the child. [¶] (D) All other requests require a preponderance of the evidence to show that the child's welfare requires such a modification." (Cal. Rules of Court, rule 5.570(h)(1)(C) & (D).)
Both parties cite to In re L.S., supra, 230 Cal.App.4th 1183. In In re L.S., the parents argued the court applied the wrong burden of proof at their section 388 hearing. (Id. at pp. 1187-1188.) The court bypassed reunification services to the mother under section 361.5, subdivision (b)(11) because parental rights were terminated for a sibling. (Id. at p. 1189.) Two days before the scheduled section 366.26 hearing, the parents filed section 388 petitions seeking reunification services. (Ibid.) The court held a combined section 388 and section 366.26 hearing and applied a clear and convincing standard of proof to the modification request because that was the standard of proof applied to the bypass order. (Id. at p. 1190.) The Court of Appeal found this was error:
"In this case, the parents' petitions for modification sought to modify the order bypassing services which was based on section 361.5 subdivision[s] (b)(11) and (13). Section 388 does not apply a heightened burden of proof to petitions to modify bypass orders based on these subdivisions." (In re L.S., supra, 230 Cal.App.4th at p. 1194.) The court held "[b]ecause section 388 did not permit application of the clear and convincing burden of proof to the parents' petitions for modification, the juvenile court abused its discretion by requiring them to meet the higher burden of proof in order to modify the bypass order." (Ibid.)
The appellate court further held that the error was not harmless. (In re L.S., supra, 230 Cal.App.4th at p. 1194.) The court stated it was not a case where the juvenile court merely misspoke when stating the burden of proof or where there was no evidence of change of circumstances. (Ibid.) "It is for the juvenile court, not this court, to assess credibility and weigh the evidence using the proper burden of proof when exercising its discretion to grant or deny the petitions. [Citations.]" (Ibid.) The court remanded to the juvenile court to apply the proper burden of proof to the petitions for modification. (Id. at p. 1201.)
We note this case is distinguishable from this district's decision in In re A.M. (2013) 217 Cal.App.4th 1067, where the court ordered a bypass of reunification services pursuant to section 361.5, subdivisions (b)(5) and (b)(6). (In re A.M., at p. 1069.) Section 388 was amended after the hearing in the case to explicitly state the court must apply section 361.5, subdivision (c) to petitions under section 388. (In re A.M., at p. 1076.) Subdivision (c) requires the court to hold a hearing and apply a clear and convincing standard. (§ 361.5, subd. (c).) Unlike subdivisions (b)(5) and (b)(6), section 388 does not apply a heightened standard of proof to subdivision (b)(11).
Both parties agree that pursuant to In re L.S. this case must be remanded to the juvenile court. Like In re L.S., the court here bypassed services pursuant to section 361.5, subdivision (b)(11) and the juvenile court incorrectly applied the clear and convincing standard to Mother's section 388 petition. Based on the record before us, we cannot conclude there was no evidence of a change of circumstances or that the juvenile court misspoke in applying the heightened standard. (In re L.S., supra, 230 Cal.App.4th at p. 1194.) The juvenile court stated that to grant the section 388 petition, it would have to make a finding by clear and convincing evidence that reunification services were in the children's best interest.
In her opening brief, Mother also argues this court should vacate the juvenile court's decision to terminate parental rights because the parental benefit exception in section 366.26, subdivision (c)(1)(B) applies. CFS addresses the issue in a single sentence in its letter to the court arguing the juvenile court's findings are supported by substantial evidence, but then stating the case must be remanded. Under these circumstances and given the combined nature of the hearing before the juvenile court, we believe a remand of the entire matter is necessary.
We remand the order on the section 388 petition to the juvenile court to apply the correct burden of proof at a combined section 388 and section 366.26 hearing. Depending on the court's ruling on the petition for modification, the court shall hold such further proceedings as are appropriate.
/s/_________
Smith, J. We concur: /s/_________
Reardon, J. /s/_________
Streeter, Acting P. J.
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------