Filed 2/28/18 G.G. v. Superior Court CA5


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

G.G.,

Petitioner,

v.

THE SUPERIOR COURT OF MADERA COUNTY,

Respondent;

MADERA COUNTY DEPARTMENT OF SOCIAL SERVICES,

Real Party in Interest.

F076627

(Super. Ct. Nos. MJP017497, MJP017498)


OPINION

THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Thomas L. Bender, Judge.
Richard A. Ciummo & Associates and Christopher B. Dorian for Petitioner.
No appearance for Respondent.
No appearance for Real Party in Interest.
-ooOoo-
G.G. (mother) seeks an extraordinary writ from the juvenile court’s orders issued at a contested post-permanency plan review hearing (Welf. & Inst. Code, § 366.3), denying her request for reinstatement of reunification services under section 388 and setting a section 366.26 hearing to implement a permanent plan of adoption for her now nine-year-old son, Jay.R., and eight-year-old daughter, Gen.R. (collectively, the children). Mother contends the juvenile court’s decision was based strictly on the children’s preference for their foster family and must be vacated. We deny the petition.
PROCEDURAL AND FACTUAL SUMMARY
Mother has eight children and a long history of child welfare intervention, beginning, as relevant here, in April 2009 when the Los Angeles County Child Welfare Services (CWS) removed her eldest two sons and daughter, then nine-year-old Jonathan I., five-year-old Bryanna I., and eight-month-old Jay.R., after mother struck Bryanna with a belt, leaving a visible injury. In September 2009, CWS also removed newborn Gen.R. In January 2010, the juvenile court ordered family reunification services for mother and Juan R., the children’s father. The court returned Jay.R. to mother’s custody with family maintenance services in November 2010 and Gen.R. to her custody in January 2011.
Three months later, in March 2011, CWS removed the children, then two and one, from mother’s custody after she was arrested for petty theft. In December 2010, she and Juan were arrested for shoplifting. Besides mother’s criminality, CWS was concerned about an incident in which she returned Gen.R. from an overnight visit with four bruises that were not there the day before. In June 2011, the juvenile court denied the parents reunification services and set a section 366.26 hearing. From June 2011 to September 2014, the parents filed several petitions under section 388 (section 388 petitions) seeking custody of the children or reinstatement of reunification services, which the court denied. Meanwhile, the parents had three more children, Grey.R., Jal.R. and Jar.R., who were also removed from their custody.
In 2012, Steven Green, Ph.D., conducted a court-ordered psychological evaluation of mother to determine whether she could safely parent Jonathan, Bryanna, four-year-old Jay.R., three-year-old Gen.R. and her two-year-old son, Grey.R. The children were then living with their maternal grandfather. Mother reported suffering emotional, physical and sexual abuse as a child. Dr. Green opined she displayed symptoms consistent with posttraumatic stress disorder, depression, anxiety and conversion disorder and engaged in antisocial behavior, which raised concerns about her ability to parent the children. He did not believe reunification services were appropriate at that time and recommended the children remain in their grandfather’s custody.
In 2013, mother moved to Chowchilla in Madera County with Jonathan, Bryanna and Grey.R. and regained custody of Jal.R. and Jar.R. The family visited the children in Los Angeles on weekends.
In September 2014, mother filed a section 388 petition requesting services to reunify with the children. The Los Angeles County Juvenile Court granted her petition and vacated the section 366.26 hearing.
Madera County became involved in October 2014 when mother struck Bryanna in the face with a belt, causing large bruises on the right side of Bryanna’s face from her temple to her chin. Mother disclosed deep issues with Bryanna from birth, stemming from her perception the maternal grandmother paid more attention to Bryanna than to her. Mother acknowledged her need for help. The Madera County Juvenile Court adjudged Jonathan, Grey.R., Jal.R., Jar.R. and Bryanna juvenile dependents.
In March 2015, the Madera County Juvenile Court accepted the children’s case from Los Angeles County and, in June, following a contested 18-month review hearing, terminated mother’s reunification services and set a section 366.26 hearing for October. The court continued the hearing so the Madera County Department of Social Services (department) could assess the children’s relationship with mother and with their siblings.
