In re Athena H.

Filed 8/5/08 In re Athena H. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

In this fourth appeal in this dependency proceeding, Cynthia H., the grandmother of minors Athena H. and Israel P., contends the juvenile court violated her due process rights and abused its discretion when it temporarily suspended her visitation with the children. We affirm.

BACKGROUND

We incorporate by reference our prior opinions in this case, which chronicle the factual background and extensive history of these proceedings. (In re Athena H. (Jan. 22, 2007, A109735, A112506, A111434, A112930, A115422) [nonpub. opn.] review den. May 16, 2007, S150622 (Athena I); In re Athena H. (June 27 2007, A114477) [nonpub. opn] (Athena II); In re Athena H. (Sept. 7, 2007, A116610) [nonpub. opn.] (Athena III).)^[1] The following background discussion in this opinion will focus on the juvenile courts hearings conducted on June 11, July 16, and August 13, 2007.

June 11, 2007

A review hearing was held on June 11, 2007, shortly before Cynthia filed the Welfare and Institutions Code^[2]section 388 petition at issue in this appeal. The Departments social study for that hearing reported that both children considered their foster placement to be their home and wished to be adopted by their foster parents, who were committed to adoption. Israels behavior had improved dramatically after visitation with his grandparents was terminated in October 2006. Athena had been performing well in school, but after visits with her grandparents shortly before the review hearing, she had missed homework assignments, lied about her schoolwork, and acted out on the playground. The childrens foster mother said after a visit with grandparents in May 2007, Athena returned home angry and upset because her grandfather told her  that hes getting married to get money so he can get the kids back. 

Because of these reports, the Department reduced Cynthias two-hour monthly visit to a one-hour supervised monthly visit. The social worker expressed concern that Cynthia continued to blame former social worker Connie Atteridge for ruining the childrens lives, and was unable to place the childrens well-being ahead of her own interests.

The June 11, 2007, review hearing was continued to July 16, 2007, to allow parties an opportunity to assess the Departments compliance with Indian Child Welfare Act (ICWA). On July 10, 2007, Cynthia filed two section 388 petitions (one for each child) seeking (1) to resume visits with Israel and increase visits with Athena; and (2) to replace the childrens attorney, Robert Wiley, with new counsel. The JV-180 Judicial Council forms she used contain no information on pages provided for the courts determination as to whether the petitions set forth a prima facie case and therefore merited a hearing.

July 16, 2007

On July 16, 2007, the court confirmed with counsel that the remittitur had not yet issued in Athena II, which reversed an order denying Cynthias first request for de facto parent status and conditionally reversed, pending compliance with ICWA, the juvenile courts denial of her first section 388 petition seeking visitation.^[3] The Department admitted it had not yet complied with ICWA notice requirements and requested a further continuance. Extensive discussion between court and counsel followed concerning visitation, and some confusion was expressed regarding the effect of Athena II on visitation and whether visitation was properly before the court since the remittitur had not yet issued. The childrens attorney said he had abandoned his initial opposition to visitation between Cynthia and Athena after conferring with appellate counsel and reading therapists reports, and asked the court to allow visitation with both children. The Department observed that Cynthia was already visiting with Athena, but that first there would have to be an evidentiary hearing to assess whether resumed visitation would affect Israel adversely.

Turning to Cynthias section 388 petitions, the court observed that new court clerks had accepted the petitions without first presenting them to a judicial officer to determine whether they set forth a prima facie case warranting an evidentiary hearing. (See  388; In re Aljamie D. (2000) 84 Cal.App.4th 424, 432-433.) It nevertheless set the petitions for hearing on August 13, 2007. The childrens attorney offered to withdraw from the case in light of this courts criticism of his performance in Athena I, but the trial court declined the offer.

