Opinion
A150314
08-24-2017
In re MALACHI I., a Person Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES, Plaintiff and Respondent, v. D.T., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. J12-00377)
D.T. (Mother) appeals from the juvenile court's order denying her petition for modification, filed pursuant to Welfare and Institutions Code section 388, and ordering a permanent plan of legal guardianship, pursuant to section 366.26, with respect to her son, Malachi. On appeal, Mother contends the court abused its discretion when it denied her section 388 petition without a hearing. We shall affirm the juvenile court's orders.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Many of the facts regarding events occurring before a prior section 366.26 hearing, which took place on June 4, 2015, are taken from our prior nonpublished opinion in this matter, in which we denied Mother's petition for extraordinary writ, filed pursuant to California Rules of court, rule 8.452. (D.T. v. Superior Court (Apr. 3, 2015, A143935).)
In March 2012, then five-year-old Malachi was detained and the Contra Costa County Children and Family Services Bureau (Bureau) filed a section 300 petition alleging Mother had significant mental health issues that interfered with her ability to take care of Malachi. The court sustained the petition and placed Malachi in foster care.
The petition also contained allegations that Malachi's father placed him at substantial risk of harm by leaving him in Mother's care while he knew or should have known that she was psychiatrically incapable of caring for the child. Father is not a party to this appeal and facts pertaining to him will only be included to the extent they have any bearing on Mother's appeal.
The court subsequently appointed a guardian ad litem for Mother, who had been diagnosed with schizoaffective disorder. At the dispositional hearing, the court adjudged Malachi a dependent and ordered reunification services. Mother's case plan included counseling, psychotropic medication evaluation and monitoring, and therapeutic day treatment services.
Mother consistently participated in visitation, although initially, Malachi would curse and kick Mother and become uncontrollable. Mother made no attempt to correct his behavior and staff often had to redirect Mother to focus on Malachi during visits and not to discuss the dependency case with him. The Bureau referred Mother and Malachi for therapeutic visitation services, but the provider terminated the sessions because Mother would not actively participate in the treatment process. Mother was combative and confrontational with the Bureau and Malachi's foster family, and she called the social worker several times a day and night, and called the foster mother's teenage daughter repeatedly, and cursed at her.
By the time of the six-month status review, the social worker reported that Malachi was in a second foster home and appeared to be adjusting well. The first placement had ended because of his aggressive behavior. He was also consistently disruptive and abusive toward his kindergarten teacher and the children in his class. Malachi's behavior at visits was improving; he was better at not calling Mother names or trying to hit her. Mother persisted with erratic and disturbing behavior, including accusing the Bureau of misconduct. During visits, she frequently had to be redirected to focus on Malachi. She repeatedly asked him about sexual molestation and homosexuality.
The social worker believed Mother had made some progress with her case plan, but she continued to display paranoid behavior and her judgment was severely impaired. She had not developed any insight, nor did she take any responsibility for Malachi being detained. At the six-month status review hearing, the court followed the Bureau's recommendation to provide Mother with six more months of reunification services.
In its report for the 12-month status review, the Bureau recommended that reunification services be terminated and the matter be set for a section 366.26 hearing. Although Mother remained medication compliant and had made efforts to work on her treatment goals, she continued to feel she had done nothing to put Malachi at risk. She also continued to behave erratically at visits. At the 12-month review hearing, the court continued reunification services for six more months.
In its report for the 18-month status review, the Bureau again recommended terminating services and also recommended a permanent plan of long-term foster care for Malachi. Mother continued to visit consistently, but Malachi was still acting out by cursing and hitting her. Mother was unable to control his behavior and made little effort to do so. Despite engaging in her mental health services, Mother continued to lack insight into the issues leading to Malachi's detention, and her mental health was still of great concern. At the October 28, 2013, 18-month status review hearing, the court found that the conditions prompting dependency remained unchanged, and terminated reunification services. The court ordered that Malachi remain in long-term foster care.
In the report for the permanent plan review hearing, the Bureau recommended continuing the plan of long-term foster care for Malachi. Its report indicated that Malachi was doing well in his placement and was responding well to the consistency and structure his caregiver was providing. Mother continued to visit Malachi, but still displayed a lack of ability to appropriately interact with him. At the April 2014 hearing, the court followed the Bureau's recommendations and continued the plan of long-term foster care for Malachi.
