In re Madison M. CA2/3 ( 2020 )

Filed 11/13/20 In re Madison M. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re Madison M., a Person Coming B300137
Under the Juvenile Court Law.
Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. CK93381A
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
C.M.,
Defendant and Appellant;
C.B.,
Defendant and Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County, Pete R. Navarro, Judge Pro Tempore
of the Juvenile Court. Affirmed.
Michelle L. Jarvis, under appointment by the Court
of Appeal, for Defendant and Appellant.
Linda Rehm, under appointment by the Court of Appeal,
for Defendant and Respondent.
No appearance by Plaintiff and Respondent.
_________________________
C.M. (father) appeals from a juvenile court order denying
his petition under Welfare and Institutions Code section 388,
requesting custody of his nine-year-old daughter Madison M.,
who had been under the legal guardianship of her maternal
grandparents for more than five years. We affirm.
BACKGROUND
1. The 2012 petition and 2014 guardianship
Madison was two years old on May 8, 2012, when the
Los Angeles County Department of Children and Family Services
(DCFS) filed a petition under Welfare and Institutions Code
section 300, subdivision (b).1 The petition alleged father and
C.B. (mother) endangered Madison by having a drug pipe with
residue in the home and within Madison’s reach. Hallucinogenic
mushrooms and marijuana were in father’s parked car. Mother
and father used marijuana, which made them periodically
incapable of caring for Madison. They were in jail following
their May 3 arrests for child endangerment and possession
and transportation of a controlled substance.
The juvenile court found father was Madison’s presumed
father and detained Madison, placing her with her maternal
1 All statutory references are to the Welfare and Institutions
Code.
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grandparents Lori and Arthur a week after the petition was filed.
Both mother and father filed waivers of rights submitting the
petition on the social worker’s reports and documents. The court
sustained the petition on July 3, 2012, removed Madison from
mother and father, and ordered reunification services and
monitored visitation.
At the six-month review hearing in January 2013, the
court found father compliant with the case plan, continued
reunification services, and gave DCFS discretion to allow him
two hours a week unmonitored visitation.
In February 2013, the court allowed both parents
unmonitored visitation, giving father one hour three times
a week for two weeks, and then two hours with discretion to
liberalize, on the condition he remained compliant and tested
clean. Lori and Arthur reported when he did visit, father was
inattentive to Madison, and she did not show interest in being
with him.
In July 2013 father was in partial compliance and had
recently been arrested for possession of marijuana for sale. His
unmonitored visits had been stopped, and his monitored visits
had not been consistent.
In September 2013, both mother and father were in partial
compliance. Father stopped participating in AA/NA meetings,
missed drug tests, and had not shown completion of parenting
and substance abuse programs. Madison was doing well with
Lori and Arthur, who wanted legal guardianship with the goal
of adoption. DCFS recommended the court terminate family
reunification services, with monitored visits for father. At the
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12-month review hearing on September 16, 2013, the court
terminated reunification services and set a section 366.26
hearing, giving the parents notice of the right to seek writ relief.
At the section 366.26 hearing on January 14, 2014, father
and mother were present with counsel. DCFS reported four-year-
old Madison was developmentally on target, attended preschool,
and was happy and comfortable with Lori and Arthur. Mother
had failed to contact the social worker and stopped drug testing
in October 2013, so her unmonitored visitation had been changed
to monitored. Father attended sporadic monitored visits and
did not seem closely bonded with Madison. DCFS recommended
a permanent plan for Madison of legal guardianship by Arthur
and Lori, who planned to move to their second home in Arizona.
The court terminated jurisdiction and ordered
guardianship for Madison with Arthur and Lori, with monitored
visitation for mother and father. The court did not terminate
parental rights. Guardianship papers were filed that day.
2. The 2019 section 388 petitions
Five years and three months later, on April 14, 2019,
Father filed a section 388 petition requesting the court change
the guardianship order. Lori and Arthur, who now lived with
Madison in Arizona, were getting a divorce, and Lori might move
to Alabama. He had improved himself and had a career. He
wanted custody of Madison because it would be more stable,
and allow her “to grow as a youth” because her guardians’ ages
were holding her back.
Mother, who now lived in Arizona, also filed a section 388
petition on May 6, 2019. She requested termination of the
guardianship and reunification with Madison, because Lori
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wanted to move Madison to Alabama. Mother had other children
living with her and Madison wanted to come home.
Arthur filed a section 388 petition on July 2, 2019. He
and Lori were getting a divorce and he wanted to maintain sole
legal guardianship of Madison, who was settled and thriving
in Arizona. Arthur wanted legal custody with visitation rights
for the parents and Lori. Mother, who lived 40 minutes away,
wanted Madison to stay in his care.
