In re J.Z.
In re J.Z.
Filed 8/18/08 In re J.Z. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
In re J. Z., a Person Coming Under the Juvenile Court Law. |
B208150
(Los Angeles County
Super. Ct. No. CK33608) |
EBONY J.,
Petitioner,
v.
SUPERIOR COURT OF THE COUNTY OF LOS ANGELES,
Respondent. | |
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Real Party of Interest. | |
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Jan Levine, Judge. Writ denied.
Law Office of Timothy Martella, Eliot Lee Grossman, and Hans Chen, for petitioner Ebony J.
No appearance for Respondent.
Office of the County Counsel, Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Real Party in Interest.
Ebony J. (mother), mother of J. Z., petitions for extraordinary relief pursuant to California Rules of Court, rule 8.452. She seeks review of an order denying a Welfare and Institutions Code section 388 petition, requesting reinstitution of reunification services that were terminated in 2006, and setting a permanent plan hearing under Welfare and Institutions Code section 366.26.[1] We deny the petition.
FACTS AND PROCEDURAL HISTORY
Mother had a longstanding problem with drug addiction, and while she sometimes rehabilitated, she also relapsed. Between 1994 and 2003 mother was the subject of numerous referrals to the Department of Children and Family Services (DCFS) for alleged neglect and abuse of her two older children, and twice received family maintenance services.[2] On September 2, 2003, DCFS received information that mother had given birth to J. Z., and that both had tested positive for cocaine. DCFS detained J. Z. at the hospital, then placed her in foster care. It also filed a section 300 petition alleging mother failed to protect J. Z. and placed J. Z. at risk, both by failing to provide for one of the older children and by resuming drug use.
The juvenile court approved the detention and sustained the section 300 petition. J. Z. was placed with her paternal aunt (aunt) when she was one month old. Mother was provided with family reunification services for the following 12 months. During that time she continued her transience and drug use, failed to comply with her case plan, and only sporadically visited J. Z. As a result, on September 22, 2004, the juvenile court terminated reunification services and ultimately set a permanent plan of legal guardianship for J. Z. with her aunt. Although the aunt had wanted to adopt J. Z., the aunts inability to document a prior divorce led to a recommendation of legal guardianship.
On January 20, 2008, mother applied to the juvenile court pursuant to section 388 for a change in J. Z.s permanent plan. Mother indicated that during 2007, she completed a drug rehabilitation program and parenting classes, obtained permanent housing, and had begun visiting with J. Z. Mother asked that the court reinstitute family reunification services with the goal of placing J. Z. back with her. Mother alleged it would be in J. Z.s interest to reunite because, as a result of mothers visits, a bond had developed between the two.[3] Finding that the best interests of the child might be promoted by the requested order, the juvenile court set a hearing to consider the request. It ordered DCFS to prepare a report addressing the allegations of mothers petition.
DCFS acknowledged that mother was successfully complying with the case plan that had been set out for her. It did not believe, however, that it was in J. Z.s best interests to be removed from her placement with the aunt. DCFS noted that J. Z. was thriving with the aunt. She had lived with the aunt since infancy, and was well-bonded with the aunt. She referred to the aunt as mommy. The aunt still wanted to adopt J. Z. J. Z. stated that she was happy and did not want to live anywhere but with the aunt. DCFS further noted that while mother had visited J. Z., the visits were inconsistent, and J. Z. had not bonded with mother. In fact, mother had not visited J. Z. in the three months preceding preparation of the report. Before there was any consideration of placing J. Z. with mother, DCFS recommended more consistent visits and conjoint counseling to transition J. Z. into any such change.
The hearing of the section 388 petition went forward. Mothers counsel asked that mother be allowed to testify as to her completion of court-ordered programs, her visits with J. Z., and the reasons for any lack of visits. Because DCFS was willing to stipulate to a change of circumstances, counsel for mother agreed that such testimony would be unnecessary, provided the court would also set a liberal visitation schedule for mother to pursue. The court thereupon explained to mother that reinstating reunification services immediately would only give her six months to establish a bond with J. Z., while reinstituting visitation would allow a bond to develop between her and J. Z. that would permit future reunification services to be successful. The court also allowed mother to make a statement as to her attempts to visit J. Z., her desire for some counseling, and her agreement to participate in the proposed visitation plan. Although it was inclined to deny the section 388 petition because the proposed change was not in J. Z.s best interests at that time, the court agreed to continue the hearing for approximately one month to allow mother, the aunt, and DCFS to set up a regular visitation schedule to see how visits with J. Z. would go. Counsel for mother repeatedly consented to that arrangement.