In its report for the next review hearing, set for October 2014, the social worker expressed concern about Mother's mental health. For example, she frequently left repeated voicemail messages for the social worker expressing confusion about why Malachi was removed from her care; the messages would eventually "decompensate into disconnected tangential iterations." The Bureau continued to believe Mother was incapable of providing a safe and stable home for Malachi and recommended continuing the plan of long-term foster care. Malachi was thriving socially and academically. His caregiver had expressed interest in assuming legal guardianship of Malachi, and the court continued the matter, requesting the Bureau to address the caregiver's willingness to provide permanency.
In a memorandum for the continued hearing, the social worker confirmed that the caregiver wanted to pursue legal guardianship and therefore recommended that a section 366.26 hearing be set to change Malachi's permanent plan to legal guardianship. Mother objected and requested a contested hearing.
At the contested hearing, on January 5, 2015, Mother's counsel made an oral section 388 request to change a court order, seeking to reinstate family reunification services and grant her an additional six months of services. The court found that the evidence did not support reinstating services, denied the section 388 petition, and set a section 366.26 hearing.
Mother subsequently filed a petition for extraordinary writ, contending the court abused its discretion in denying her section 388 petition because she had established both changed circumstances and that granting her additional services would be in Malachi's best interest. She also claimed that she had not been offered reasonable services geared toward her mental health condition. In a nonpublished opinion, this court found that the juvenile court had not abused its discretion in denying the section 388 petition, and further found that reasonable services had been provided. (D.T. v. Superior Court, supra, A143935 [nonpub. opn.].)
In her June 4, 2015 report for the section 366.26 hearing, the social worker recommended a plan of long-term foster care. The social worker reported that Malachi's caregiver had expressed concerns about the financial and legal ramifications of legal guardianship or adoption and, after meeting with the adoptions social worker, decided she was no longer interested in pursuing either option. She was concerned about being held financially or legally responsible for Malachi's potentially destructive behavior. However, she remained willing to continue to care for Malachi under a plan of long-term foster care. The social worker described Malachi as comfortable and happy in his placement, with an attachment to the caregiver.
Malachi, now eight years old, was doing very well in school academically, but he still had behavior issues, which were being addressed in weekly therapy. His teacher reported that there had been improvements in the degree and frequency of his destructiveness and aggression. Malachi's therapist reported that he had seen Malachi "just beginning to stabilize over the last year," which he attributed "to the caregiver's ability to provide consistent structure as well as consequences for behavior at home." The therapist worried that the improvements were "tenuous and could be disrupted with any major changes in his life."
Mother continued to visit at least once a month with Malachi. The visits were "generally very positive" and much less chaotic than they were initially.
At the June 4, 2015 section 366.26 hearing, the court followed the Bureau's recommendation and ordered the permanent plan of long term foster care. The court also continued the order of a minimum of once per month visitation, but also directed the Bureau and Malachi's counsel to consult with Malachi's therapist to determine whether increased visits would be beneficial to Malachi.
In a report prepared in November 2015, for the pending status review hearing, the social worker reported that Mother was participating in twice-monthly supervised visits with Malachi. She continued to lack insight into the reasons for Malachi's removal, stating that she did not understand why Malachi could not be returned to her care since she had never harmed him in any way. Malachi continued to do well in his foster home, with its consistent structure. Although Malachi's behaviors at school had improved, he still could be disruptive and aggressive, especially towards his teachers. The Bureau recommended continuing Malachi in long-term foster care. At the January 20, 2016 status review hearing, the court adopted the Bureau's recommendations, and continued Malachi in long-term foster care.
In a report prepared for the next status review hearing, the social worker reported that it was apparent that Malachi felt safe in his placement, as evidenced by his progress, both academically and socially. In addition, the caregiver had now agreed to become Malachi's legal guardian. The Bureau therefore recommended that Malachi remain in long-term foster care, but that a section 366.26 hearing be set.
The social worker further reported that Malachi was now in the third grade where he was working at grade level except in reading, where he was above grade level. Regarding visitation, Mother was "loving with Malachi during her visits, but her behavior is not always appropriate and she often does not engage with him during visits, preferring to 'sit and watch him play.' " Mother had requested unsupervised visits with Malachi, but the Bureau could not support that due to her repeated inappropriate behavior during visits, which included talking about the dependency case with Malachi, criticizing his foster mother, a focus on her needs instead of Malachi's, and her frequent failure to interact with Malachi.
At the June 30, 2016 status review hearing, the court set a section 366.26 hearing for October 24, 2016. It also set a contested hearing regarding the Bureau's request to reduce visitation to once per month.
