In re M.R. CA2/7 ( 2016 )

Filed 4/25/16 In re M.R. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re M.R. et al., Persons Coming Under B265446
the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. CK54217)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
M.R.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County, Marilyn
Kading Martinez, Juvenile Court Referee. Affirmed.
Terence M. Chucas, under appointment by the Court of Appeal, for Defendant and
Appellant.
Mary C. Wickham, County Counsel, Dawyn R. Harrison, Assistant County
Counsel, and Jeanette Cauble, Senior Deputy County Counsel, for Plaintiff and
Respondent.
__________________
On April 30, 2013 the juvenile court sustained a petition filed by the Los Angeles
County Department of Children and Family Services (Department) on behalf of then-10-
year-old M.R., eight-year-old A.P. and six-year-old Z.P. pursuant to Welfare and
Institutions Code section 300, subdivision (b) (failure to protect),1 and on behalf of three-
year-old P.P. and two-year-old J.P. pursuant to section 300, subdivisions (b) and
(j) (abuse of sibling), finding that the children’s mother M.R. (Mother) and father
David P. (Father) failed to properly supervise the children and had placed the three older
ones (M.R., A.P. and Z.P.) in a detrimental and endangering situation by causing them to
walk approximately two-tenths of a mile down Ventura Boulevard and to cross a busy
intersection twice without adult supervision to sell chocolates in a supermarket parking
lot. We affirmed the court’s findings and order in a nonpublished opinion. (In re M.R.
(Mar. 21, 2014, B249625).)
Following a contested 18-month review hearing (§ 366.22) the juvenile court on
March 2, 2015 terminated Mother’s reunification services and set a selection and
implementation hearing (§ 366.26) for June 5, 2015. On May 29, 2015 Mother filed a
request to change court order (§ 388) asking that the orders of suitable placement for the
children and termination of family reunification services be modified by either placing
the children with her or, in the alternative, reinstating reunification services with
overnight visits. The court summarily denied the request. At the continued selection and
implementation hearing on June 22, 2015 the court found it was in the children’s best
interest to appoint their paternal cousin Donna S., with whom they had been living for
more than two years, as their legal guardian. The court appointed Donna legal guardian,
ordered monitored visits for Mother and Father once a week for approximately two hours
with Donna to determine the time, manner and location of visits, and terminated
dependency jurisdiction.
1
Statutory references are to the Welfare and Institutions Code.
2
Mother appeals from the court’s summary denial of her section 388 petition, the
section 366.26 order limiting her to monitored visitation and the decision to terminate
dependency jurisdiction. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Events Leading to the Termination of Mother’s Reunification Services
The evidence supporting the juvenile court’s exercise of jurisdiction and removal
of the children from Mother and Father and information regarding the family’s prior
involvement with the dependency system including Mother and Father’s history of
substance abuse and their known criminal histories are set forth in detail in our prior
opinion. At disposition the court ordered reunification services for both Mother and
Father including a 52-week parenting program and on-demand drug testing if there was a
reasonable suspicion either parent was under the influence. Participation in a full drug
rehabilitation program was required only if they tested positive or failed to test.
By the time of the jurisdiction/disposition hearing two of the three oldest children
were living with their cousin Donna, who had previously cared for them when asked by
2
the family for assistance. All five children were residing with Donna by the six-month
review hearing in January 2014. Mother and Father remained incarcerated on charges of
welfare fraud and other property-related crimes that had been pending prior to the
children’s detention. Based on Mother’s enrollment in a substance abuse treatment
program, the court found her in compliance with the case plan and ordered a continuation
of family reunification services. Father was found not in compliance with the case plan;
his reunification services were terminated.
2
Donna is Father’s first cousin and thus a “relative” within the meaning of the
dependency statutes. (§ 319, subd. (f)(2) [“‘relative’ means an adult who is related to the
child by blood, adoption, or affinity within the fifth degree of kinship”]; Cal. Rules of
Court, rule 5.502(34)(A) & (A)(i) [“relative” means an adult “who is related to the child
by blood, adoption, or affinity within the fifth degree of kinship”; the term includes a
“first cousin once removed (parents’ first cousin)”].)