The Department filed an addendum report on August 10, 2007, addressing Cynthias petitions. It recommended that the court terminate all visitation with the maternal grandparents due to detriment to emotional stability and permanency placement of the children, but asked that if visits were continued they should be supervised, for only one to two hours each month, and the grandparents should be ordered not to discuss the topic of the children coming to live with them. The foster mother reported that after visits with her grandparents on June 20 and July 10, 2007, Athena withdrew from her foster family, appeared depressed, and did not act like her usual smiling self. After the July visit she wet her bed. Adoptions Specialist Kim Costa believed visitation was detrimental to the children because (1) Cynthias plan to actively pursue custody indicated she was unlikely to give the children the support they needed; (2) Israels negative behaviors escalated after visits; (3) Athena was reacting to visits with extended periods of withdrawal, despondency and irritability; and (4) increased levels of stress and conflict associated with the visits was a risk factor for the childrens genetically heightened risk for schizophrenia.

August 13, 2007

The hearing reconvened on Monday,August 13, 2007. Cynthia requested a continuance until October 22, 2007, because she had only received the Departments addendum report two and a half days before the hearing.^[4] Both the Department and Mr. Wiley opposed the request because Athena and her foster mother travelled a considerable distance in order to testify. Counsel for the childrens mother also objected, and said the visitation issue should be decided immediately. The Department argued that Cynthia had no standing to present evidence or cross-examine witnesses because she would not have de facto status until the remittitur issued in Athena II. The childrens attorney asked to exclude Cynthia from the courtroom during Athenas statement because Athena wished to privately address the court.

The court agreed to proceed with the foster mothers testimony and Athenas statement. However, it made the following offer for Cynthias benefit: And if the grandmother needs further time on another date to otherwise respond to the Departments recommendation and the state adoptions recommendations, we can set a second date to do that. She will be excluded during the statement from the child. However, shell be given an opportunity to participate in any testimony from the foster mother.

After Cynthia was excluded from the courtroom, Athena told the judge: Ive been having feelings that my grandparents and mom are going to shoot me and if its okay I will like to have no further visits with my grandparents. Because at the last two visits my familys been saying Ive been acting weird and because of the stuff that was being said at the visits. And at the last visit my grandma was saying that she was showing me pictures of my family saying how much they loved me and how much they want me to keepand how much they want me to go with my grandpaI mean my grandma. And so shes basically saying that she wants to adopt me and I didnt feel comfortable with that because Id like to be adopted by the family Im with right now.

Three letters written by Athena were admitted. In the first, addressed to whom this may concern, Athena wrote: I love my grandma but I do not wish to live with her. I have a Mom that loves me cares for me and buys me clothes. I have a dad that works but still has time for his family. I also have brothers and sisters all different ages and we all get along so please do not move me. [] From, Athena [].

The second letter, addressed Dear Grandma, Grandpa, said: I now you both love me a lot. And I love you both to but. If you continue to put in appeales Im never going to be HAPPY I love it. Where I am now you grandpa never been to any of my birthdays the only birthday I remember you at is my 6th b-day. Grandma I now your crying but you both need to be strong for what Im about to say. Grandma and grandpa if you want visits to continue I supose you agree to the Adoption. I have to let go of the past. [] Love [] Athena []. (Italicized portions denote spelling and grammatical errors in the original.)

The third letter was addressed to Dear Mom. Athena wrote: I am fine but we had some rough exprienses. That I regret and I need to move on I have a Family. That Loves me I have a Mom a Dad. Its really nice I also have brothers and sisters and Im happy here. Now its time to let go. So I wont them to adopt me please allow that Its the best thing. For me. [] Love, [] Athena [] xoxo. (Italicized portions denote spelling and grammatical errors in the original.)

Athena explained she felt that if [her maternal grandparents] cant have me no one else can have me, so Im having feelings that theyre shooting me. But I want to live here really bad with this family Im with right now. Athena said it made her depressed when her grandparents talked about trying to get her back, and she repeated that she did not want any further visits with them.