Lori’s section 388 petition, filed July 15, 2019, explained
she and Arthur were divorcing, she was moving to Alabama,
and Madison did not want to relocate. Lori wanted to relinquish
her legal guardianship of Madison, who wanted to stay with
Arthur. Lori added that mother was a recovering drug addict
and alcoholic who continued to drink and smoke daily. Mother
was responsible for three other children, who were dirty and
neglected, and her live-in boyfriend was an alcoholic and former
gang member. Madison did not want to live with mother.
In a DCFS interim review report filed July 17, 2019, father
stated he had completed a drug program required for criminal
court and was no longer on probation. (The agency was unable
to verify father’s completion because the program shredded its
records after five years.) Father had worked for seven months
(since December 2018) at the local electrician’s union, which did
random drug testing of its employees. He had a one-year-old son
and a two-year-old daughter with his partner Coelina, who had
a master’s degree in early childhood special education and
worked at night as a waitress. Coelina stated father had been
sober ever since she met him six years earlier. They lived with
the two young children in a two-bedroom, two-bath apartment.
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Asked why he had not regained custody of Madison after
complying with the dependency court orders, father said he had
been homeless and sleeping in his car and knew Madison would
have a better life with Lori and Arthur. He had been unable
to visit Madison in Arizona because it was expensive. He had
stayed home for the first year of his new daughter’s life. He and
Coelina visited Madison at Christmas a few years ago. He was
happy to be able to give her Christmas gifts, but felt awful that
she didn’t like them. He FaceTimed with Madison once a week,
and when Lori visited California she let father have a day visit
or dinner with Madison. (The social worker then called Lori,
who was visiting California, and she allowed Madison to have
an overnight visit at father’s home.)
Father’s plan was for Madison to attend an afterschool
program, and he would pick her up after work; during the
summers, Coelina was home during the day. Father had made
mistakes, was trying to improve, and wanted a “fair share” to
be a father. He had his GED, a job, and six years of sobriety.
Lori told the social worker she recently stayed with mother
and saw her drink beer in the morning. The house was filthy,
there was no food, and the children were unsupervised. Mother
hit Lori while she was driving with Madison in the car, leaving
bruises on Lori’s arms. The police were called. Arthur “was
an asshole as a husband but he is a good father.” Father never
made time for Madison, visiting only once in Arizona and when
Lori and Madison were in California often saying he was busy.
Nevertheless, Lori would rather father have custody of Madison
than mother. But “Madison has all kinds of questions. She
wants to know why her dad wants her now.”
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Madison told the social worker she did not want to live with
mother, who drank beer and smoked when she drove, and didn’t
make Madison wear a seat belt. On mother’s birthday, mother
had five beers at a pizza place and tried to snatch the keys from
Lori, hitting her and causing bruises. Madison told the police
what happened. Madison was sad Lori and Arthur were
divorcing, and she wanted to live with Arthur, who bought her
a cat she talked to when she was sad. When Arthur couldn’t get
a babysitter he let Madison go to mother’s house, where mother
stayed in her room and did not watch or discipline the kids.
Mother’s late husband was a good person who hung himself.
Before that, mother did not drink, she just smoked.
DCFS recommended the court grant father’s and Lori’s
petitions and deny mother’s and Arthur’s petitions, and order
individual counseling for Madison and joint counseling for
father and Madison. Father’s home was appropriate and DCFS
believed he had completed his programs, “or he would still be
on probation.” Father wanted the chance to raise Madison
and knew he would have to work on his relationship with her.
3. The hearing on the section 388 petitions
The juvenile court heard all four section 388 petitions at
a hearing on July 26, 2019, with father, mother, Arthur, and
Madison present and represented by counsel. Lori was also
present, and the court granted her petition to be relieved as
guardian.
Father’s counsel argued he had made marked improvement
and had completely addressed the issues in the 2012 dependency
case. He was no longer on probation, was gainfully employed
working for a union, and was raising two other children. The
court asked: “[T]hat’s a good thing that father’s circumstances
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have changed. But . . . how is it in this child’s best interest that
the guardianship be terminated and it be a change of placement?”
Counsel responded the original purpose of the guardianship was
permanency and stability for Madison, which father could now
provide. He had been in contact with Madison through Lori,
had visited, and “[t]hey have definitely been working to establish
their bond.” It was in Madison’s best interest to establish a
relationship with her two half-siblings.
Madison’s counsel disagreed. Father had not shown it was
in Madison’s best interest to be returned to him. She had been
living with Arthur for seven years (since 2012), academically she
was at the top of her class, all her friends were in Arizona, and
she wanted to stay with Arthur.
Mother’s counsel withdrew her section 388 request for
custody of Madison, and mother joined in Arthur’s request that
Madison remain with him.