3
For the 12-month review hearing in June 2014 the Department reported Mother
had been released from prison in February 2014 (Father remained incarcerated) and had
enrolled in a substance abuse program. Her participation in the program was terminated
in April 2014 for noncompliance and a positive alcohol test. However, she subsequently
tested negative for alcohol and drugs. Mother was living in transitional housing that did
not include housing for her children. The Department enrolled her in parenting classes
and anger management courses, and she was consistent in her attendance. Mother also
received weekly mental health services and medication support. Although the court
found Mother was not in compliance with her case plan, it ordered continued
reunification services for her. The Department reported the children were doing well in
Donna’s home.
In connection with the contested 18-month review hearing, ultimately held on
March 2, 2015 after several continuances, the Department reported Mother had finished
parenting and anger management classes and continued to have negative results on drug
and alcohol tests. Her transitional housing had terminated in October 2014, and she had
not found a new residence despite referrals from the Department. Mother began two-
hour unmonitored visitation with the children on Saturday mornings at a fast-food
restaurant in late September 2014 and had unmonitored telephone contact. Mother’s
visits were subsequently moved, apparently at her request, to the Department’s offices.
Mother missed all her visits in January and February 2015, explaining there was “too
much drama” with Donna. The Department, however, stated Donna dropped the children
off and returned to pick them up and was not present for the visits. According to a last
minute report submitted on the day of the section 366.22 hearing, “Mother refuses to take
responsibility for her own actions and decisions not to visit in a safe place of mother’s
choice.” She had only one telephone contact with the children during this period.
Father was released from prison in February 2015. The Department advised the
court he was living with Mother in the home of paternal relatives. Father failed to attend
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monitored visits arranged by the Department. The children continued to do well in
Donna’s home.
After hearing testimony from the social worker, Mother and Donna, the court
terminated Mother’s reunification services and set the selection and implementation
hearing for June 5, 2015. Her visits with the children, to occur once a week at the
Department’s offices, remained unmonitored. Mother filed a notice of intent to file writ
petition under California Rules of Court, rules 8.450-8.452. Her appointed trial counsel
then filed a notice pursuant to Glen C. v. Superior Court (2000) 78 Cal.App.4th 570advising the court she was unable to file a petition for extraordinary writ on the merits.
We granted an extension of time for Mother to file her petition. When no petition was
filed, the proceeding was deemed nonoperative.
2. The Section 388 Request To Modify
On May 29, 2015 Mother filed a section 388 petition asking the court to return the
children to her or, alternatively, to reinstate reunification services with overnight visits.
In support of her request to modify prior orders, Mother alleged she now had stable
housing, had consistently tested negative for drugs and alcohol and visited the children
regularly. Mother also stated, “My children would benefit from being raised in a loving
home with their mother.” The petition had no exhibits or attachments.
The court summarily denied the petition on June 2, 2015, ruling, “Reunification
was just terminated 3 months ago. Mother has not provided any new evidence nor
changed circumstances nor that request is in children’s best interest.” The order denying
the petition was filed June 8, 2015.
3. The Selection and Implementation Hearing
In its report dated June 5, 2015 prepared for the section 366.26 hearing, the
Department identified Donna as the children’s prospective legal guardian and reported
Donna’s home had been assessed as appropriate and safe for the children. All five
children indicated they were happy living with Donna, who confirmed her willingness to
provide them with a permanent home through legal guardianship. Although the
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Department considered it likely the children would be adopted if parental rights were
terminated, the Department recommended the court select legal guardianship as the
permanent plan pursuant to section 366.26, subdivision (c)(1)(A) (termination of parental
rights would be detrimental to a child who is living with a relative who is unable or
unwilling to adopt the child because of exceptional circumstances that do not include an
unwillingness to accept legal or financial responsibility for the child but who is willing
and capable of providing the child with a stable and permanent environment, and removal
of the child from the custody of that relative would be detrimental to the emotional well-
being of the child). The Department also recommended that dependency jurisdiction be
terminated with financial assistance under the Kin-GAP program in place. The matter
was continued to June 22, 2015.
At the continued hearing Donna testified that she would facilitate weekly visits
with Mother. Responding to questions regarding her relationship with Mother and
Father, she insisted she was willing to put aside her differences with them, as she had
tried to do in the past. If she felt it was safe to do so, she would liberalize visitation.
