In re A.H.
Filed 4/24/13 In re A.H. CA2/4
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 FOUR
In
re A. H., a Person Coming Under the Juvenile Court Law.
B240300
(Los Angeles County
Super. Ct. No. CK77960)
LOS
ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
A.
A.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of
County, Albert Garcia, Juvenile Court Referee. Affirmed.
Nancy Rabin Brucker, under appointment
by the Court of Appeal, for Defendant and Appellant.
John F. Krattli, County Counsel, James
M. Owens, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for
Plaintiff and Respondent.
_____________________________
INTRODUCTION
A. A. (Mother) is the birth mother of A. H. (the child), and
the daughter of Nichole R. (maternal grandmother). On March 14, 2012, at a Welfare and Institutions Code
section 366.26 hearing,
name="_ftnref1" title="">[1] the juvenile court terminated Mother’s
parental rights. At the same hearing, the
court denied the maternal grandmother’s petition under section 388 to have the
child placed with her. Mother appeals
from both orders of the juvenile court.
She contends (1) that she has standing to challenge the denial of the
maternal grandmother’s section 388 petition, (2) that the juvenile court erred
by failing to provide the maternal grandmother with a full
motion, and (3) that the decision to terminate her parental rights should be
reconsidered de novo on remand. Finding
no error, we affirm.
FACTUAL AND PROCEDURAL
HISTORY
In 2009, Mother, then 16, lived with the maternal
grandmother. In June 2009, the maternal
grandmother left for an urgent trip to Texas.
She took the year old child with her, and left Mother at home with
Mother’s 14-year-old godsister. During
the three day trip, Mother did not maintain communication with the maternal
grandmother, failed to do her chores, and rented movies without
permission. When the maternal
grandmother returned on June 19, 2009, she gave the child to Mother to
change and bathe. Shortly thereafter,
the maternal grandmother questioned Mother about where she had been for the
past three days. Mother started giving
excuses, and the maternal grandmother began hitting her. Mother then left the apartment and ran
away. The maternal grandmother found the
child sitting in a bathtub partially filled with water. The maternal grandmother finished bathing the
child, dressed her, fed her, and laid her to sleep.
On June 26, 2009, the
(DCFS) filed a section 300 petition on behalf of the child, alleging that
Mother had placed the child in a detrimental and endangering situation when she
left her in the bathtub without adult supervision. In the petition, the social worker reported
that Mother had stated she was beaten by the maternal grandmother, and that
Mother feared the maternal grandmother would gain custody of the child. The social worker noted that DCFS’s records
indicated the maternal grandmother was a dependent of the juvenile court as a
child, and had Mother at the age of 15.
At a July 14, 2009 hearing, the juvenile court
sustained the allegation in the section 300 petition that Mother had placed the
child in a detrimental and endangering situation. The court set the matter for a
the child a dependent of the juvenile court under section 300, subdivision
(b). The court ordered the child removed
from Mother’s custody and placed in a foster home, ordered family reunification
services, and granted the maternal grandmother monitored visits with the
child.
At the September 17, 2009 progress hearing, the social worker
reported that Mother and child had been placed with a foster mother. At the same hearing, the juvenile court noted
the Evidence Code section 730 evaluation for the maternal grandmother
recommended that she receive psychiatric
treatment for her bipolar disorder.
In the January 12, 2010 status review report, the social
worker reported that Mother was not complying with the family reunification
case plan. Mother also had told the
social worker she did not want to return to the maternal grandmother’s
home. In the April 22,
2010 interim
review report, the social worker reported that Mother had informed the social worker
she did not want to return to the maternal grandmother’s home at that
time.
On May 13, 2010, Mother filed a section 388 petition
requesting the child be returned to her custody. The juvenile court denied the petition,
finding it would not be in the best interest of the child.