When Cynthia returned to the courtroom she was given copies of Athenas letters. The court explained that Athenas oral statement tracked her letters, and said that she did not appear to have been coached. The court also stated that, because of her age, Athena had not been put under oath.

The childrens counsel called foster mother Cherie M. Cherie testified that Israel had stabilized. She denied disallowing visits with Cynthia to punish either child and explained that she believed the grandparents should remain in the childrens lives as long as they were positive and supportive. Cherie also reaffirmed her commitment to adopting both children. She reported that after the July 11, 2007 visit, Athena returned with family photographs Cynthia had given her, and later Athena wet her bed and seemed very depressed. She also testified about Athenas angry reaction to her grandfathers comment about getting the children back. In response to a question from Cynthia, Cherie said she had suggested that Cynthia bring family pictures to the visit.

Cynthia testified that Athena was upset and pressured before the July 11 visit because her foster parents excluded her from a family vacation. She described Athena as sunburned, despondent, wearing old tennis shoes, and skinny as a rail. Cynthia said she wanted to contest the childrens foster placement and asked that counsel be appointed for her as a de facto parent. She also wanted the hearing continued because she did not receive timely notice of the Departments addendum report.

On cross-examination, Cynthia acknowledged that she felt very strongly about wanting the children back in her care [b]ecause Im their grandmother and Im the one that can give the love and care that they deserve. She felt the foster parents could not do so because they have nine children. She denied that she told Athena she was going to get the children back and said the addendum report misquoted her. Cynthia believed that Athena had been coached to make the claim contained in the addendum report. She also believed Athena asked Cynthia to drop her appeals and said she wanted to be adopted by her foster parents only because she was being pressured, and that Athena doesnt know what she wants now. She admitted telling an adoptions worker that she intended to appeal and otherwise oppose efforts to finalize the adoption [b]ecause I dont know how my grandson is and how hes being treated.

The court stated its intention to address visitation in a temporary order to allow Cynthia more time to present other evidence or a further response, and gave Cynthia until the next scheduled hearing date, October 22, to address the addendum report. The Department agreed that Cynthia should be given additional time. In light of Athenas opposition to visitation with her grandparents and Cynthias persistent opposition to adoption, the childrens counsel asked the court to suspend visitation pending the October hearing. He said: If after [Cynthia] feels she needs more time to prepare and wants to present further evidence, we can revisit the issue. . . . []  But given the latest development I dont think [visitation]s in Athenas best interests. She made it quite clear, I dont want anymore visits. Shes ten years old, I think her wishes should be abided by. The Department agreed.

The trial court issued the following order. As the Court stated at the outset is that it intended to make any orders only temporarily. But the evidence presented today is quite convincing that the grandparents continued contacts and visitation are detrimental to the children and they will be suspended. [] I will continue to phrase that as temporarily suspended in the hope that some how things will improve or that maybe [there will] be other evidence presented by the grandparents to show that they can conduct themselves in a positive way with these children. But I really dont see that happening anywhere in the near future or even post adoption from what I saw today and knowing the history of the case. [] The joint request from state adoptions and CPS to suspend those visitation or contacts is granted. The court reiterated that it would consider any additional response to the Departments addendum report at the hearing on October 22.

The court then turned to Cynthias request for appointment of counsel. The Department objected because (1) the remittitur in Athena II had not yet issued; (2) Cynthias testimony raised questions as to whether restoring her de facto parent status was in the childrens best interest; and (3) appointing counsel for her would unnecessarily complicate an already contentious litigation, against the childrens best interest; and (4) Cynthia was very capable of articulating her positions. The court denied Cynthias application as premature until the remittitur issued.

The remittitur issued in Athena II on August 29, 2007. On September 25, 2007, Cynthia appealed from the August 13, 2007, temporary order.