Meanwhile, in April 2015, mother underwent a psychological evaluation by Robert Taylor, Ph.D., whose findings were consistent with those reported by Dr. Green in 2012. Dr. Taylor opined mother was chronically, emotionally overwhelmed and poorly equipped to cope with the stresses and frustrations of daily life. As a result, she was prone to lashing out in an angry, aggressive manner. He recommended various modes of therapeutic intervention and advised against returning the children to her custody until she demonstrated clear progress in treatment. Otherwise, he cautioned, she remained at high risk for future abusive behavior.
In November 2015, the juvenile court granted the department’s request to supervise mother’s visits with the children in light of inappropriate conversations she had with them during visitation. The department reported an interaction two days before Jay.R.’s seventh birthday in which mother disclosed she was having a baby boy and asked for suggested names. When the children appeared disinterested, she asked Jay.R. if he was going to cry if he did not get the kind of cake he wanted for his birthday. Mother told him he was a “cry baby” and if he cried on his birthday, his siblings could call him a “cry baby” and lick his face. She then urged him to tell the social worker he wanted to have visits at her house. Jay.R. reportedly looked at his mother blankly and then complied. The social worker explained the visits had to be conducted at the visitation center. At the end of the visit, after complaining to the social worker that Jay.R. was disrespectful to her, mother told Jay.R. she had the “power to say no to visits,” explaining she could tell the foster parents not to bring him.
In its report for the section 366.26 hearing, the department recommended the juvenile court select adoption as the children’s permanent plan but not terminate parental rights. Though the children were considered adoptable and had developed a strong bond with their foster parents, the foster parents were not willing to adopt them and a prospective adoptive family had not been identified. Further, though mother regularly visited the children during reunification, they did not have a strong bond with her or their siblings.
In January 2016, Jonathan was placed with mother and she gave birth to a son, C.R.
In March 2016, at the section 366.26 hearing, the juvenile court approved a plan of adoption for the children without terminating parental rights and continued the hearing until September 2016 so the department could locate an adoptive family. In July 2016, the department returned Grey.R., Jal.R. and Jar.R. to mother with family maintenance services.
During a visit in June 2016, Gen.R. stated she hoped she was not going home because she liked her foster home. When the social worker asked her what she missed about her mother, she replied, “I don’t miss my mom; I don’t want to go home.” She added, “I am going to miss my foster mom, the dogs and my foster mom’s daughter.” Jay.R. expressed the same sentiment stating, “I don’t want to go home, I don’t like the way my mom acts and how she is mean and hurts our feelings.”
In September 2016, mother’s attorney filed a section 388 petition, asking the juvenile court to return the children to mother with family maintenance services. She cited the return of Grey.R., Jal.R. and Jar.R. to mother’s custody as circumstances supporting a modified order and the opportunity to strengthen familial bonds as a basis for finding such an order would serve the children’s best interest.
In November 2016, the juvenile court denied mother’s section 388 petition. The court acknowledged mother completed many services but believed the children had special needs that their foster parents were meeting. The court found no evidence mother could address their needs or that placing the children with her served their best interest. The court noted the children were doing well in their placement and spent very little time in mother’s care because they were removed not long after birth. The court also adopted the department’s recommendation to maintain the children in long-term foster care with a goal of adoption.
The children remained with their foster parents with no change in their permanent plan. In June 2017, mother’s attorney filed section 388 petitions, asking the juvenile court to place the children with mother and dismiss the case or order family maintenance services. As changed circumstances, the attorney alleged mother completed a child abuse treatment program in April 2017, successfully reunified with the children’s four siblings and consistently visited the children. According to mother, the children asked why they could not return home and said they felt left out because mother reunified with their siblings.