On August 5, 2010, the maternal grandmother had a
conflict with the social worker related to her monitored visits with the
child. That day, Mother told the social
worker she wanted the visits with the maternal grandmother stopped due to “the
issues that the maternal grandmother has been causing and the recent incident
that potentially put the current placement at risk.†At the August 11, 2010 hearing, the juvenile court granted
monitored visits for the maternal grandmother with a DCFS-approved
monitor.
In the December 17, 2010 status review report, the social
worker reported that Mother disclosed she had been arrested for petty theft in
October 2010. On January
12, 2011,
Mother called the social worker, stating she had run away after a verbal
altercation with her foster mother.
Mother’s probation officer informed the social worker that Mother had
not shown up for her delinquency hearing and that an arrest warrant had been
issued for her.
At the February 23, 2011 section 366.22 hearing, the juvenile
court found that Mother was in partial compliance with the case plan, and
terminated family reunification services.
The court granted DCFS discretion to liberalize the maternal grandmother’s
visits. It also ordered DCFS to make
best efforts to place the child in an adoptive home.
In the April 20, 2011 interim review report, the social
worker reported that the child had been placed in a foster home with Ms. S.,
who was interested in adopting her. The
social worker noted the child had a bond with Mother and the maternal
grandmother, the latter of whom had weekly unmonitored visits. The social worker also noted that several
family members, including the maternal grandmother, were interested in
providing a permanent home for the child.
The maternal grandmother lived in a two bedroom residence, attended
community college, and was receiving Social Security disability benefits for
mental health issues. Because of her
criminal history, which included felony convictions for possessing a
narcotic/controlled substance and burglary, the maternal grandmother would
require exemptions for placement of the child.
Over the next few months, the social worker reported that
Mother continued to run away. The social
worker also reported that the maternal grandmother had been denied home
approval pursuant to the Adoptions and Safe Family Act (AFSA), but that the
maternal grandmother intended to appeal.
At the September 14, 2011 review of permanent plan hearing,
the juvenile court found that the planned permanent living arrangement with Ms.
S. and the specific goal of adoption were appropriate. In the October 20, 2011 section 366.26
report, the social worker reported the child had a strong bond and attachment
to Ms. S., calling her “mommy.â€
On December 14, 2011, the maternal grandmother filed a
section 388 petition, requesting the court reconsider placing the child in her
home as Mother’s parental rights were going to be terminated. In the petition, the maternal grandmother
stated she had filed a grievance related to the denial of home approval with
DCFS on August 18, 2011, but had not received a response within the specified
time period. She complained that the
social worker had failed to report she was awaiting her appeal, and that she
had been granted an exemption for her criminal background on June 8, 2011. The court set a hearing on the maternal
grandmother’s section 388 petition for March 14, 2012.
In the March 12, 2012 section 388 response, DCFS recommended
that the juvenile court deny the maternal grandmother’s section 388
petition. In the response, the social
worker reported that the maternal grandmother’s appeal of her AFSA denial had
been heard at the management level, and had been scheduled to be heard at the
second management level. The social
worker noted that the child had never been placed with the maternal
grandmother. The social worker stated
she did not observe a bond between the maternal grandmother and the child since
the child was placed with Ms. S. The
social worker recounted several visits by the maternal grandmother during which
the child appeared unhappy or uncomfortable.
The maternal grandmother “would be late returning the child and the
child would be wet, soiled and very tired.â€
After one particular visit, the child reported that she had been bitten
by a dog, but the maternal grandmother did not mention the incident to the
social worker. The social worker also
reported that the maternal grandmother recently had been in a car accident and
was without a car for several weeks.
Without informing DCFS, the maternal grandmother had friends and
neighbors transport the child during the visits. After Ms. S. informed DCFS, the social worker
had to remind the maternal grandmother that anyone transporting the child was
required to undergo a criminal background check. As a result, DCFS changed the maternal
grandmother’s visits from unmonitored to monitored.
In the March 14, 2012 last minute information for the court,
the social worker reported that during a March 9, 2012 visit, the maternal
grandmother had made inappropriate remarks to the child, such as saying that
the child’s foster family was not her family and that Ms. S. was not her
mother.
