Filed 4/27/22 J.C. v. Superior Court CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

J.C. (Mother) and M.C. (Father) petition this court for extraordinary relief of a juvenile court order setting a hearing under Welfare and Institutions Code[1] section 366.26 (.26 hearing) for minors D.H., Jai.H., and Jay.H. They contend there was insufficient evidence to support the juvenile court’s order finding changed circumstances to support a new .26 hearing. We disagree and deny both the petitions and the petitioners’ stay request.

I.

BACKGROUND

D.H. reported physical and sexual abuse by Father,[2] following which Mother agreed to a safety plan that would prevent Father from having access to the minors. The Sonoma County Human Services Department (Department) removed Jay.H., Jai.H., and D.H. from the family home after Mother broke the safety plan by allowing Father access to the minors on multiple occasions, questioning D.H. about the sexual abuse in front of Father, and sharing information with Father about the pending criminal investigation. The minors were placed with their maternal great-aunt and her husband. The Department then filed a dependency petition as to each of the three minors. The petition alleged D.H. was sexually abused by Father, the other minors were occasionally present when this abuse occurred, and Mother failed to protect the minors.

In the jurisdiction/disposition reports, the Department requested family reunification services for Mother, and family reunification services as to Jay.H. and Jai.H. for Father. Both parents expressed a desire to have the children returned to their care. At that time, D.H. stated she would like to return to Mother’s home without Father present and feels happy when she gets to see Mother. Jai.H. likewise stated he would like to return home and misses seeing Father.

The court found the allegations in the petition true, declared the minors dependents of the court, and affirmed their placement in the maternal great-aunt’s home. It ordered the Department to provide reunification services to both parents for Jai.H. and Jay.H., and reunifications services to Mother for D.H. The court identified the need for the parents to “keep the children free from exposure to sexual abuse and recognize the signs and symptoms of sexual abuse to help prevent any further sexual trauma,” and for Mother to “repair her relationship with [D.H.] to help facilitate emotional safety and trust in her home.”

At the six-month review, the Department requested services be terminated as to Father, albeit with ongoing supervised visits. The report noted Father only attended one therapy session before refusing to engage in any further sessions or have the Department track his progress. In addition, the Department speculated that Mother and Father may still be seeing each other because Father’s vehicle was photographed in front of Mother’s home. Jai.H. stated he wanted to live with Mother and siblings, visit family, and see Father, but he did not want Father to live with them.

The Department recommended services be continued as to Mother. Its six-month report noted Mother was participating in supervised visitation and telephone calls with the minors. She also was attending therapy and completed the Verity Support Group for parents of children who have experienced the trauma of sexual abuse. However, the report noted D.H. and Jai.H. were becoming upset with Mother for not following certain rules regarding visitation and continued to feel a lack of trust and safety in Mother’s care. D.H. stated she would like to return to live with her Mother and siblings, but is scared about being exposed to Father and is worried that Mother is still seeing Father. D.H. stated if she could not live with Mother, she would like to live with her maternal great-aunt or grandmother.

In an addendum report, the Department reported Jai.H. disclosed to his caregiver that Father sexually abused him and Jay.H. D.H. continued to express a strong fear of Father and stated she would like to remain with her maternal great-aunt. Jai.H. also expressed a fear of Father, but reported wanting to return home to live with Mother and his siblings. The court ordered reunification services terminated as to Father.

In advance of the 12-month review, the Department filed a status review report again recommending services be continued for Mother. It also recommended a trial home visit be authorized. The report noted Mother attended and was engaged in all her reunification services, including individual therapy. D.H. also had recently informed her therapist she was “thinking of wanting to move back home with her mother,” and asked if she and Mother could start family therapy. The report noted D.H.’s relationship with Mother “continues to improve,” although D.H. was still having feelings of distrust toward her. D.H.’s therapist noted D.H. was unable to decide whether she wanted to return to live with Mother, or wait until she felt more trust toward Mother. Jai.H. likewise continued to have trust issues with Mother. The Department noted the children “want to live with their mother again, but have trust issues as to how life will be if they return home to their mother.”