At DCFS’s request, Lori testified she had cared for Madison
since she was three months old, and she and Arthur had joint
guardianship. They had discretion whether to allow mother or
father to visit, and there were several years when neither parent
had unsupervised contact with Madison. Lori had no safety
issues with father’s care of Madison, but had “educational safety
issues” about where she would go to school. Lori’s concern was
that Arthur let Madison spend the night with mother. When Lori
picked Madison up the next day, mother was drunk, they argued,
and a physical confrontation followed. Arthur was a very good
father and grandfather, he loved Madison, and if the court told
him not to allow Madison unsupervised contact with mother,
he would abide by the order. Asked what she thought was in
Madison’s best interest, Lori replied Madison wanted to go back
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to Arizona with Arthur, and she had no concerns if Madison was
not left alone with mother.
Lori had been in California with Madison for a month while
going through the divorce. Madison had her first two overnight
visits with father, which she seemed to enjoy. Madison and
father had a good relationship now. Father had visited Madison
in Arizona only once in seven years, and called once a month.
He provided no financial support.
Father testified he had visited once for Christmas when
Arthur and Lori first moved with Madison to Arizona, and the
visit went well. He tried to get in touch with Madison once a
week, but most of the time it was once a month. Father offered
financial support but Lori and Arthur said they could handle it
and did not want to put him in a bind. He wanted a chance to
be a father, to hear Madison say, “[T]hat’s my dad and I’m proud
of him.” He would allow her to visit Lori and Arthur. He knew
where Madison went to daycare, but did not know what school
she went to last year. Father’s young children were two and
almost one, and he had gone back to work after spending a year
at home with the two-year-old.
Father’s counsel asked the court to grant his section 388
petition. Father had showed a change of circumstances. He
had financial stability and the opportunity to parent two other
children, giving him the skills and tools to parent and raise
Madison. Father filed as soon as he was completely stable
and ready to take on a nine-year-old. He would encourage
and facilitate visits with both Lori and Arthur. DCFS did not
recommend the case be closed, so father would be supervised
as he began the transition with Madison.
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Counsel for DCFS agreed. Father had changed his
circumstances and had ameliorated his issues. Father had
Madison’s best interest at heart and had maintained a
relationship with her. His small children seemed to be safe
and doing well. It would be in Madison’s best interest to
transition to father’s home. Although Madison had lived in
Arizona for some time and attended school there, “she’s nine.
And while disrupting a child’s schooling is difficult and is going
to be a transition, at this point, it’s summertime and a new
school year will begin relatively soon. And it wouldn’t be
totally inappropriate for the child to begin a different school
environment next year with her father, given the changes and
the progress that he’s made.” Arthur’s section 388 petition
should be denied. Lori had testified she had concerns about
mother, and Arthur had allowed mother unmonitored contact
with Madison, who would therefore be at risk in Arizona.
If the court did grant Arthur’s petition, DCFS asked the new
guardianship papers require appropriate childcare, monitored
contact with mother, and no overnight visits.
The court stated: “The key word here [is], ‘stability.’ This
child has been stable. She’s doing well. And . . . some of the
adults are suggesting that we rip this child away from her home,
her community, her school because it’s in the best interest of
the parents, not for the child but for the parents. That’s what
I’m hearing. That’s not the standard.” The court commended
father for coming a long way, and repeated: “[B]ut that’s not
the standard. And the circumstances have changed, but I cannot
get to the next step and find that it’s in the best interest of this
child at this point today, given her age and circumstances.” The
court denied father’s section 388 petition, granted Lori’s petition
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terminating her guardianship, granted Arthur’s petition for
sole legal guardianship, and noted mother had withdrawn her
petition. Madison’s contact with mother was to be monitored by
Arthur “until you’re provided documentation that your daughter,
the mother, is fully rehabilitated and is not currently battling
with drug or alcohol addiction.” Lori and Arthur “have done a
decent job raising this child. And I think my job isn’t to interfere
with their judgment.” Visitation would be arranged between
Arthur and father: “I’m not going to get involved.” Madison
could spend half her summer with Lori, and if father wanted
to go to Arizona for an overnight visit with Madison, he could.
The final orders appointed Arthur as Madison’s sole legal
guardian, and ordered monitored visitation for mother until
Arthur had evidence she was sober and rehabilitated. Father
was awarded monthly unmonitored weekend visits from Friday
to Sunday in Arizona, including overnights, as arranged with
Arthur. Lori was awarded visitation for one half of the summer
vacation as arranged with Arthur.
Father filed a timely appeal. DCFS did not file a
respondent’s brief. We granted mother’s request for appointment
of counsel, and she filed a respondent’s brief.
