In re G.M.
Filed 7/26/12
In re G.M. CA2/2
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opinion has not been certified for publication or ordered published for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
TWO
In re G. M., a Person Coming Under the Juvenile Court Law.
B237853
(Los
Angeles County
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY
SERVICES,
Plaintiff
and Respondent.
v.
MARGARET M.,
Defendant
and Appellant.
Super. Ct.
No. CK81707)
APPEAL
from orders of the Superior Court
of
County. Sherri Sobel,
Juvenile Court Referee. Affirmed.
Catherine
C. Czar, under appointment by the Court of Appeal, for Defendant and Appellant.
John
F. Krattli, Acting County Counsel, James M. Owens, Assistant County Counsel,
and Peter Ferrera, Deputy County Counsel for Plaintiff and Respondent.
Margaret
M. (mother) appeals from orders denying her Welfare and Institutions Code
section 388 petition and terminating her parental
rights.
title="">[1] Mother contends that the juvenile court
abused its discretion when it denied her section 388 petition because mother
did not receive proper notice of the juvenile
court proceedings. Mother further
argues that reversal of the order denying her section 388 petition requires
reversal of the juvenile court’s subsequent order terminating her parental rights. We affirm the orders.
1. Initial referral
On
March 30, 2010, the
(DCFS) received a referral alleging that mother’s four-year-old daughter G. M.
was a victim of general neglect and emotional abuse by mother. The referral address was the Union Rescue
Mission in downtown Los Angeles. The reporting party alleged that G. was out
of control and regularly engaged in physical altercations with unrelated
children at the Mission. Mother denied or dismissed G.’s behavior when
it was drawn to her attention by Mission staff. The reporting party stated that G. was unable
to attend school because she was not toilet trained. Staff at the Mission
had tried to work with mother but mother, who appeared to be mentally
challenged, refused services. Mother was
explosive with other children, always looked disheveled, and constantly talked
to herself. Mother and the child had
reportedly been living at the shelter for more than two months after arriving
in Los Angeles from Las Vegas.
A
DCFS social worker responded to the referral and arrived at the Mission to
interview mother. Mother acted in a
belligerent fashion towards the social worker, demanding to know why the social
worker came for the visit and further demanding: “I need your fingerprint, California Identity
Card, and your DNA, you are not real and not well dressed.” Although the social worker showed mother her
business card and her DCFS county badge, mother became explosive, demanding to
see the referral report and to know who made the report.
Mother
informed the social worker that she also had a 15-year-old son who was living
with a friend in Las Vegas. Mother
claimed that she recently lost her job in Las Vegas, that someone was
stealing her welfare checks, and that her children’s fathers did not pay her
child support.
title="">[2]
Mother
denied that G. was behaving aggressively towards other children, insisting
instead that other children in the facility were hitting G. She stated:
“I allow my daughter to move freely because we are in a shelter, and I
am depressed and frustrated.” She stated
that she purposely did not toilet train G. because she did not want her
daughter to use the toilets in the shelter, which she described as
disgusting. Mother denied mental
illness, but the social worker observed her acting strangely, talking to
herself and fidgeting.
The
facility dormitory coordinator informed the social worker that mother did not
supervise G. and allowed her to roam around and hit other children. Mother did nothing to restrain G. even when
the behavior was brought to her attention.
Mother was disrespectful to the staff at the shelter. She also constantly talked to herself and
made gestures with her hands as if she were stabbing someone with a knife.
The
social worker made an assessment that G.’s safety was at risk and placed her in
protective custody.
2. Section 300 petition and
initial detention hearing
On
April 1, 2010, DCFS filed a petition on behalf of G. and Samuel pursuant to
section 300, subdivision b, alleging that mother failed to provide G. with
proper supervision and that mother demonstrated
Union Rescue Mission.
At
the detention hearing on April 1, 2010, the juvenile court found a prima facie
case for detaining G. from mother’s custody.
The court ordered mother’s visits to be monitored. The court declined to detain Samuel or order
a protective custody warrant for the child.
Mother
did not appear at the detention hearing.
According to the social worker’s report, the agency had attempted to
notify mother regarding the hearing by calling her on the telephone on March
31, 2010. The social worker left mother
a message at the Union Rescue Mission, asking her to return the phone call.
3. Jurisdiction/disposition
report and hearings
On
April 13, 2010, DCFS’s dependency investigator (DI) sent mother notice of the
April 22, 2010 hearing on the petition, along with a certified copy of the
petition, via certified mail. The DI
used mother’s address at the Union Rescue Mission. Two days later, the DI telephoned the Mission
and spoke with mother’s case manager, who indicated that mother had left the
shelter two days after G. was detained by DCFS.