At a September 12, 2016 hearing on visitation, the court maintained the supervised visitation order of one hour, two times per month. At the hearing, Malachi's counsel stated that she had seen Malachi on August 15 and that he was "doing exceptionally well." She explained what legal guardianship is "and was actually surprised to see how relieved he was about that. He's apparently been having quite a bit of anxiety because there are other foster kids coming in and out of the home changing placements. . . . He's ecstatic about permanence." Malachi did, however, express to his attorney that he enjoyed his visits with both of his parents and would like them to continue. Counsel therefore supported the continuation of twice monthly visits.
On October 20, 2016, four days before the scheduled section 366.26 hearing, Mother filed a section 388 petition for modification, requesting "an additional period of reunification services." Mother attached a number of documents to her petition, which she believed "demonstrate that she is responsible for her own day to day needs, that she is able and willing to provide a home for Malachi, that her mental health needs have not interfered with her ability to care for herself and provide the necessities of life needed to maintain her household." Most of the documents related to Mother's financial stability, including some showing housing, utilities, and grocery purchase information, which she believed demonstrated her "capacity to function on a day to day level." There was also a letter from Mother's therapist, stating that Mother had been under her care and that Mother "has been stable in terms of acute symptoms with regard to her mental health condition & participating in her treatment services plan. As far as this Clinician is aware she has been compliant with her medications."
Mother also explained how the proposed change was in Malachi's best interest: "The child has a strong bond with his mother as demonstrated by his statements that there is too long a time between the visits with his mother. Mother has been consistent in maintaining contact with the minor through visits and calls. He knows his mother and looks forward to having visits with her[;] thus it would be in his best interest to grant mother an opportunity to reunification with him."
At the October 24, 2016 hearing, the court denied Mother's section 388 petition without prejudice to give her the opportunity to provide additional documentation related to her mental health, which was "at the core and center of this dependency proceeding." The court also continued the hearing to allow the caregiver to work with the Bureau to ascertain the changes in funding she would receive if she were to become Malachi's legal guardian.
In a subsequent memorandum, the social worker explained that there had previously been some uncertainty about what funding the caregiver would qualify for if she became Malachi's legal guardian. She had since learned that she would continue to receive the basic foster care funding, but would no longer be eligible for certain other funding she had been receiving. Upon learning this information, the caregiver stated that she still wanted to become Malachi's legal guardian.
In a report prepared for the continued section 366.26 hearing, the Bureau recommended that a guardianship be established and that the dependency be vacated and dismissed. Malachi having been placed in his current foster home for almost four years and the caregiver was now willing to maintain legal guardianship until Malachi reached age 18, while allowing him to still have a relationship with his parents through visitation and phone contact.
The social worker described the caregiver as having successfully raised her own young adult son, and having been a foster parent for 17 years. In the four years Malachi had been in her home, she had been able to provide him with a loving, nurturing environment in which he was thriving. She had advocated on his behalf and efficiently addressed his needs. Malachi also had become close to her son and her extended family. Malachi presented as a happy and talkative nine-year-old boy. He told the social worker that he understood the recommendation for legal guardianship and that while he enjoyed visiting with his parents, he "feels good" about staying with his caregiver.
The social worker further stated that Mother had stated that she still did not understand why Malachi was removed from her care and why he had not been returned to her. The social worker believed that both parents loved their son and had shown a commitment to him through consistent visitation. She believed it was important that they continue to be involved in his life, but also believed that lack of insight and continued mental health concerns affected their ability to provide overall care for him.
The continued section 366.26 hearing took place on December 12, 2016. At the start of the hearing, Mother's counsel made an oral section 388 petition, requesting that the court return Malachi to Mother's care. The November 14, 2016 letter, from Mother's psychiatrist, stated that Mother had been in mental health treatment under her care for schizoaffective disorder since March 8, 2013. She had been engaged in her treatment, had attended appointments and therapy and/or groups as recommended, and had touched base with her case manager and doctor if appointments or groups were missed. She had also been medication compliant.
The court stated that the new letter did not affect its analysis in terms of its denial of the prior petition, and it found no change in circumstance warranting a hearing on the section 388 petition.
Mother's counsel then asked the court to deny the guardianship to give Mother additional time to attempt to reunify with Malachi. She also asked that visitation remain at two visits a month.
Malachi's counsel submitted on the recommendation, noting that Malachi's behavior was much improved; though he still had issues at times when he was feeling frustrated, he was "maturing and doing quite well at school." His counsel also noted that he had previously been afraid of being removed from the caregiver's home and was "thrilled with the permanency of the situation that he gets to remain there." Finally, counsel stated that she believed the caregiver would permit increased visitation and phone calls if Malachi wanted that.
The court adopted the Bureau's recommendations to appoint the caregiver as Malachi's legal guardian, and ordered visits at a minimum of one time per month for two hours.