DISCUSSION
We review the juvenile court’s denial of father’s section 388
petition for an abuse of discretion, and reverse only if the court’s
determination was arbitrary, capricious, or absurd. (In re
Jacob P. (2007) 157 Cal.App.4th 819, 832 (Jacob P.).)
“[A]lthough guardianship is 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. . . .
[N]othing precludes a parent whose parental rights have not been
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terminated from seeking to regain custody of their dependent
minors.” (In re Priscilla D. (2015) 234 Cal.App.4th 1207,
1215-1216.) Father had “ ‘the continuing right to petition the
[juvenile] court for a modification of any of its orders based upon
changed circumstances or new evidence pursuant to section 388.’
[Citation.] This includes the right to petition the court to
terminate guardianship.” (Id. at p. 1216.)
At the review hearings before a permanent plan is in place,
“there is a statutory presumption the child will be returned
to parental custody. [Citation.] The presumption ceases once
reunification services have terminated. At that point it is
presumed continued care is in the best interest of the child.
However, the presumption may be rebutted by the parent
showing circumstances have changed which would warrant
further consideration of reunification.” (In re Michael D. (1996)
51 Cal.App.4th 1074, 1086.) At the hearing on a section 388
petition, the parent has the burden to prove by a preponderance
of the evidence that there are changed circumstances that make
a change in placement in the best interest of the child. (In re
Priscilla D., supra, 234 Cal.App.4th at pp. 1216-1217.) This
is because “ ‘[a]fter the termination of reunification services,
a parent’s interest in the care, custody and companionship of
the child is no longer paramount. [Citation.] Rather, at this
point, the focus shifts to the needs of the child for permanency
and stability. [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, what is in the best interest of the child.’ ” (Jacob P., supra,
157 Cal.App.4th at p. 828.)
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The parties agree (and the court acknowledged) father
showed changed circumstances. But “a parent’s compliance with
the case plan is not a guarantee the child will be returned to
the parent,” because whether “it would be in the [child’s] best
interests to return . . . is a separate question.” (Jacob P., supra,
157 Cal.App.4th at pp. 830-831.) That separate question is the
only question before us, and we easily conclude the juvenile court
did not abuse its discretion in concluding it was not in Madison’s
best interest to be placed in Father’s custody.
Father argues he is Madison’s father, and placement
in his home would be more permanent and stable than
guardianship with Arthur. But that is true any time a parent
files a section 388 petition seeking to terminate a guardianship.
He points out he and Coelina have a two-bedroom apartment
where Madison could build her relationship with her two very
young half-siblings; he would pick her up at school aftercare;
and Coelina would be home during the summer. But that shows
only that father could provide a home and appropriate care for
Madison, which Arthur had provided for seven years in Arizona.
Father expresses safety concerns about Madison visiting mother
in Arizona. But those concerns were addressed by Arthur’s full
concurrence with the court’s order that mother’s visitation be
monitored, until he had documentation his daughter was sober
and fully rehabilitated.
Madison, nine years old and in Arthur’s care since she
was two, told the social worker she wanted to stay in Arizona
with Arthur. “[A]lthough a child’s wishes may be evidence
of what is in [her] best interest, they cannot be dispositive.”
(Jacob P., supra, 157 Cal.App.4th at p. 832.) Nevertheless, a
child’s expressed preference “constituted powerful demonstrative
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evidence it would be in [her] best interest” to honor that
preference. (In re Michael D., supra, 51 Cal.App.4th at p. 1087.)
And, as in Jacob P., the juvenile court did not base its decision
on Madison’s desire to stay in Arizona but the reasons for that
desire. (Jacob P., at p. 832.) The home nine-year-old Madison
had known for seven years was with Arthur and Lori, and she
was stable and doing well. Placement with father in California
would “rip this child away from her home, her community, [and]
her school” and destroy that stability.
The juvenile court reminded father the standard was not
his best interest, but Madison’s. As our colleagues in Division
Seven put it, “Appellant is looking at the facts from [his]
perspective not [the child’s] perspective. Appellant may have
ameliorated the problem leading to dependency on [his] own,
but only after [he] failed to complete the services offered by
the Department. [The child] had lived with his maternal
grandmother for four years and had limited contact with
appellant during that time, mostly by telephone. . . . [The child]
decided he preferred staying with [the maternal grandmother
and guardian] after visiting appellant.” (Jacob P., supra, 157
Cal.App.4th at p. 833.) The child’s twin brother was moving
to Colorado to live with the appellant parent, which made this
“a close question,” but the court did not abuse its discretion in
concluding it was not in the child’s best interest to terminate the
guardianship. (Ibid.) The question in this case is not as close.
The trial court did not abuse its discretion when it denied
father’s section 388 petition to have Madison returned to his care.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
LAVIN, Acting P. J.
DHANIDINA, J.
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