On
April 15, 2010, a treatment social worker provided the DI with a new telephone
number for mother. The same day, the DI
called the number and reached Richard, the director of a voluntary housing
program where mother was living. He
indicated that mother was doing well and said he would give mother the
message. The DI spoke with mother on
April 16, 2010. Mother’s speech was
slurred and difficult to follow as “she spoke in a hurried, urgent and agitated
manner, jumping from topic to topic and without pausing.” Mother refused to meet with the social worker
and indicated that she wanted to “take care of this in court.” Mother asked the DI if the DI was the one
confiscating her child support. Mother
stated that she never hurt her kids and that she was going to have her attorney
call the DI.
A
visit between mother and G. was scheduled for April 14, 2010. G.’s foster mother brought G. for the visit,
but mother did not appear. She also did
not call to cancel or to reschedule. On
April 14, 2010, a social worker interviewed G., who was in foster care. G. was energetic and verbal but her speech
was difficult to understand.
G.’s
maternal aunt informed DCFS that mother’s behavior over the past few years had
alarmed her family. People had suggested
to mother that she have a mental health evaluation. Maternal aunt described an incident when
mother was in the shower and claimed that there were cameras all over the place
and cameras in her body. Mother also
claimed that there were IRS agents after her.
Mother
was not in court for the April 22, 2010 hearing. Maternal uncle was present, and informed the
court that he went to mother’s place of residence that day to attempt to get
her to the court hearing, but she indicated she was not interested in
appearing. Maternal uncle informed the
court that mother was living at an address on North Fresno Street in Los
Angeles.
The
juvenile court found that proper notice had not been provided to mother, since
notice was mailed to her at a different address from where she was living at
the time. The court continued the
hearing to May 13, 2010, and ordered DCFS to provide notice of the proceeding
to the parents.
For
the May 13, 2010 continued hearing, DCFS provided proof of having sent mother
notice of the hearing and a copy of the petition on April 23, 2010, to the
North Fresno Street address in Los Angeles.
DCFS reported that mother had not responded to the social worker’s attempts
to meet with her. On April 21, 2010, the
social worker had telephoned mother and spoken with Richard. She left a message for mother to call her. On April 27, 2010, the social worker made an
unannounced visit to mother’s residence but mother was not present. The social worker left a business card with
Richard. On May 4, 2010, the social
worker telephoned mother again, but Richard stated that mother was unavailable.
At
the hearing on May 13, 2010, the juvenile court found that notice had been provided
to all parties. Mother did not appear
for the hearing. The juvenile court
dismissed Samuel from the proceedings.
As to G., the court sustained the allegations in the section 300
petition regarding mother’s mental and emotional problems and mother’s failure
to supervise the child.
The
juvenile court declared G. a dependent of the court pursuant to section 300,
subdivision (b), and removed the child from mother’s custody. The court stated that mother was “not present
but not whereabouts unknown.” The court
ordered reunification services for mother, including individual counseling,
parenting classes, and a psychiatric evaluation. Mother was granted monitored visits with G.
4. Reunification period
G.
was placed with her maternal aunt and uncle. G. bonded quickly with her aunt and uncle and
expressed gratitude at having “good food” and a “nice bed.” G.’s therapist believed that the child was
flourishing in her relatives’ care and that they were the best option for G.
given all that she had experienced. On
October 28, 2010, the director of G.’s preschool wrote in a letter that, while
G. had started preschool behind her peers in terms of her written skills and
language recognition, she had made remarkable progress. The director also noted that G.’s
self-confidence and sense of security had improved greatly since starting at
the preschool.
At
the six-month review hearing on November 5, 2010, DCFS reported that it had not
had significant contact with mother during the review period. In June 2010, the social worker received
several disturbing and scattered telephone messages from mother, who “appeared
to be angry, confused, and suffering from severe mental difficulty.” The messages were difficult to understand. The social worker tried to call mother back,
but since August 2010, the telephone number for mother’s residence had been out
of service.
In
September 2010, DCFS received an email from mother through their public
inquiries department. The email provided
an updated mailing address for mother, care of the Weingart Legal Center on
Main Street in downtown Los Angeles. The
social worker wrote mother a letter at this new address, asking mother to
contact DCFS.
DCFS
received no information regarding a new residential address for mother, so the
agency believed that mother was likely homeless. In one of her emails, mother claimed that she
was attending NYU. She also claimed that
she had faxed one of her emails to Homeland Security. The email contained a list of “major
predators” who said mother owed them or said she was a bad parent.
G.
remained placed with maternal relatives.
Mother had neither visited the child nor attempted to arrange a visit.
DCFS
sent mother notice of the November 5, 2010 review hearing to the Weingart Legal
Center address that mother had designated.
The notice indicated that it was DCFS’s recommendation to terminate
reunification services. However, DCFS’s
report stated that DCFS’s recommendation was to continue reunification services
for an additional review period.
