In re Amy T.

Filed 12/15/08 In re Amy T. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Siskiyou)

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Marilyn T., mother of the minors, appeals from the orders of the juvenile court at a status review hearing continuing the minors in foster care. (Welf. & Inst. Code,  366.3, subd. (d), 395.)^[1] As best we can ascertain from the opening brief, appellant is challenging various aspects of the hearing, including the accuracy of the social workers report, the courts exclusion of evidence and the evidentiary support for the findings made by the court. We affirm.

FACTS

The minors, Becky and Amy, both now 16, and Nicoles, now 13, were initially removed from appellants care in August 2001. Reunification services were terminated in February 2004, and the minors have been placed in long-term foster care with regular reviews ever since.

The current review reports for the September 2007 hearing stated that Becky and Amy were placed in the same home, having been moved there from prior separate placements, and were doing well. According to the reports, Nicoles was placed in Amys former foster home, appeared to have adjusted well there and wanted to stay in the placement. Becky continued to refuse to visit with appellant although Amy and Nicoles did visit her on at least a quarterly basis. Appellant had missed one visit and was angry she was not allowed to tape record her visits.

The social workers report stated appellant had twice violated the order restraining her from approaching the social worker. Appellant had also gone to Beckys doctors office and demanded copies of the minors medical records. In two months, appellant sent 60 e-mails to the system set up for her to contact the minors but sent none for the next two months. The reports recommended that the minors continue in the current plan of long-term foster care.

At the hearing, the court permitted appellant, who was represented by counsel, to address the court at length. Appellant complained about counsels representation because he had told her the evidence she wanted to present was not relevant to the issues before the court. The evidence consisted of tape recordings of discussions appellant had with a deputy sheriff and what appellant characterized as staged attempts to arrest her. The evidence was part of a showing appellant made in a petition for modification she had recently filed with the court on her own. Appellant also discussed what she characterized as fraudulent[] evidence in the social workers reports and previous pleadings, such as the petition for a restraining order that prevented her from approaching the social workers. Appellant also stated that the recent tape recording of discussions with a sheriffs deputy would support her claims that the sheriffs office had a vendetta against her and that the minors should never have been removed from her custody. Appellant told the court the tape also recorded an incident from February 2002 and the initial removal of the minors in 2001. After hearing appellants comments, the court agreed with counsel that the proffered evidence was not relevant to the issues before the court, i.e., the review of the minors status.

Appellants counsel contested two of the proposed findings, i.e., finding 3: Circumstances still exist which would justify the initial assumption of jurisdiction under Welfare and Institutions Code Section 300, or are likely to exist if court supervision is withdrawn[,] and finding 5: The permanent plan of placement in a foster home, and a specific goal of guardianship [are] appropriate for all three children. He argued there was perhaps some limited relevance to finding 3 in appellants videotape of an incident in February 2007, on the question of whether circumstances still exist to justify the initial assumption of jurisdiction, although the precise contents of the tape were unknown. Counsel stated he was aware of the adverse facts in the current report. Counsel asserted that the court could not make either of the contested findings, and the minors should be returned to appellants custody. Counsel observed that the issue raised by appellant, i.e., fraud in the initial removal, was previously litigated and ruled on by the court.

Appellant spontaneously addressed the court claiming that the statements in the adoption report that Nicoles wanted to stay in foster care and not return home were fraudulent and that other statements in the report were also obvious frauds. Upon questioning by the court, it appeared that appellant was not referring to the current review report but an earlier report for a different hearing. The court adopted the recommended findings and orders as amended in open court and set a review hearing.

DISCUSSION

I.

Appellant argues the court failed to conduct the proceedings in such a manner as to have the full facts before it to make rulings at the hearing, and did not consider the petition for modification she filed with its various attachments. (Cal. Rules of Court, rule 5.534(a).) She further asserts that the court did not advise her of her rights pursuant to California Rules of Court, rule 5.534(k) (formerly rule 5.534(j)) or separately consider her right to represent herself.

California Rules of Court, rule 5.534(k) requires the juvenile court to advise a parent of various hearing rights, including the right to assert the privilege against self-incrimination, to confront and cross-examine the social worker, to subpoena witnesses, to present evidence, to receive and inspect the reports and to receive documents filed with the court. No advisement occurred at this hearing. However, the rule does not require the parent be advised at each hearing and appellant does not claim that the court has never provided such an advisement during the course of the dependency. In any case, a violation of a requirement to give rights mandated by a nonconstitutional rule of procedure is subject to a harmless error analysis. (In re Monique T. (1992) 2 Cal.App.4th 1372, 1377-1378.) Appellant was not denied her rights. She was represented by counsel at the hearing and had an opportunity to address the court directly regarding the evidence she wished to present. The court found the evidence was not relevant to the current issues. There is nothing in the record which suggests the failure to formally advise appellant of her hearing rights was prejudicial to her, and appellant does not demonstrate any prejudice.