Mother’s counsel reminded the court the children’s visits with Mother had most recently
been unmonitored at the Department’s offices and asked that they remain unmonitored in
a public setting. The Department objected to unmonitored visitation and referred the
court to the information in a March 2, 2015 last minute report regarding Mother’s missed
visits. Counsel for the four younger children joined the Department’s objection.
At the conclusion of the hearing the court appointed Donna the children’s legal
guardian and ordered Mother’s visits with the children to be monitored once per week for
two hours. The legal guardian was authorized to determine the time, manner and location
of the visits. The court then terminated dependency jurisdiction over the children without
objection from any party. Letters of guardianship were issued on the day of the hearing.
6
DISCUSSION
1. The Juvenile Court Did Not Abuse Its Discretion in Summarily Denying
Mother’s Section 388 Petition
a. Section 388 and the standard of review
Section 388 provides for modification of juvenile court orders when the moving
party presents new evidence or a change of circumstances and demonstrates modification
of the previous order is in the child’s best interests. (In re Stephanie M. (1994) 7 Cal.4th
295, 317; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Y.M. (2012) 207 Cal.App.4th
3
892, 919; see Cal. Rules of Court, rule 5.570(e).) To obtain a hearing on a section 388
petition, the parent must make a prima facie showing as to both of these elements. (In re
Brittany K. (2005) 127 Cal.App.4th 1497, 1504; In re Justice P. (2004) 123 Cal.App.4th
181, 188.) The petition should be liberally construed in favor of granting a hearing, but
“[t]he 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; accord, In re Brittany K., at p. 1505.)
“In determining whether the petition makes the necessary showing, the court may
consider the entire factual and procedural history of the case.” (In re Justice P., at
p. 189.)
Even if a parent presents prima facie evidence supporting the allegations contained
in the petition, however, “[a] petition [that] alleges merely changing circumstances and
would mean delaying the selection of a permanent home for a child to see if a parent,
who has repeatedly failed to reunify with the child, might be able to reunify at some
future point, does not promote stability for the child or the child’s best interests.” (In re
Casey D. (1999) 70 Cal.App.4th 38, 47; accord, In re Mary G. (2007) 151 Cal.App.4th
3
Section 388 provides a parent or other interested party “may, upon grounds of
change of circumstance or new evidence, petition the court . . . for a hearing to change,
modify, or set aside any order of court previously made . . . . [¶] . . . [¶] . . . If it appears
that the best interests of the child . . . may be promoted by the proposed change of
order, . . . the court shall order that a hearing be held . . . .”
7
184, 206.) The parent must also “show that the undoing of the prior order” would be in
the child’s best interests. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529; accord,
In re Mickel O. (2011) 197 Cal.App.4th 586, 615.)
We review the summary denial of a section 388 petition for abuse of discretion.
(In re A.S. (2009) 180 Cal.App.4th 351, 358; In re Brittany K., supra, 127 Cal.App.4th at
p. 1505.) We may disturb the juvenile court’s exercise of that discretion only in the rare
case when the court has made an arbitrary, capricious or “patently absurd” determination.
(In re Stephanie M., supra, 7 Cal.4th at p. 318.)
b. Summary denial of Mother’s petition was justified
Mother’s section 388 request to change court order, filed less than three months
after the court had found that return of the children to Mother would likely result in their
severe physical or emotional harm, identified three purported changes in circumstance:
She now had stable housing; her drug tests were consistently negative; and she was
visiting regularly with the children. However, no evidence of any sort was presented to
support her claim of newly stable housing. Indeed, Mother did not even identify where
or with whom she was living or for how long she had been there. In fact, the only
information in the record before the juvenile court indicated she was still living with
Father, a situation that Mother conceded was not stable.
As for her drug-test results, again Mother did not provide any new evidence,
relying on information that had previously been before the court at the contested 18-
month review hearing. At that time the court determined Mother was in compliance with
the case plan but nonetheless concluded reunification services were properly terminated
and the matter set for a selection and implementation hearing. Reargument of previously
determined issues is not the proper function of a section 388 petition.