At
the November 5, 2010 hearing, the court found that notice of the hearing had
been provided to all parties as required by law. Mother did not appear at the hearing. The child’s attorney set the matter for a
contested hearing to dispute DCFS’s report, which recommended that mother
receive additional reunification services.
The child’s attorney pointed out that mother had not visited the child
during the prior review period.
In
a last minute information for the court, DCFS informed the juvenile court that its
previous recommendation to allow mother six more months of reunification
services was an inadvertent error. At
the contested hearing on November 18, 2010, the juvenile court noted that
mother had not had any contact with G. during the previous review period. The court terminated mother’s reunification
services, and the matter was set for a section 366.26 hearing to select a
permanent plan for the child.
5. Section 366.26 proceedings
On
March 17, 2011, DCFS reported that G.’s aunt and uncle had an approved adoption
home study and that adoption was the best permanent plan for the child. DCFS provided the court with a declaration of
due diligence showing a thorough search for mother. The juvenile court continued the section
366.26 hearing and ordered DCFS to publish notice of the upcoming hearing for
mother.
On
July 14, 2011, DCFS submitted a report.
Mother had not seen G. since the child was detained over a year
earlier. DCFS expressed concern with how
the aunt and uncle had been disciplining G., and asked the court to continue
the section 366.26 hearing so that the aunt and uncle could participate in a
parenting class and enroll G. in therapy.
At
the July 14, 2011 hearing, DCFS submitted proof of having published notice of
the hearing to mother. The juvenile
court found that proper notice had been provided and no further notice was
required. The court continued the
hearing at the request of DCFS.
For
the continued section 366.26 hearing on October 13, 2011, DCFS reported that
the child’s caregivers had completed the parenting course. G. was in therapy and had a strong attachment
to her aunt and uncle. Mother had still
not made any attempt to see the child.
DCFS recommended that mother’s parental rights be terminated to free G.
for adoption by her aunt and uncle.
At
the hearing, the juvenile court announced that mother called from Ohio and
provided her telephone number. Counsel
was appointed for mother and made a special appearance on her behalf. The court continued the hearing for one
month.
6. Section 388 petition and
continued section 366.26 hearing
On
November 7, 2011, mother’s counsel filed a section 388 petition alleging that
mother had never been served with notice of the jurisdiction/disposition
hearing.
orders of the court vacated so that the matter could be litigated de novo. Mother’s counsel argued that the change of
circumstances required under section 388 had been shown because the record did not
contain evidence that mother received notice of the hearing on the
petition. Although counsel acknowledged
that DCFS had mailed mother notice of the hearing on the petition via certified
mail, counsel pointed out that there was no signed receipt in the court
file. Mother’s counsel argued that
pursuant to Ansley v. Superior Court (1986)
185 Cal.App.3d 477, 490-491 (Ansley),
it is always in the best interest of the minor to allow her parents to have
full substantive and procedural due process in dependency court cases.
On
November 10, 2011, DCFS reported that the agency had made seven attempts,
between October 13 and October 25, 2011, to reach mother using the telephone
number that she had provided to the court.
The calls triggered a message indicating that no voice mail system was
set up for that number. DCFS’s adoptions
assistant used a reverse directory to obtain an address for mother in Akron,
Ohio. DCFS also obtained another address
from county counsel and mailed notices of the hearing to both addresses as well
as to mother’s attorney.
The
continued section 366.26 hearing and hearing on mother’s section 388 petition
took place on November 10, 2011.
Mother’s attorney made an appearance on her behalf. The attorney reported to the court that his
office had not been able to contact mother since the day that he was appointed
to represent her, and he had not been able to communicate with mother or
determine her location.
County
counsel’s notes stated that mother came to court one day but refused to enter
the courtroom.
The
court commented:
“The
problem that we have with mentally ill parents -- this is not unusual. The only contact that [mother’s attorney] had
with the mother was a phone call so obviously she was noticed for the .26. She knew to call here and had a number
here. She called in. We called her back. Her conversation with [her attorney] was she
didn’t like his voice over the phone so she didn’t want him to represent her. And we never found her again.”
The
juvenile court denied the section 388 petition in its entirety and relieved
mother’s attorney. The court noted that
mother was properly noticed. The court
then conducted the section 366.26 hearing.
It found by clear and convincing evidence that G. was adoptable, and
terminated parental rights.
On
November 29, 2011, mother filed a notice of appeal from the section 366.26
findings and orders and from the denial of her section 388 petition.