Just before the continued hearing, DCFS filed a report indicating that three visits had been scheduled in the intervening period. Mother attended the first visit. J. Z. initially refused to interact with mother, but did so once the aunt indicated it was all right. Nevertheless, J. Z. was not very talkative, and became nervous when the aunt left the visit to wait in her car.[4]Mother missed the second visit, later reporting that she was unable to change her work hours to accommodate it. The third visit was better. Mother attended, the aunt stayed for the duration, and J. Z. was more talkative and played with mother. Still, DCFSs opinion that it would be detrimental to J. Z. to remove her from the paternal aunts care remained unchanged. It recommended continued visits to establish a bond between J. Z. and mother before any change in placement took place.
Finding that the attempted visitations did not succeed, the juvenile court then reiterated its earlier conclusion that the modification proposed by the section 388 petition was not in J. Z.s best interests, and so denied the petition. The court heard mothers complaints that the locations of the visits were inconvenient for her, and directed DCFS to continue setting visits for mother but at a more convenient location. Because the aunt expressed her interest in adopting J. Z., DCFS then asked the court to set a section 366.26 hearing, which it did. This petition followed.[5]
DISCUSSION
Mother asserts that the juvenile court violated her statutory and constitutional rights by refusing to hold a hearing on her section 388 petition. Mothers contention is refuted by the record. In fact, the court found that the section 388 petition was sufficient to warrant a hearing, set a hearing, and conducted the hearing in two sessions, permitting mother time in the interim to visit with J. Z. and demonstrate a bond between the two in support of her petition. Mother suggests that she was nevertheless denied a meaningful hearing because the court did not take her sworn testimony, and did not let her attorney argue the petition. But the record shows that mothers counsel was allowed to participate fully in the hearing, that he expressly agreed to forego mothers testimony, and that he never asserted a need to further argue the merits of the petition. Moreover, the court permitted mother to make a statement to the court regarding her efforts to visit with J. Z. Although not in the form of sworn testimony, the statement provided mother with an opportunity to express her concerns to the court. In view of the record as a whole, mother cannot demonstrate that she was deprived of a meaningful hearing. (See In re Edward H. (1996) 43 Cal.App.4th 584, 591.) Additionally, the parties had stipulated as to a change of circumstances. The material before the juvenile court included mothers contentions regarding her bonding with the child. There is no showing that her proposed testimony would have added anything to her stated position. Thus, the juvenile court did not abuse its discretion, even if it denied a hearing. (In re Mary G. (2007) 151 Cal.App.4th 184, 205; In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
Mother goes on to complain that the juvenile court abused its discretion in denying her section 388 petition. She suggests that there was nothing indicating reinstituting reunification services would be detrimental to J. Z. But lack of detriment is not the relevant standard. The burden of proof was on mother to demonstrate that reinstituting reunification services would promote J. Z.s best interests. ( 388, subd. (c); California Rules of Court, rule 5.570(h)(1); In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) Given J. Z.s lifelong residence and bond with the aunt, as well as mothers inconsistent visitation, even during the period in which the hearing was continued, and J. Z.s tentative behavior in mothers company, mother cannot show that it would be in J. Z.s best interests to alter the permanent plan. She does not show that the trial courts ruling was an abuse of discretion, which is the standard of review. (In re Aaron R. (2005) 130 Cal.App.4th 697, 705.) Moreover, mothers counsel acquiesced to the courts suggestion for increased visitation in order to provide J. Z. with a comfort level in mothers company that might lead to meaningful reunification efforts in the future. Mother cannot complain now that the juvenile court followed that plan, rather than reinstituting reunification services immediately.
DISPOSITION
The petition for extraordinary relief is denied. This opinion shall become final immediately upon its filing. (Cal. Rules of Court, rule 8.264(b)(3).)
MOSK, J.
We concur:
ARMSTRONG, Acting P.J.
KRIEGLER, J.
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[1] All further statutory references are to the Welfare and Institutions Code.
[2] Though mother has four children, only J. Z. is the subject of this petition. Accordingly, only the facts relevant to J. Z. will be set forth here.
[3] In her section 388 petition, mother referred to a December 26, 2007 status report prepared by DCFS regarding another of mothers children, indicating that mother was complying with her case plan. Because the report was not included in the record here, mother made a motion to augment the record with the report, her second motion to augment after the record in this matter was filed. But DCFS stipulated to mothers changed circumstances as documented in the report, so it is not necessary to augment the record yet again with that report. Accordingly, mothers second motion to augment is denied.
[4] The aunt and mother were not comfortable together at the visit, and did not communicate.
[5] County counsel, on behalf of DCFS, moved to dismiss the petition because it was initiated by way of a Notice of Appeal, rather than a Notice of Intent to File Writ Petition pursuant to California Rules of Court, rule 8.450(e). However, because the Notice of Appeal was filed within the time limits set by California Rules of Court, rule 8.450(e), and was processed as though it were a Notice of Intent to File a Writ Petition, we conclude there is no prejudice to the parties in proceeding with consideration of the petition. Accordingly, the motion to dismiss is denied.
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