Finally, Mother alleged she had been regularly visiting with the children but
supplied no details; Donna, in contrast, reported that Mother’s visits had been
inconsistent after the 18-month review hearing on March 2, 2015 and recalled only three
such visits during the intervening 12-week period. Even crediting Mother’s version, a
8
dozen one-hour weekly visits in the Department’s offices at most constitute “changing
circumstances” and are an insufficient basis to conclude reinstatement of reunification
services, let alone return of the children to Mother’s custody, would be in their best
interest. The court’s summary denial of a hearing on the section 388 petition was not an
abuse of its broad discretion.
2. The Court’s Monitored Visitation Order Was an Appropriate Exercise of
Its Discretion
Pursuant to section 366.26, subdivision (c)(4)(C), if the court appoints a legal
guardian for children who are dependents of the court, “[t]he court shall also make an
order for visitation with the parents . . . unless the court finds by a preponderance of the
evidence that visitation would be detrimental to the physical or emotional well-being of
the child.” (See Cal. Rules of Court, rule 5.735(d)(2) [if the court finds legal
guardianship is the appropriate permanent plan, “[t]he court may issue orders regarding
visitation of the child by a parent or other relative”].) In crafting a visitation order the
dependency court has the responsibility to balance the rights of the parent with the best
interests of the child. (In re R.R. (2010) 187 Cal.App.4th 1264, 1284; In re Robert L.
(1993) 21 Cal.App.4th 1057, 1067.) The court may delegate authority to the legal
guardian to decide the time, place, and manner in which visitation will occur, but not the
frequency or duration of the visits. (In re Rebecca S. (2010) 181 Cal.App.4th 1310,
1314.) We review an order setting visitation for an abuse of discretion. (In re Brittany C.
(2011) 191 Cal.App.4th 1343, 1356; In re R.R., at p. 1284.)
The court’s visitation order here complied with the limits on its ability to delegate
authority to the legal guardian: It specified the frequency and duration of the visits (at
least once per week for two hours) and left all other details to Donna. However,
emphasizing that visitation for the nine months preceding the selection and
implementation hearing had been unmonitored, Mother argues the court arbitrarily
ordered her future visits were to be monitored (apparently subject to the discretion of the
legal guardian to liberalize those visits) and contends there was no substantial evidence to
support the change from unmonitored to monitored.
9
The order for monitored visitation was an appropriate exercise of the dependency
court’s discretion. As explained by the Department, which objected to Mother’s request
for unmonitored visitation at the June 22, 2015 hearing, as did counsel for the four
younger children, the condition for Mother’s earlier unsupervised visits was that they
take place at the Department’s offices. (A few visits also took place in the home of
relatives when Donna was present.) The protection afforded by that safe location would
no longer be available once the court terminated dependency jurisdiction. In addition,
information before the court indicated Mother still lived with Father, she allowed him to
have contact with the children, and he continued to interact inappropriately with them (he
appeared to be under the influence of a drug and threatened the social worker during a
monitored visit). Accordingly, the court was justifiably concerned that Mother would
expose the children to Father if permitted unmonitored visitation. (See In re Marquis D.
(1995) 38 Cal.App.4th 1813, 1825 [ample evidence supports juvenile court’s implied
findings, which, while not express, were “obvious” from the record].) Although, as
Mother notes, the court could have protected the children by prohibiting Mother from
allowing Father to have contact with them during her unmonitored visits, the decision to
instead limit her to monitored visitation until liberalized by Donna was neither arbitrary
nor irrational. (See In re Brittany C., supra, 191 Cal.App.4th at p. 1356 [reviewing court
will not disturb an order setting visitation terms “unless the trial court made an arbitrary,
capricious, or patently absurd determination”].)