Finally, appellant did not explicitly raise the issue of self-representation. The juvenile court was not obliged to consider it sua sponte and we may not address the issue for the first time on appeal. (In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502.)

II.

Appellant contends the report for the hearing contains false and misleading statements. The report was not challenged at the hearing and this argument has been forfeited. (In re Christopher B. (1996) 43 Cal.App.4th 551, 558; In re Dakota S., supra, 85 Cal.App.4th at pp. 501-502; In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.) Appellants brief lists specific statements in the social workers report with which she disagrees. Her disagreement is based upon facts that purportedly occurred after the report was filed with the court and after the review hearing was held.^[2] Circumstances that allegedly occurred after the preparation of the report do not render the report false, misleading or fraudulent at the time it was made. With the exception of historical facts, the facts in the report relate only to the time period of the review under consideration. Subsequent changes of circumstances may be brought to the trial courts attention through appropriate procedures. ( 388.) Accordingly, counsel cannot be faulted for failing to challenge the current report. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694 [80 L.Ed.2d 674, 693, 698]; In re Emilye A. (1992) 9 Cal.App.4th 1695, 1711; People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) Indeed, from our review of the record, we conclude the report was not fraudulent.

To the extent that appellant is challenging the content of earlier reports, the facts from these reports were not at issue in the current hearing. Simply stated, her challenge to such reports is untimely and, in any event, appear to have no merit.

III.

Appellant contends the court failed to comply with the requirements for a hearing to review long-term foster care placements and improperly excluded her evidence.

If the child is in a placement other than the home of a legal guardian and jurisdiction has not been dismissed, the status of the child shall be reviewed at least every six months. ( 366.3, subd. (d).)

At the review hearing, the court shall inquire about the progress being made to provide a permanent home for the child, shall consider the safety of the child, and shall determine several factors, including: the continuing necessity for, and appropriateness of, the placement; the appropriateness and extent of compliance with the permanent plan for the child and efforts to identify a prospective adoptive parent or legal guardian; the adequacy of the services provided to the child; the extent of progress the parent has made toward alleviating or mitigating the causes necessitating placement in foster care; the relationship of the siblings; and why siblings are not placed together. ( 366.3, subd. (e).)

The report addressed the circumstances of each child, the necessity for their continued placement in foster care due to the lack of an adoptive or guardianship placement, the lack of progress made by appellant to address the reasons for removal as evidenced by her continuing difficulties with appropriate conduct, the relationship of the siblings and its maintenance through ongoing visits, and the relationships of the minors to their foster care providers. The court admitted the report into evidence, read and considered it. The rule does not require that the court state its findings on the record. In any case, the findings and orders adopted by the court address the relevant factors set forth in the rule.

At a status review hearing, [i]t shall be presumed that continued care is in the best interests of the child, unless the parent . . . prove[s], by a preponderance of the evidence, that further efforts at reunification are the best alternative for the child. In those cases, the court may order that further reunification services to return the child to a safe home environment be provided to the parent . . . for a period not to exceed six months. ( 366.3, subd. (e).)

The subdivision makes it clear that the hearing is to assess the status of the minor and the progress, if any, toward a permanent placement. When a parent has failed to reunify with the minor, the presumption is for continued care unless the parent can demonstrate that further efforts at reunification are a better alternative. The social workers report addressed all relevant factors relating to the status of each minor. Absent evidence that renewal of reunification was appropriate, the court was required to apply the presumption of continued care.

Appellant made no effort to prove renewed reunification should be considered. Indeed, she limited her proffer of evidence to issues of the initial removal and sought only return of the minors. The court properly concluded such evidence was not relevant to the issues. In contrast to appellants proffer, the social workers report contained evidence of appellants continued volatility and inconsistent interaction with the minors. The evidence supported the courts findings and orders of continued care.

DISPOSITION

The orders of the juvenile court are affirmed.

CANTIL-SAKAUYE , J.

We concur:

SCOTLAND , P. J.

NICHOLSON , J.

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^[1]Hereafter, undesignated statutory references are to the Welfare and Institutions Code.

^[2] For example, appellant cites page four of the social workers report where it is written that Becky does not want to visit with her mother though 09/20/07 [10 days after the hearing] Becky, Amy, Nicoles, and Foster Family Agency Social worker T[.] C[.] visited with appellant for one hour, and disclosed much shocking information which discredit Mr. Gails report at the least.