In the status report prior to the 18-month review hearing, the Department recommended that reunification services be concluded as to Mother and family maintenance services be granted. D.H. stated she felt ready to start overnight visits with Mother, but was worried Father would come over and was concerned about how Mother would frequently get angry at her. Jai.H. stated he was not ready to have overnight visits with Mother. He also did not want Jay.H. to have overnight visits because he worried Father would be present and Mother would not protect Jay.H. from being hurt. Jai.H. stated he is happy staying with his maternal great-aunt and only visiting Mother. Once again, the report noted the minors “want to live with their mother again, but have trust issues as to how life will be if they return home to their mother.” The Department recommended with “great caution” that the minors should slowly transition into family maintenance over a two-month period. The court warned Mother at the hearing to “end her partying lifestyle” and “creat[e] a trusting bond with her children.”

Shortly thereafter, the Department noted two concerning instances that occurred: Mother was arrested for driving under the influence, and Jay.H. almost drowned while under Mother’s supervision. The Department noted both D.H. and Jai.H. continued to express concerns about Mother lying. Jai.H. stated he loved Mother but “ ‘if I end up living with [the maternal great-aunt and her husband] forever, and visiting mom like right now, that would be okay.’ ” Jay.H. informed the Department he “wished he could live with his mom and dad again” and “misses his family,” but also asked his maternal great-aunt if he could call her “ ‘mami.’ ” The Department subsequently filed a motion to change the court order to instead end family reunification services and set a .26 hearing to terminate parental rights.

Following a multi-day contested hearing, the court terminated reunification services for Mother. The court noted Mother was not making “significant and consistent progress” in establishing a safe home for the minors, and set a .26 hearing.

Mother subsequently sought a bonding study, which was then ordered by the court. The bonding study concluded “termination [of parental rights] would not likely negatively affect [the minors’] long-term development, relationship schemas, or mental health.” It further noted “the long-term benefits of consistency, predictability, safety, and supportiveness that would come from being adopted by their current caregivers outweigh any short-term losses.”

The Department filed two reports in advance of the .26 hearing. The Department noted D.H. expressed sadness about not going to home to live with Mother and was upset because Mother packed up all her belongings. However, D.H. stated she wanted to live with her maternal great-aunt. Jai.H. also stated he wanted to live with his maternal great-aunt and visit Mother, but still felt loyalty to his parents and confusion regarding his circumstances. The Department emphasized how Mother was unable to rebuild trust or mitigate safety concerns during the minors’ 27 months in foster care. While noting the love between the minors and Mother, the Department asserted Mother “does not have a beneficial relationship with the children that outweighs the benefits they would receive through a plan of adoption. [¶] The children have secure attachments to the potential adoptive parents, and have voiced their desire to reside permanently in their home.” The Department found the minors likely to be adopted and recommended terminating parental rights.

CASA also filed a report in advance of the .26 hearing, in which the special advocate noted the minors consider the maternal great-aunt’s house as “home and have made it known to this CASA, it is in this home they wish to stay permanently.” The special advocate recommended the children remain with the maternal aunt.

In September 2021, the court found the minors adoptable but concluded terminating Mother’s parental rights would be detrimental to the children because she had maintained regular visitation and contact, and the children would benefit from continuing the relationship. The court determined legal guardianship would be the permanent plan and appointed the maternal great-aunt and her husband as the minor’s legal guardians.

The court scheduled a six-month review following appointment of legal guardianship. In advance of that review, the Department noted the minors were happy residing with their maternal great-aunt, and enjoyed visiting with Mother, but continued to want those visits to be supervised. The Department stated it “would have preferred a more permanent plan of adoption, something both the children and the Legal Guardians have expressed as a desirable plan. However, the plan of Legal Guardianship currently appears to be working for the children, Legal Guardians and biological parents.” The Department thus recommended continued guardianship and dismissal of the dependency.