Through interviews, the department ascertained the foster parents wanted to adopt the children and the children wanted to be adopted by them. Jay.R. told social worker Maria Cruz he loved his foster parents, “Nana and Big Papa.” He said, “If I go home to my mom, there is no room for me. Mom has too many kids at home and she won’t be able to take care of me like Nana and Big Papa. I love living with Nana and Big Papa and I have my own room in their home and they take me and [Gen.R.] on trips.” He added that he also enjoyed his foster parents’ extended family and their family gatherings. Gen.R. echoed Jay.R.’s sentiments. She loved her foster parents and felt safe with them. The children denied telling mother they wanted to go home or they felt left out. Jay.R. said he was so worried about returning to mother that his stomach hurt.
In October 2017, the juvenile court conducted a contested hearing on the children’s permanent plan and mother’s section 388 petitions. Mother testified Juan worked full-time and they lived in a three-bedroom apartment with the five children. She did not understand why she could not have custody of the children and was willing to complete any services and get a larger home if necessary. She completed classes in parenting, sexual awareness and domestic violence and participated in individual therapy. She recognized anger was an issue for her but stated, “I’ve come a long way.” She acknowledged the children had not lived with her for approximately six years.
Nine-year-old Jay.R. testified he wanted to remain with his foster parents because he loved them and wanted a “forever home.” They told him about God and took him to church. They also took him to Hawaii and Disneyland but that was not why he wanted to stay with them. He would be sad if he were not able to visit his brothers and sisters or see them again. Asked how he would feel if he and Gen.R. returned to their parents and he was able to visit his foster parents, he responded, “I would be okay with that.”
Eight-year-old Gen.R. testified she was two years old when she last lived with mother. Asked how she would feel if she lived with mother again and visited her foster parents, she responded, “Not happy.” She liked living with her foster parents and they took good care of her. She would be sad if she could not see her siblings.
The juvenile court denied mother’s section 388 petitions and set a section 366.26 hearing. In ruling, the court identified the evidence it considered and the factors on which it based its opinion, stating:
“So I have reviewed all the evidence.… I looked at the reports.… I also looked at the testimony.… I have handled the R****** cases and … [i]t’s kind of a complex CPS history .… [¶] But the point I took away from it is [Jay.R.] and [Gen.R.] have been out of mom’s care for pretty much their entire lives .… [¶] … [¶] … I don’t believe that it’s in the best interest [of the] children to return [them] to the mom. [¶] [The children are happy] where they’re at. They’re doing well where they’re at. They’re loved where they’re at. They want to stay where they’re at. That’s the take away that I perceived when the two children testified, [Jay.R. and Gen.R.].”
DISCUSSION
Mother contends the juvenile court abused its discretion in denying her section 388 petitions because “it relied almost entirely on the stated desire of the minors (ages 9 and 8) to remain in their current placements, notwithstanding substantial evidence presented by Mother that the relief sought by her motions would serve the children[’s] best interests.”
Section 388 permits a parent to petition the juvenile court to change, modify, or set aside any previous order made in the dependency proceeding based on changed circumstances. “The parent bears the burden of showing both a change of circumstance exists and that the proposed change is in the child’s best interests.” (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) “Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.… The court need not continue to consider the issue of reunification at the section 366.26 hearing. The burden thereafter is on the parent to prove changed circumstances pursuant to section 388 to revive the reunification issue.” (In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.).)
Thus, section 388 effectively operates as an “‘escape mechanism,’” allowing the juvenile court to consider new information while recognizing a dependent child’s need for stability. (Marilyn H., supra, 5 Cal.4th 295 at p. 309.) Marilyn H. explained, “The parent’s interest in having an opportunity to reunify with the child is balanced against the child’s need for a stable, permanent home. The parent is given a reasonable period of time to reunify and, if unsuccessful, the child’s interest in permanency and stability takes priority. Even after the focus has shifted from reunification, the scheme provides a means for the court to address a legitimate change of circumstances while protecting the child’s need for prompt resolution of his custody status.” (Ibid.; see In re Stephanie M. (1994) 7 Cal.4th 295, 317 [“there is a rebuttable presumption that continued foster care is in the best interests of the child”].)
“On appeal, we will not reverse the decision of the juvenile court unless the parent establishes the trial court abused its discretion.” (In re Casey D., supra, 70 Cal.App.4th at p. 47.) “ ‘ “The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” ’ ” (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