On March 14, 2012, the juvenile court held a section 366.26
hearing. When reminded of the maternal
grandmother’s pending section 388 petition, the court indicated it would rule
on the petition. The juvenile court
referee noted that he had read the documents, and admitted the March 12, 2012
section 388 response and the March 14, 2012 last minute information. Mother joined in the maternal grandmother’s
section 388 petition. The child’s
counsel joined DCFS’s recommendation to deny the section 388 petition. The juvenile court asked the maternal
grandmother if she had anything to say.
The maternal grandmother said, “Yes.â€
The juvenile court stated, “Keep it short. You can come up.†The maternal grandmother said:
“I know that I’m probably at a long shot because of
what I’ve been told, the past history here in this courthouse and because of
the 2009 petition that my daughter filed against me. However, I have done everything that the
court asked me to do as far as rehabilitating and trying to reunify with both
children. I am still here for my
daughter, and I believe that the Department has been purposely sabotaging me as
far as visits with my granddaughter and, you know, penalizing me because of the
388 that I filed, trying to get my granddaughter to return back home. I’ve never been a danger. I never did anything to my granddaughter. She’s closely bonded to me. I have a therapist calling me. They are now saying she’s seeing a therapist,
this three-year-old child, who was a happy child. She had never had any problems. They are claiming she has anger outbursts
because of the sporadic visits; that she sees me and they cancel visits. They’ve used me to try to find my daughter,
accuse me of having my daughter live with me when she had never been to my
home. They then tried to allow her to
visit with the child in my home.
“And, recently, I was -- someone hit my car. I had been on unmonitored visits for over a
year, for eight hours every Friday.
Then, because of it, being hit by someone else, which I didn’t have any
control over, I asked to be accommodated, to have the pickup and drop-off place
somewhere more accessible where I can catch a bus. They refused to do that. They, consequently, cancelled my --
terminated my unmonitored visits and put me on monitored -- back on monitored
visits for one hour every other week, when I was seeing her every week for
eight hours. I did nothing to, you know,
warrant this. I feel penalized because I
did nothing. I tried to contact the
worker, the F.F.A. [foster family agency] worker, to try to resolve the
situation so that my transportation, you know -- we could continue with the
visits as they were being done and to no avail.
I got no help. As of January, my
visits were, like I said, changed from the unmonitored to the monitored, which
I felt was totally unfair. The child is
very bonded to me. She knows who I
am. She has a good relationship with
me. I’m willing to do whatever, you
know, else I need to do to prove that I’m not a danger to my granddaughter and
so that my family is not split up anymore and goes through any more of these
bad cycles that it already has been. I
was a minor when my daughter was first initially taken from me. I was [the]
exact . . . same age she was when she had my
granddaughter. And a lot of this is
stuff that is being repeated. But then I
didn’t really have a chance and didn’t know too much about the court
system. Now I’m more aware, and it
seems, like, kind of the same thing is going on with my daughter even though
she failed to do her part to get the child back in her custody. I’m just trying to get my family back
together so that we can go on and grow and become healthy as we should be. I don’t want to take up too much of your
time. So that’s about it.â€
The juvenile court asked the maternal grandmother, “Is that
it?†The maternal grandmother replied,
“Yes, sir.†Later, the maternal
grandmother stated, “Sorry. I have one
last thing. I did get a grievance
hearing last week on the 8th, which I filed for . . . way
back in August of last year, and I just finally got the grievance. The gentleman said it would take two weeks
for the response to that hearing that I had.â€
The court denied the section 388 motion, finding that the maternal
grandmother had not met her burden of showing that there had been a change of
circumstances.
The juvenile court then held the section 366.26 hearing on
terminating Mother’s parental rights.
The court admitted several DCFS reports and heard from the parties. Mother objected. The child’s counsel joined with DCFS in
asking that parental rights be terminated.
The court terminated parental rights.
Mother filed a timely appeal.