3. Termination of Dependency Jurisdiction Was Proper
Section 366.3, subdivision (a), provides, in part, “Following establishment of a
legal guardianship, the court may continue jurisdiction over the child as a dependent child
of the juvenile court or may terminate its dependency jurisdiction and retain jurisdiction
over the child as a ward of the legal guardianship, as authorized by Section 366.4. If,
however, a relative of the child is appointed the legal guardian of the child and the child
has been placed with the relative for at least six months, the court shall, except if the
relative guardian objects, or upon a finding of exceptional circumstances, terminate its
10
dependency jurisdiction and retain jurisdiction over the child as a ward of the
guardianship, as authorized by Section 366.4.” Pursuant to this provision, dismissal of
the dependency proceeding is mandatory following appointment, as here, of a relative
legal guardian, absent objection by the guardian or a finding of exceptional
circumstances. (In re Grace C. (2010) 190 Cal.App.4th 1470, 1475.) The juvenile court
retains jurisdiction over the children as guardianship wards, and a parent may petition the
court for a change in order if a problem with visitation develops. (Id. at p. 1476, fn. 5;
4
In re Kenneth S., Jr. (2008) 169 Cal.App.4th 1353, 1358.) We review the order
terminating dependency for abuse of discretion. (In re Grace C., at p. 1475;
In re Twighla T. (1992) 4 Cal.App.4th 799, 806.)
Mother contends the need for continuing judicial oversight to safeguard her right
to meaningful visitation with the children constitutes extraordinary circumstances
sufficient to overcome section 366.3, subdivision (a)’s otherwise mandatory directive to
terminate dependency jurisdiction upon appointment of a relative guardian. She cites the
poor relationship between Mother and Donna, “[l]eaving aside whether [Mother] or
Donna is responsible,” and the three younger children’s past reluctance to visit with
Mother, as demonstrating the importance of ongoing, periodic review hearings before the
court.
4
In his reply brief Mother’s appellate counsel notes minute orders dated October 2,
2015, November 4, 2015 and November 25, 2015, submitted to this court with a motion
for judicial notice by the Department, indicate several section 388 petitions filed by
Mother after the termination of dependency jurisdiction were summarily denied.
Although the minute orders do not reflect the substance of Mother’s requests to change
court orders, counsel suggests, given the history of the case, it is reasonable to infer they
related to visitation. These minute orders certainly confirm that Mother continues to have
access to the juvenile court to present any issues that may arise regarding her visitation.
However, contrary to counsel’s suggestion, they provide no support for her argument that
the denial of her petitions somehow justifies a reversal of the juvenile court’s decision to
terminate its dependency jurisdiction.
The Department’s motion for judicial notice of these three minute orders is
granted.
11
As discussed, Mother did not object to the termination of dependency jurisdiction
at the June 22, 2015 selection and implementation hearing at which Donna was appointed
legal guardian. Even if Mother’s silence did not forfeit the issue on appeal, as the
Department contends (see, e.g., In re K.D. (2004) 124 Cal.App.4th 1013, 1018-1019
[finding waiver by appellant who did not challenge termination in juvenile court
following appointment of a legal guardian; the court nonetheless exercised its discretion
5
to consider the issue]), Mother failed to present any evidence that Donna would not
honor the court’s visitation order. To the contrary, the social workers’ reports in
evidence indicated that Donna had cooperated with visitation and that Mother’s past
difficulties in seeing the children were not attributable to any interference by Donna. In
addition, Donna testified at the hearing that she would facilitate the weekly visits ordered
by the court and explained, if the younger children did not want to go, she would talk to
them about how important it was to see their parents. Even Mother’s counsel, when
arguing for unmonitored visitation, acknowledged that prior conflicts between Mother
and Donna had diminished. On this record the juvenile court was not obligated to find
exceptional circumstances precluded termination of dependency. (In re Grace C., supra,
190 Cal.App.4th at p. 1476 [“[b]ecause the juvenile court’s conclusion that the legal
guardians supported continued visitation was supported by substantial evidence, we reject
mother’s argument that jurisdiction should have been maintained to oversee visitation”].)
5
In In re K.D., supra, 124 Cal.App.4th 1013 the appellate court reversed the order
terminating dependency jurisdiction because the juvenile court’s appointment of an out-
of-state guardian was “fatally inconsistent” with its finding it was in the child’s best
interest to maintain the parental bond. (Id. at pp. 1018-1019.) Mother’s reliance on this
case is misplaced. Not only was the threat to continued visitation far different but also
the legal guardian was not a relative. Accordingly, the juvenile court was not required by
section 366.3, subdivision (a), as it was here, to dismiss dependency absent a finding of
exceptional circumstances.
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DISPOSITION
The orders of June 8, 2015 and June 22, 2015 are affirmed.
PERLUSS, P. J.
We concur:
ZELON, J.
SEGAL, J.
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