DISCUSSION

Cynthia argues the juvenile court violated her constitutional right to due process when it: (1) terminated visitation without adequate notice; (2) rejected her requests for de facto parent status and counsel; (3) did not allow her to confront and cross-examine Athena; and (4) refused her request to replace Mr. Wiley with new counsel for the children. She further contends these procedures were an abuse of the courts discretion, cumulatively resulted in structural error, and were substantially prejudicial. None of her claims have merit.

The parties, correctly, acknowledge that Cynthia was entitled to due process in connection with her section 388 petitions. (See Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure(2008-A ed.)  2.140[2], p. 2-340.) In assessing Cynthias claims of due process violations, we first analyze what process was due. Due process is a flexible concept, whose application depends on the circumstances and the balancing of various factors. (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 757.) Although the state and federal Constitutions differ somewhat in determining when due process rights are triggered, once it has been concluded that a due process right exists we balance similar factors under both approaches to decide what process is due. [Citation.] This flexible balancing standard considers  (1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the [dignity] interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official, and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.   (In re Malinda S. (1990) 51 Cal.3d 368, 383, fn. omitted.) In juvenile dependency proceedings, due process focuses on the rights to notice and an opportunity to be heard. (In re Matthew P. (1999) 71 Cal.App.4th 841, 851.)

Notice

With this framework in mind, we turn first to Cynthias charge that she was deprived of due process when the Department gave her notice only three days before the August 13, 2007, hearing of their recommendation in the supplemental report that visits be terminated, and the court denied her request for a continuance of the hearing. We agree that one weekend was very little time for her to prepare a meaningful response to the supplemental report; where we part company is with Cynthias erroneous insistence that the court denied her request for a continuance. Although the court temporarily suspended visitation, it expressly invited Cynthia to reopen the issue and address the recommendation in the Departments supplemental report at the next hearing on October 22, 2007the exact date she had requested. Cynthia can make no credible claim that she was not given adequate notice of the October 22 hearing. In this light, the August 13 order operated at most to deprive her of two monthly one-hour visits she could have had with Athena under the prior visitation schedule.

Balanced against the minimal private interest implicated in such a temporary denial of visitation is the governmental goal of serving the childrens best interests, which, at this late stage in the dependency proceedings, focuses increasingly on their need for continuity and stability in their prospective adoptive home. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; Burchard v. Garay (1986) 42 Cal.3d 531, 538.) In view of Athenas expressed desire to have no further visits with her grandmother, coupled with Cynthias intent to disrupt the adoption so badly desired by Athena, that governmental goal of serving the childrens best interests was particularly strong. Moreover, before the temporary suspension of visitation Cynthia had notice of and participated in the August 13, 2007, proceedings, where she testified and questioned witnesses.^[5] In these circumstances, the short notice of the Departments recommendation that Cynthias visitation be terminated did not violate her constitutional rights to due process.^[6]

De Facto Parent Status and Appointment of Counsel

Cynthia next contends the court violated her rights to due process and abused its discretion when it failed to grant her de facto parent status and appoint counsel for her on August 13, 2007. Again, we disagree. This court reversed the trial courts original denial of de facto parent status in Athena II, filed on June 27, 2007. Our remittitur issued on August 29, 2007, almost two weeks after the August 13 hearing.^[7] Until the remittitur issued, the juvenile court was without power to act on our reversal with directions to enter an order granting Cynthia de facto parent status. (See 2 Witkin, Cal. Procedure (4th ed. 1996) Jurisdiction,  96, pp. 633-634; see In re Valerie A. (2007) 152 Cal.App.4th 987, 1002, fn. 6.) Moreover, assuming arguendo that the court could have entertained a new petition for de facto parent status based on facts that existed in August 2007, no such petition was pending. Finally, on September 20, 2007, well in advance of the October 22, 2007, hearing date,the juvenile court granted Cynthia de facto parent status, appointed her counsel, and directed her attorney to review the hearing of August 13, 2007, to see if there are grounds to re-open or reconsider the visitation rulings.^[8] We therefore find neither error nor any conceivable prejudice associated with the denial of Cynthias de facto status and appointment of counsel on August 13, 2007.

