Filed 10/17/18 S.F. v. Superior Court CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Petitioner S.F. (Mother) contends the trial court erred in denying contested hearings on motions by her and by real party in interest San Francisco Human Services Agency (Agency), filed under Welfare and Institutions Code section 388.^[1] We deny Mother’s petition for writ of mandate.

Background^[2]

In August 2016, the Agency filed a section 300 petition as to Mother’s daughter J.J. (Minor), born September 2012. The petition alleged Mother allowed Minor and one of Minor’s older siblings to be present during a fight and placed into a stolen car without a car seat or proper restraints; the car crashed following a high speed chase with police, causing injuries to Minor including a broken nose and lacerations.

The Agency’s detention report provided further details of the incident. Mother had been with a friend, her sister, Minor, and Minor’s sibling in a parking lot in Oakland,

when the adults got into a physical fight with the sister’s boyfriend. When police arrived, Mother walked away and her sister and friend took the children into a stolen car driven by a stranger, who led the police on a high-speed chase. The car crashed into two vehicles, including a police vehicle, and flipped under a cement truck. Minor was taken to the hospital and her sibling suffered severe injuries.

The Agency’s September 2016 Jurisdiction/Disposition report recommended that

Minor be declared a dependent and that Mother be bypassed for reunification services under section 361.5, subdivision (b)(10).^[3] The report set forth the details of Mother’s fight and the car crash that injured Minor. It also disclosed that Mother was not supposed to have Minor’s sibling in her care at the time; the sibling was out of Mother’s custody due to Mother’s failure to reunify with her in prior proceedings, but the sibling’s guardian had allowed her to visit with her father, who improperly let her visit with Mother.

The September 2016 report also set forth Mother’s “extensive child welfare history.” Mother had failed to reunify with four of Minor’s siblings (including the one involved in the car crash), and reunification services were terminated by the court in April 2011. A 2009 status report advised of a psychological evaluation indicating that

Mother displayed signs of depression, evidence of anxiety disorder, and symptoms related to a personality disorder, including “high anger, irritability, uncooperativeness,

externalization of blame, and poor insight.” In the present dependency case, Mother denied suffering from any mental health issue and claimed she did not benefit from therapy. The social worker noted, however, that Mother had failed to participate consistently in therapy and continued to appear depressed and unable to manage her emotions. Mother was having trouble finding housing and employment, and she had “failed to implement the tools that she learned with regards to ensuring her children’s safety.”

At the time of the September 2016 report, Mother had supervised visits with Minor twice a week. Minor’s foster mother reported that Minor had “a very difficult time transitioning back to the normal routine” after visits with Mother.

In October 2016, the juvenile court found true the allegations of an amended petition and continued the matter for a contested dispositional hearing. After that hearing in November, the court declared Minor a dependent, removed her from Mother’s custody, and bypassed reunification services under section 361.5, subdivision (b)(10). The court also set a section 366.26 hearing for March 2017. This court denied Mother’s petition challenging the bypass of reunification services. (S.F. v. Superior Court (Feb. 27, 2017, A149933) [nonpub. opn.].)

The Agency’s report for the section 366.26 hearing recommended that Minor remain in foster care with a permanent plan of legal guardianship. Minor’s maternal grandfather was in the placement approval process. The report stated, “[Minor] has a strong bond with [Mother]. . . . She is always happy and looks forward to visiting with [Mother].” Minor’s foster mother continued to report that Minor had a difficult time transitioning back after visits with Mother.

In a May 15, 2017, addendum report, prior to the continued section 366.26 hearing, the Agency recommended that Mother’s visits be reduced to once a month, because “it is confusing for [Minor] to see [Mother] twice a week if there is no reunification plan.” Also, Mother “smells strongly of marijuana when she visits,” and she continued to bring sugary snacks and drinks despite repeated requests that she bring healthy snacks. Mother alleged Minor was being physically abused and underfed in her foster home, but Minor reported she felt safe and had enough to eat. Minor did not appear malnourished, and there were no signs of physical abuse.