On January 11, 2017, Mother filed a notice of appeal from the denial of her section 388 petition, establishment of the legal guardianship, and reduction of visitation.
DISCUSSION
Mother contends the juvenile court abused its discretion when it denied her section 388 petition for modification without a hearing.
Under section 388, "[a]ny 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. . . ." (§ 388, subd. (a)(1).) "If it appears that the best interests of the child . . . may be promoted by the proposed change of order," the juvenile court "shall" order a hearing. (§ 388, subd. (d).)
To trigger the right to a hearing on a section 388 petition, a parent need only make a prima facie showing that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child. (In re Mary G. (2007) 151 Cal.App.4th 184, 205 (Mary G.).) " '[T]he 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.' [Citation.]" (Ibid.; accord, In re Angel B. (2002) 97 Cal.App.4th 454, 461 [court may deny petition without a hearing "only if the petition fails to state a change of circumstance or new evidence that even might require a change of order or termination of jurisdiction"].)
"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.] A court hearing a motion for change of placement 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." (In re Stephanie M. (1994) 7 Cal.4th 295, 317, quoting In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
We review a summary denial of a section 388 petition without a hearing for an abuse of discretion. (In re A.S. (2009) 180 Cal.App.4th 351, 358.)
Here, because Mother failed to make a prima facie showing either of changed circumstances or that the proposed change would promote Malachi's best interests, the juvenile court did not abuse its discretion when it denied Mother's section 388 petition without a hearing. (See Mary G., supra, 151 Cal.App.4th at p. 205.)
The alleged changed circumstances involved only (1) Mother's financial stability, which was not an issue in the case, and (2) Mother's ongoing participation in mental health treatment and her medication compliance, which was not new evidence and did not show changed circumstances. The social worker had reported repeatedly, and as early as 2012, that Mother was medication compliant and actively engaged in her mental health treatment. The issues in this case involved Mother's ongoing mental health issues, which persisted despite her engagement in services, and her lack of insight into the issues leading to Malachi's detention. Hence the court reasonably concluded Mother had failed to make a prima facie showing of changed circumstances warranting a hearing on her section 388 petition. (See Mary G., supra, 151 Cal.App.4th at p. 205.)
Moreover, even had Mother made a prima facie showing of changed circumstances, we conclude the juvenile court properly found she failed to make a prima facie showing any changed circumstance "even might" demonstrate that the petition should be granted because returning Malachi to her care would be in his best interest. (In re Angel B., supra, 97 Cal.App.4th at p 461; see Mary G., supra, 151 Cal.App.4th at p. 205.) Mother points out that she consistently visited Malachi throughout the dependency, that visitation had improved over the years, and that Malachi enjoyed and wanted to continue visiting with Mother. There is no doubt that Mother loves her son and has made efforts to maintain a relationship with him, and that Malachi loves and desires to continue seeing her. However, the evidence overwhelmingly shows that his best interest will be served by a legal guardianship with his current caregiver, in whose care he has found security and a sense of belonging, who has remained committed to him for over four years, and who has helped him to flourish academically and become much more emotionally stable. As minor's counsel stated, Malachi himself was "thrilled with the permanency of the situation," that is, with his caregiver becoming his legal guardian. (See In re Stephanie M., supra, 7 Cal.4th at p. 317 [following termination of reunification services, focus shifts to child's need for permanency and stability].)
Mother also points out she had completed the 11-week Proud Parenting Program in October 2015, and a program facilitator had described her as "a model participant" who "matured and grew emotionally during this course." Completion of this program some nine months before the court ruled on her section 388 petition does not support a finding of either changed circumstances or that it would be in Malachi's best interest to return to her care.
The evidence does show, however, that visitation, while much improved, was still at times problematic as when Mother discussed inappropriate matters with or in front of Malachi. For example, in her October 2016 report, the social worker described a visit in August 2016, in which Mother "mumbled" something to Malachi, to which he responded that he liked living with his current caregiver. Mother then said, " 'but we miss you' " and then called him a liar because he had given her a sticker that said, "you rule," and " '[i]f I [Mother] ruled, you'd be home with me.' " As Malachi continued to play with his toys, Mother said, " 'I miss you,' " to which he responded, " 'I miss you guys too.' " As the Bureau points out, this interaction reflects both Mother's insensitivity to Malachi's feelings and his growing ability to avoid having an emotional reaction to her provocative statements. --------
In sum, the court did not abuse its discretion in denying Mother's section 388 petition without a hearing given that she had neither made a prima facie showing of changed circumstances or that granting the petition would be in Malachi's best interests. (See Mary G., supra, 151 Cal.App.4th at p. 205.)
DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Miller, J.