Shortly thereafter, on January 13, 2022, counsel for the minors filed a request to change the order of legal guardianship (section 388 petition). The section 388 petition stated the minors “have continued to request adoption by [the maternal great-aunt and her husband],” and requested the court set a new .26 hearing. The motion asserted Jai.H. has specifically requested “the more permanent plan of adoption” by his maternal great-aunt and her husband. D.H. also wrote a letter specifically requesting adoption. On January 20, 2022, the Department filed a memorandum in support of the minors’ section 388 petition, along with an interim report. The memorandum argued “the prior order of guardianship has not provided the stability and permanency that these children are requesting and entitled to under the law.” The Department now argued the evidence demonstrates “a guardianship is no longer in the children’s best interest, as this plan has not provided the children with a sense of stability and security over the last six months.” The memorandum further noted, “As the children grow older, they have become more aware of the current uncertainty of their future and capable of articulating their desire to be adopted.” The accompanying report also explained “the status of the visits between the children and their mother has changed,” in that the children have expressed not feeling safe during the visits based on Mother’s actions (separating the children from each other or not having the required supervision) and words (indicating to the minors that they will return to her care). The Department thus requested the court hold a new .26 hearing pursuant to either section 388 or section 366.3, subdivision (c). CASA also filed a January 20, 2022 report, in which it noted both D.H. and Jai.H. expressed a desire to be adopted by the maternal great-aunt and her husband rather than be under their care via legal guardianship. The report further stated the minors “now clearly understand the difference between adoption and guardianship,” and have expressed a preference for adoption.

Following a contested hearing, the court set a new .26 hearing. Mother and Father subsequently filed notices of intent to file writ petitions.

II.

DISCUSSION

Mother argues neither section 366.3, subdivision (c) nor section 388 supports setting a new .26 hearing. Father likewise argues the trial court erred in setting a new .26 hearing because the minors have not met their burden as to their section 388 motion and it was improper for the court to rely on section 366.3, subdivision (c). We disagree.

“If circumstances have changed since the permanency plan was ordered, the juvenile court may order a new permanency plan under section 366.26 at any subsequent hearing under section 366.3, or any party may seek a new permanency plan by a motion filed under section 388 and [California Rules of Court,] rule 5.570. [Citations.] A party may choose to [request a new permanency plan] under section 366.3 instead of submitting a petition under section 388 to avoid ‘a shouldering of the burden inherent therein of pleading and proving change of circumstances.’ ” (In re Maria Q. (2018) 28 Cal.App.5th 577, 597–598.)

A. Section 366.3

1. Application of Section 366.3, Subdivision (c)

Section 366.3, subdivision (c) provides in relevant part: “If, following the establishment of a legal guardianship, the county welfare department becomes aware of changed circumstances that indicate adoption . . . may be an appropriate plan for the child, the department shall so notify the court. The court may vacate its previous order dismissing dependency jurisdiction over the child and order that a hearing be held pursuant to Section 366.26 to determine whether adoption or continued legal guardianship is the most appropriate plan for the child.” The parents contend the statement that a court “may vacate its previous order dismissing dependency jurisdiction” indicates the subdivision only applies to cases in which dependency jurisdiction has been terminated.

“ ‘ “ ‘As in any case involving statutory interpretation, our fundamental task . . . is to determine the Legislature’s intent so as to effectuate the law’s purpose. [Citation.] We begin by examining the statute’s words, giving them a plain and commonsense meaning.’ ” ’ [Citation.] ‘[W]e consider the language of the entire scheme and related statutes, harmonizing the terms when possible.’ ” (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141; People v. Valencia (2017) 3 Cal.5th 347, 357 [“ ‘[t]he words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible’ ”].) If the language of the statute is clear and unambiguous, there is no need for judicial construction and our task is at an end. If the language is reasonably susceptible of more than one meaning, however, we may examine extrinsic aids such as the apparent purpose of the statute, the legislative history, the canons of statutory construction, and public policy. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 838.)