At the May 16, 2017, section 366.26 hearing, the juvenile court ordered that Minor remain in her foster care placement with a permanent plan of legal guardianship. The court set a six-month review hearing for November. The court ordered an incremental decrease in visitation, to once a week for one month, then twice a month for one month, and then to monthly visits thereafter. This court affirmed Mother’s challenge to the reduction of her visitation without a contested hearing. (In re J.J. (Feb. 20, 2018, A151326) [nonpub. opn.].)

In July 2017, after a contested hearing, the juvenile court issued a five-year restraining order protecting one of the Agency’s social workers from Mother, based on allegations that Mother had threatened to kill her and had slapped the worker’s phone out of her hands.

In a report prepared for a November 14, 2017 review hearing, the Agency continued to recommend a foster care placement, with a goal of legal guardianship with the maternal grandfather. Minor could not yet be placed with her grandfather because it was necessary to create a safety plan setting boundaries with Mother. Mother had missed her monthly visits with Minor in August and September. According to the report, Minor’s “caregiver report[ed] that [Minor’s] behavior h[ad] improved” due to the missed visits, because Minor “tends to act out after visiting with” Mother. Minor had been in her current placement since October 2016. The Agency noted that two of Minor’s siblings were also current dependents. On December 12, the juvenile court ordered continued foster care and set a six-month review hearing for May 2018.

In an April 2018 review report, the Agency indicated there were problems approving maternal grandfather for placement, due to his lack of cooperation in resolving certain matters. Minor stated she wanted to stay with her current caregiver, with visitation with Mother and her grandfather. Following a May 22 contested six month review hearing, the juvenile court agreed with the Agency’s recommendation not to place Minor with the maternal grandfather.[4] The Agency requested that the court set the matter for a section 366.26 hearing, but the court and counsel ultimately concluded the Agency should make the request in a section 388 motion.

On June 11, 2018, the Agency filed a section 388 motion requesting the scheduling of a section 366.26 hearing to modify the permanent plan from foster care to a guardianship with Minor’s current caretaker.[5] The juvenile court determined Minor’s best interest may be promoted by the request and scheduled a hearing for June 26, which was continued to July 17. On the morning of July 17, Mother filed her own section 388 motion, requesting six months of reunification services and increased and unsupervised visitation. Mother alleged changed circumstances because her two older daughters had been returned to her custody with family maintenance services.

On July 17, 2018, the juvenile court held a hearing on the Agency’s section 388 motion. Mother’s counsel argued that her section 388 motion should be heard before any section 366.26 hearing. The Agency’s counsel argued Mother was required to make an offer of proof to support her objection to setting the section 366.26 hearing. Mother argued, based on the allegations in her section 388 motion, that her circumstances had changed and she was now prepared to pursue reunification. The trial court set a section 366.26 hearing for November 14, observing that Mother would be able to litigate the merits at the hearing. The court denied Mother’s section 388 motion, concluding she had failed to make a sufficient preliminary showing the requested change would be in Minor’s best interest.[6]

On September 10, 2018, Mother filed in this court a petition for writ of mandate (Petition) directing the juvenile court to vacate its July 17 orders. On September 21, the Agency responded to the Petition.

Discussion

“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 evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child. [Citation.] A parent need only make a prima facie showing of these elements to trigger the right to a hearing on a section 388 petition and the petition should be liberally construed in favor of granting a hearing to consider the parent’s request. [Citation.] [¶] However, if the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. [Citations.] The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition.” (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) We review the juvenile court’s determination for abuse of discretion. (In re Ramone R. (2005) 132 Cal.App.4th 1339, 1348.)

At the outset, we conclude the juvenile court did not abuse its discretion in summarily denying Mother’s section 388 motion due to lack of a showing the proposed change would promote Minor’s best interests. “On the eve of a section 366.26 hearing, the child’s interest in stability is the court’s foremost concern, outweighing the parent’s interest in reunification. Thus, a section 388 petition seeking reinstatement (or, in this case, initiation) of reunification services must be directed at the best interest of the child.” (In re Ramone R., supra, 132 Cal.App.4th at pp. 1348–1349.) Mother’s section 388 motion asserted that Minor “will benefit from developing a more normal relationship with her siblings now that they are residing in [Mother’s] home as a family unit, and will benefit from having the chance to try to live with her mother and siblings as a family.” In her Petition, Mother argues only “the record reflects that [Mother] and [Minor] have consistently had a loving, strong bond and continued visitation.” However, Mother’s “conclusory” (Ramone R., at p. 1349) assertions were insufficient to constitute a prima facie showing, especially in light of the evidence that Minor was doing well in her current placement and that past visitation with Mother had been disruptive. The improbability that Mother would be able to reunify with Minor at such at late stage in the proceedings also supports the juvenile court’s finding Mother failed to make a prima facie showing that granting the section 388 motion would be in Minor’s best interests.[7] Accordingly, the juvenile did not abuse its discretion in summarily denying Mother’s motion.