In the present case, the juvenile court assumed there was a change of circumstances and denied mother’s section 388 petition because she failed to show reunification would serve the children’s best interest. The court based its decision on evidence the children had been out of mother’s care nearly their entire lives, were doing well in their foster home placement, loved their foster parents and wanted to remain in their custody. Further, the foster parents were interested in providing the children permanency, which the court believed they deserved. On that evidence, we find no abuse of discretion.
Mother nevertheless contends the juvenile court deferred to the children’s desire to remain in their foster home and the children’s desire was based on the more comfortable conditions and travel benefits of their foster placement. Thus, mother argues, the juvenile court abdicated its decision-making authority to the children and adopted the “ ‘simple best interest’ ” test the appellate court cautioned against using to determine a child’s best interest in In re Kimberly F. (1997) 56 Cal.App.4th 519, 529-530 (Kimberly F.).
We conclude mother’s contentions are not supported by the record or Kimberly F. The juvenile court’s decision was based on multiple factors, the children’s desire constituting only one. The court also considered the many years the children had been out of mother’s custody and their strong bond with their foster parents.
Further, Kimberly F. is factually and procedurally distinguishable. The juvenile court in that case removed the mother’s two youngest children and placed them with relatives when the mother’s home was determined to be unsanitary and unsafe. At the 18-month review hearing, the court terminated reunification services and set a section 366.26 hearing. Five months later, and shortly before the section 366.26 hearing, the mother filed a section 388 petition. The juvenile court denied the mother’s petition, finding there had been no change in circumstances and that the proposed modification would not be in the minors’ best interests. (Kimberly F., supra, 56 Cal.App.4th at pp. 522-526.) The appellate court reversed, concluding, as relevant here, that a child’s best interest cannot be determined based solely on a comparison of the parent’s house to that of the foster parent. The court cautioned against this “incomplete” and “one-dimensional” approach in assessing a child’s best interest because it ignored “all familial attachments and bonds” and “totally devalues any interest of the child in preserving an existing family unit .…” (Id. at pp. 529-530.) The court identified three factors it considered essential in making a reasoned and principled decision under section 388: (1) the seriousness of the problem leading to dependency and the reason the problem was not overcome; (2) the strength of relative bonds between the child and both parent and caretaker; and (3) the degree to which the problem may be easily removed and the degree to which it actually has been. (Id. at p. 532.)
Kimberly F. is procedurally distinguishable because the juvenile court denied the mother’s section 388 petition before it selected a permanent plan (Kimberly F., supra, 56 Cal.App.4th at pp. 525-526), when family reunification was still a viable consideration. In this case, however, the children had been in a permanent plan of adoption for over a year when mother’s section 388 petitions came before the court. At that stage, the Kimberly F. approach may not be appropriate since it fails to give full consideration to the child’s need for permanency and stability. (In re J.C. (2014) 226 Cal.App.4th 503, 527.) In any event, the most important of the Kimberly F. factors in this case (the strength of the children’s bonds to mother and their foster parents) does not weigh in mother’s favor. The children were strongly bonded to their foster parents and consistently and unhesitatingly expressed their desire to live with them permanently, not just because of the better accommodations and family trips but because they loved them and felt safe in their care. Indeed, the court in Kimberly F. affirmed the importance of the child’s bond with caretakers in this context, “While the bond to the caretaker cannot be dispositive …, lest it create its own self-fulfilling prophecy, our Supreme Court made it very clear in Jasmon O. that the disruption of an existing psychological bond between dependent children and their caretakers is an extremely important factor bearing on any section 388 motion.” (Kimberly F., supra, 56 Cal.App.4th at p. 531.)
We find no abuse of discretion.


DISPOSITION
The extraordinary writ petition is denied. This court’s opinion is final forthwith as to this court pursuant to rule 8.490(b)(2)(A) of the California Rules of Court.