We do not agree with the parents’ interpretation of section 366.3, subdivision (c). “[T]o interpret a statute, we consider all of its language ‘in context’ and with reference to ‘provisions relating to the same subject’ and ‘the whole system of law of which [the statute] is a part.’ ” (Skidgel v. California Unemployment Ins. Appeals Bd. (2021) 12 Cal.5th 1, 20.) Subdivision (c) applies to proceedings “following the establishment of a legal guardianship.” (§ 366.3, subd. (c).) And section 366.3, subdivision (a)(3) provides the juvenile court “may continue jurisdiction over the child as a dependent child of the juvenile court” after establishing a legal guardianship. The establishment of a legal guardianship thus does not necessarily result in the termination of dependency jurisdiction. The parents fail to explain why those minors remaining under the jurisdiction of the court should have fewer options to reassess the validity of their permanent plan than those outside the court’s dependency jurisdiction.

Moreover, section 366.3, subdivision (b)(1) addresses certain scenarios that may arise after “the court has dismissed dependency jurisdiction following the establishment of a legal guardianship.” The Legislature thus knew how to limit certain provisions to only those circumstances in which the court has dismissed dependency jurisdiction. However, such language is notably absent from subdivision (c)—the subsequent subdivision in section 366.3. (Pieri v. City and County of San Francisco (2006) 137 Cal.App.4th 886, 892 [“ ‘In interpreting statutory language, a court must not “insert what has been omitted, or . . . omit what has been inserted.” ’ ”].) Accordingly, we do not interpret the phrase that a court “may vacate its previous order dismissing dependency jurisdiction” as limiting subdivision (c) to only those cases in which dependency jurisdiction has been terminated. Rather, a more reasonable interpretation is that the phrase expands subdivision (c) to all legal guardianships, regardless of whether the court has maintained dependency jurisdiction, terminated dependency jurisdiction, or opted to reinstate dependency jurisdiction after initially terminating it.

Our interpretation also is in accord with the general purpose of the dependency statutes. (See Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 845 [courts should select the interpretation “most consonant with the Legislature’s overarching goals”].) “ ‘The Legislature has decreed . . . that guardianship is not in the best interests of children who cannot be returned to their parents. These children can be afforded the best possible opportunity to get on with the task of growing up by placing them in the most permanent and secure alternative that can be afforded them. In decreeing adoption to be the preferred permanent plan, the Legislature recognized that “[a]lthough guardianship may be a more stable solution than foster care, it is not irrevocable and thus falls short of the secure and permanent placement intended by the legislature.” ’ ” (In re Samantha H. (2020) 49 Cal.App.5th 410, 416.)

Moreover, the two cases cited by the Department, David L. v. Superior Court (2008) 166 Cal.App.4th 387 (David L.) and In re Andrea R. (1999) 75 Cal.App.4th 1093 (Andrea R.) both illustrate courts have reconsidered legal guardianships shortly after initially ordering them as the permanent plan. In both cases, the Department recommended the court change the permanent plan to one of adoption shortly after legal guardianship was established. (David L., at p. 391 [establishing legal guardianship in Feb. 2007; the department recommended adoption as the permanent plan in Sept. 2007]; Andrea R., at p. 1100 [establishing legal guardianship in May 1997; the department recommended adoption as the permanent plan in Sept. 1997].) And in both cases the court set a new .26 hearing to consider a change in the permanent plan to adoption approximately a year after legal guardianship was established. (David L., at p. 392 [set a new .26 hearing in early 2008, to be held in Aug. 2008]; Andrea R., at pp. 1102–1103 [ordered a new .26 hearing in Apr. 1998, which was conducted in Sept. 1998].) Thus, contrary to the parents’ position, courts have reconsidered legal guardianships fairly shortly after their initial establishment.

Father further argues David L. and Andrea R. are distinguishable because neither “present facts where the issue of the parent-child bond was litigated extensively and found to apply.” However, the applicability of the parent-child bond is irrelevant to the question of whether the court should set a new .26 hearing under section 366.3, subdivision (c). While the applicability of the parent-child bond is relevant to determining the appropriate permanent plan, the court’s decision to set a new .26 hearing “adjudicates no rights . . . . The merits of that hearing remain for future determination; merely setting the hearing does not tip the scales for or against the parent on the merits.” (David L., supra, 166 Cal.App.4th at p. 394.)