Mother’s other contention is that she was entitled to a hearing on the Agency’s section 388 motion. The Agency argues it was not required to file a section 388 motion at all, because “section 366.3 expressly contemplates that, absent a ‘compelling reason,’ a section 366.26 hearing will be scheduled at any post-permanency status review hearing conducted by the juvenile court pursuant to section 366.3 in a case in which the previously selected permanent plan was long-term foster care. The statutory scheme ensures that efforts are continuously being made to find a more permanent placement for a child in long-term foster care. The legislative preference is ‘for adoption over legal guardianship over long-term foster care.’ [Citation.] When the court conducts the review hearing, it ‘proceeds under a presumption that long-term foster care is inappropriate. It is obligated to act accordingly.’ ” (M.T. v. Superior Court (2009) 178 Cal.App.4th 1170, 1178.)

In effect, the Agency suggests the juvenile court erred in failing to set a section 366.26 hearing at the conclusion of the May 22, 2018 review hearing.[8] Thus, the Agency argues, it was appropriate for the court to require Mother to make an offer of proof at the July 17 hearing on the Agency’s motion. (See M.T. v. Superior Court, supra, 178 Cal.App.4th at p. 1180 [“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 post-permanency 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.”].) We agree. Absent a showing it was not in Minor’s best interests, the section 366.26 hearing should have been set at the May 22 hearing. At the July 17 hearing, it was proper for the juvenile court to schedule the section 366.26 hearing after Mother failed to make an adequate offer of proof.

Furthermore, Mother is misplaced in asserting the juvenile court “required an offer of proof to set a hearing on the Agency’s 388 motion.” The July 17 hearing was a hearing on the Agency’s motion, after the court found in a June 12 order (form JV-183) that Minor’s best interests may be promoted by the Agency’s request. Mother cites no authority that it was error for the juvenile court to grant the Agency’s section 388 motion in the absence of testimony or an Agency report specifically prepared for the hearing, or that the court was obligated to receive testimony from Mother even if it found her offer of proof inadequate.

In any event, even if Mother had a due process right to present evidence in opposition to the Agency’s section 388 motion, any error in denying her that opportunity was harmless because it is clear beyond a reasonable doubt that the court would have granted the motion. (M.T. v. Superior Court, supra, 178 Cal.App.4th at p. 1182 [“ ‘The standard of review where a parent is deprived of a due process right is whether the error was harmless beyond a reasonable doubt.’ ”].) The Agency showed changed circumstances in that the maternal grandfather was no longer being considered for placement. Minor’s need for a better permanent plan, supported by the legislative preference “ ‘for adoption over legal guardianship over long-term foster care’ ” (M.T., at p. 1178), overwhelmingly demonstrated a section 366.26 hearing would be in Minor’s best interests. The juvenile court indicated it would consider Mother’s arguments based on her changed or changing circumstances at the section 366.26 hearing. Mother’s Petition does not argue that the Agency could not have shown changed circumstances, that the Agency could not have shown scheduling a section 366.26 hearing would promote Minor’s best interests, or that Mother could have shown a “ ‘compelling reason’ ” for not scheduling a section 366.26 hearing. (M.T., at p. 1178; see id. at p. 1182 [“There is nothing in the record to indicate that petitioner had any grounds to contest the Department’s recommendation to set older sister’s and younger sister’s cases for a section 366.26 hearing.”].) Any error in failing to conduct a contested hearing was harmless beyond a reasonable doubt.

Disposition

The Petition is denied.

SIMONS, J.

We concur.

JONES, P.J.

NEEDHAM, J.

(A154876)