Athenas Statement to the Court

We turn next to Cynthias contentions that the court (1) violated her right to confront and cross-examine Athena, and (2) erred in allowing Athena to express her wishes at the hearing without being placed under oath. The contentions are unpersuasive. As any child in foster care, Athena has the right to attend court hearings and speak to the judge. ( 16001.9, subd. (a)(17).) Cynthia cites no relevant authority that demonstrates Athena is subject to cross-examination if she exercises that right. To the contrary, it is settled that in the context of permanency planning hearings, the juvenile court may receive evidence of the childs wishes not only through direct testimony, but also in the form of informal direct communication with the court in chambers, on or off the record; reports prepared for the hearing; letters; telephone calls to the court; or electronic recordings. (In re Diana G. (1992) 10 Cal.App.4th 1468, 1480; In re Jesse B. (1992) 8 Cal.App.4th 845, 852-853 [requirement that court consider childs wishes satisfied by minors counsels advocacy for termination of parental rights]; see also In re Leo M. (1993) 19 Cal.App.4th 1583, 1591 [criticizing Diana G. on another point].)

Although Cynthia correctly observes that this was not a permanency planning hearing, her observation does not advance her argument. It would be illogical to permit a child to informally express her wishes to the court at a critical juncture in the proceedings like the permanency planning hearing, and yet require her to give formal testimony under oath and subject to cross-examination in a hearing to modify visitation orders. We see no indication that the Legislature intended such an illogical result. In any event, to the extent Cynthia complains that Athena was not placed under oath she has not preserved the issue for appeal by failing to object on that basis in the juvenile court. (Cf.In re Heather H. (1988) 200 Cal.App.3d 91.)

Cynthia next argues the juvenile court erred when it did not replace the childrens counsel at the August 13 hearing despite our criticisms of Mr. Wileys past performance in Athena I and Athena II, but she fails to demonstrate that the courts decision was an abuse of discretion or that different counsel would have advocated for or obtained a different result. At the August 13 hearing, it appears that Mr. Wiley advocated for Athenas wishes as reflected in her letters and remarks to the court. Moreover, the record shows that Mr. Wiley has since been relieved and a new attorney appointed for Athena and Israel. For both of these reasons, there is no basis for any relief on this score.

In summary, none of Cynthias arguments demonstrate reversible error, either independently or cumulatively.

DISPOSITION

The August 13, 2007, order is affirmed.

_________________________

Siggins, J.

We concur:

_________________________

McGuiness, P.J.

_________________________

Pollak, J.

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^[1] Cynthias fifth appeal, from a juvenile court order reinstating the prior termination of parental rights, is currently pending. (In re Athena, No. A120451.)

^[2] All further statutory references are to the Welfare and Institutions Code.

^[3] Our opinion in Athena II was filed on June 27, 2007.

^[4] The court had continued the ICWA notice issues until October 22, 2007, at the Departments request.

^[5] We take judicial notice that on September 20, 2007, after the remittitur in Athena II issued and more than a month before the October 22 hearing date, the court expressly directed Cynthias newly appointed counsel to review the August 13, 2007, hearing to determine whether there were grounds to reopen or reconsider the visitation rulings. (See In re Louis S. (2004) 117 Cal.App.4th 622, 627, fn. 2 [judicial notice appropriate to show events that occurred during appeal].)

^[6] We therefore need not and do not address the childrens position, shared by the Department, that Cynthia had adequate notice her visitation could be terminated because her section 388 petitions put the entire issue of visitation on the table.

^[7] In Athena III, filed on September 7, 2007, we reversed a subsequent order denying Cynthias second request for de facto parent status because the juvenile court denied it summarily instead of exercising its discretion on the new facts raised in the second petition. The remittitur in Athena III issued on November 8, 2007.

^[8] See footnote 5, ante.