2. Evidence of Changed Circumstances

Here, the record sets forth a prima facie showing of changed circumstances sufficient to support the juvenile court’s decision to set a new .26 hearing. (See David L., supra, 166 Cal.App.4th at p. 394 [“The language of section 366.3, subdivision (c), supports the prima facie standard, since the county welfare department need only ‘notify’ the juvenile court of changed circumstances, not prove them. The lower standard is also consistent with the Legislature’s preference for adoption because it more ‘readily’ facilitates consideration of that option.”].)

Undoubtedly, the minors consistently requested to remain in the custody of their maternal great-aunt and her husband. However, their prior statements about where they would like to reside is different from a specific request for adoption. Nothing in the record indicates the minors specifically requested adoption in lieu of guardianship prior to January 2022. To the contrary, as noted in the January 20, 2022 CASA report, D.H. and Jai.H. “now clearly understand the difference between adoption and guardianship,” and have expressed a preference for adoption.

In addition, the most recent reports from CASA and the Department indicate a change in the quality of the minors’ visitation with Mother. The Department indicated Mother has struggled to follow visitation rules, most notably by having unsupervised visitation with the minors. The report noted D.H. and Jai.H. are now old enough to understand when Mother is not following certain visitation rules, and it has created additional trust issues between Mother and the minors. Likewise, the Department noted it recently became aware of comments made by Mother during visitation about the minors being returned to her care in the future, which has caused confusion and stress.

Mother argues D.H.’s statement that she wants to remain with her brothers contradicts her desire to be adopted. We disagree. While the record demonstrates a “strong and positive bond” between the minors and a constant desire to remain together, that is not at odds with now wishing for adoption. To the contrary, it merely indicates a wish that the minors be adopted together. Likewise, statements in the prior Department report that guardianship “appears to be working for the children” was written prior to the Department receiving the above information regarding the visitation concerns and the minors’ desire for adoption.

In sum, the new concerns with visitation and the minors’ express desire for adoption support the juvenile court’s decision to set a new .26 hearing.

B. Section 388

Mother also argues the court was required to rule on the section 388 petition before setting a new .26 hearing under section 366.3, subdivision (c). However, she fails to cite any authority supporting her position.

As noted in David L., “[n]o modification petition [is] necessary” prior to ordering a new .26 hearing under section 366.3, subdivision (c). (David L., supra, 166 Cal.App.4th at p. 392.) The court in David L. further explained: “ ‘To the extent that appellants contend that preliminary to a new section 366.26 hearing under section 366.3, subdivision (c), there must be a separate noticed hearing upon a section 388 petition on the issue of whether there are sufficient changed circumstances to warrant setting the section 366.26 hearing in the first instance, we conclude that no appropriate authority is cited to support such a procedural requirement and the language of section 366.3, subdivision (c), does not on its face require such a judicial finding or separate evidentiary hearing.’ . . . The language of section 366.3, subdivision (c), is clear and unambiguous on its face: no section 388 petition is necessary; rather, the juvenile court ‘may’ set a new .26 hearing at its discretion.” (Id. at pp. 392–393.) “ ‘[Inasmuch] as the juvenile court is subject to the mandatory preference for adoption over legal guardianship [citation], . . . section 366.3, subdivision (c), permits the court’—unencumbered by the necessity of a modification petition—‘to more readily hold a new section 366.26 hearing to determine whether adoption or continued guardianship is the most appropriate plan.’ ” (Id. at p. 393, quoting Andrea R., supra, 75 Cal.App.4th at p. 1107.) Accordingly, the juvenile court was entitled to set a new .26 hearing pursuant to section 366.3, subdivision (c), and without considering section 388. We thus need not address the merits of the minors’ section 388 petition.

III.

DISPOSITION

Mother’s and Father’s petitions for extraordinary writ are denied on the merits. Our decision is final as to this court immediately. (Cal. Rules of Court, rules 8.450(a), 8.490(b)(2)(A).)

Margulies, Acting P. J.

WE CONCUR:

Banke, J.

East, J.*

A164458

J.C. v. Superior Court

[1] All further statutory references are to the Welfare and Institutions Code.

[2] Father is the biological parent of Jai.H. and Jay.H., and is D.H.’s stepfather.

* Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.