DISCUSSION
On appeal, Mother contends (1) she has standing to challenge
the denial of the maternal grandmother’s section 388 petition because she was
aggrieved by the decision; (2) the juvenile court did not grant the maternal
grandmother a full evidentiary hearing, as the court failed to allow the
grandmother to testify under oath, to inquire whether the grandmother had
brought witnesses, or to allow her an opportunity to cross-examine the social
worker who prepared the DCFS reports; and (3) because the matter must be
remanded on the maternal grandmother’s section 388 petition, the order
terminating her parental rights must also be reconsidered de novo by the
juvenile court on remand.
A. Order Denying
Maternal Grandmother’s Section 388 Petition
In In re K. C.
(2011) 52 Cal.4th 231, the California Supreme Court noted that “only a person
aggrieved by a decision may appeal.†(
one whose rights or interests are injuriously affected by the decision in an
immediate and substantial way, and not as a nominal or remote consequence of
the decision.†(Ibid.) The court held that a
parent whose parental rights have been terminated and who does not challenge
that termination lacked standing to appeal an order denying placement of the
child with a grandparent. (
terminating parental rights confers standing to appeal an order concerning the
dependent child’s placement only if the placement order’s reversal advances the
parent’s argument against terminating parental rights.†(Id.
at p. 238.) Thus, in
Cal.App.4th 1042, the appellate court held that the Mother had standing to
appeal an order denying a grandparent’s section 388 petition to place the child
with the grandparent, which was entered prior to the order terminating her
parental rights. The appellate court
reasoned that “placement of a child with a relative has the potential to alter
the juvenile court’s determination of the child’s best interests and the
appropriate permanency plan for that child, and may affect a parent’s interest
in his or her legal status with respect to the child.†(Id.
at p. 1054.)
Here, Mother objected to the termination of her parental
rights by the juvenile court. In
addition, the reversal of the placement order could advance Mother’s arguments
against terminating her parental rights, as she might have retained her
parental rights had the maternal grandmother been granted custody and decided
to become the legal guardian of the child, instead of adopting her. Whether the trial court would have granted
custody, or whether the maternal grandmother would have sought legal
guardianship is not relevant, as “[w]e liberally construe the issue of standing
and resolve doubts in favor of the right to appeal.†(In re
Esperanza C., supra, 165
Cal.App.4th at p. 1053, citing Ajida Technologies, Inc. v. Roos Instruments,
Inc. (2001) 87 Cal.App.4th 534,
540.) In short, Mother has standing to
challenge the denial of the maternal grandmother’s section 388 petition.
At the hearing on the maternal grandmother’s section 388
petition, the juvenile court stated it had read the petition. The court admitted the responsive documents
filed by DCFS. The court heard from the
interested parties, including the maternal grandmother. The grandmother never indicated she had
additional documents she sought to have admitted, or had additional witnesses
whose testimony she wished to present; nor did she indicate a desire to
cross-examine the social worker who prepared the DCFS reports. Moreover, it is unclear how testifying under
oath would have assisted the maternal grandmother, as the denial of the section
388 petition was not based upon credibility issues. On this record, the maternal grandmother was
not denied her right to a full evidentiary hearing on her section 388 petition. Even had the court erred, we would find any
error harmless, as the court did not abuse its discretion in determining that
the maternal grandmother had failed to demonstrate changed circumstances. In short, the juvenile court did not err in
denying the section 388 petition.
B. Order
Terminating Parental Rights
Mother also contends the order
terminating her parental rights should be reversed, as the juvenile court erred
in denying the maternal grandmother’s section 388 petition. Because we conclude the juvenile court did
not err in denying the maternal grandmother’s section 388 petition, the order
terminating parental rights is affirmed.
DISPOSITION
The orders are affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA,
J.
We concur:
WILLHITE,
Acting P. J.
SUZUKAWA, J.
name="_ftn1" title="">[1] All
further statutory citations are to the Welfare and Institutions Code, unless
otherwise stated.