DISCUSSION
Mother’s section 388 petition
Relevant law and standard of review
Section 388 permits a parent to
petition the juvenile court to change or modify a court order. The burden of proving that the requested
modification should be granted is on the parent. (Cal. Rules of Court, rule 5.570(h).) The parent must prove, by a preponderance of
the evidence, that (1) there has been a change of circumstance or new evidence
and (2) the proposed change in order will promote the best interests of the
child. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re B.D. (2008) 159 Cal.App.4th 1218, 1228.) Section 388 is intended to provide a means
for the juvenile court “to address a legitimate change of circumstances while
protecting the child’s need for prompt resolution of his custody status.” (In re
Marilyn H. (1993) 5 Cal.4th 295, 309.)
A
section 388 petition is a proper vehicle for a parent to challenge the juvenile
court’s jurisdiction for lack of proper notice.
(Ansley, supra, 185 Cal.App.3d
at p. 481.)
A
juvenile court’s denial of a section 388 petition is generally reviewed for
abuse of discretion. (
Under this standard, the juvenile court’s decision will not be disturbed
on appeal absent a clear abuse of discretion.
(Ibid.)
B. The juvenile court did not abuse its
discretion in denying mother’s section 388 petition
In
her section 388 petition, mother alleged that the appointment of counsel for
mother late in the case, coupled with his discovery of what he believed to be
lack of notice, constituted a significant change of circumstances. Mother further alleged that a change of order
was in the best interests of G. because, under Ansley, it is always in the best interests of the minor to allow
her parents to have full substantive and procedural due process in
1. Changed circumstances
We first address mother’s
allegations of changed circumstances.
Mother acknowledges that the juvenile court made a finding that mother
was properly noticed for the jurisdictional/dispositional hearing. However, mother argues, the record does not
show that mother ever actually received the notice, as the certified mail
return receipt was not signed by mother.
Thus, mother claims, the record lacks any indication that mother was
aware of the date, purpose or potential consequences of the hearing, or of her
right to have an attorney appointed to represent her. Once mother made an appearance, her attorney
attempted to remedy this error by filing the section 388 petition. Mother argues that her section 388 petition
requesting that the judgment be vacated for lack of notice should have been
granted.
In
contrast to mother’s position, the record suggests that DCFS provided mother
with notice as required by law. Notice
of the April 22, 2010 hearing was mailed to mother at the Union Rescue Mission
address on April 13, 2010. A certified
return receipt was signed on April 14 by someone at that address other than
mother. On April 15, 2010, DCFS learned
from mother’s case manager that mother had left the shelter two days after G.
was detained by DCFS. The juvenile court
found that proper notice had not been provided to mother for the April 22, 2010
hearing, since notice was mailed to her at a different address from where she
was living at the time. The court continued the hearing to May 13, 2010, and
ordered DCFS to provide notice of the proceeding to the parents.
DCFS
obtained a new address for mother on Fresno Street in Los Angeles. DCFS also received a new telephone number for
mother, which belonged to a man named Richard, who directed a residential
program where mother was staying.
Richard confirmed that mother resided there. Mother’s brother, who was present at the
April 22, 2010 hearing, also confirmed that mother was residing at the Fresno
Street address. For the May 13, 2010 continued
hearing, DCFS submitted proof of having sent mother notice of the hearing and a
copy of the section 300 petition, via certified mail, to her new address.
The
trial court found that DCFS had provided notice to mother as required by
law. Section 291 addresses the notice
requirements for a jurisdictional hearing.
It requires that, “[i]f the child is detained and the persons required
to be noticed are not present at the initial petition hearing, they shall be noticed
by personal service or by certified mail, return receipt requested.” (§ 291, subd. (e)(1).) If the child is detained, such notice must be
provided at least five days before the hearing, and must include a copy of the
section 300 petition. (§291, subds.
(c)(1) & (d)(7).) DCFS submitted proof
that it sent mother notice of the hearing and a copy of the section 300
petition, via certified mail, to her new Fresno Street address. This notice was mailed on April 23, 2010 --
more than five days before the May 13, 2010 hearing. DCFS’s actions thus complied with the
statutory notice requirements.
Mother
complains that no signed return receipt is found in the record. However, a finding of proper notice may be
made without a signed return receipt.
Section 291 does not require that DCFS receive a signed return receipt,
nor does it require that DCFS provide the court with a signed return
receipt. DCFS submitted a copy of the
notice and proof of mailing as required by law.
This met the statutory notice requirement.
Mother
also takes issue with DCFS’s efforts to notify her of subsequent
proceedings. Despite these complaints,
the record shows that DCFS continued its efforts to notify mother in conformity
with legal requirements. For the
six-month review hearing, DCFS had received an email through the public
inquiries department with an updated mailing address for mother. Notice of the hearing was mailed to mother at
this address. The social worker made
several attempts to contact mother during the first six-month reunification
period, without success. The court found
that notice had been provided to mother as required.
A
declaration of due diligence was signed and filed in January 2011. The only address found was the old Fresno
Street address, and a letter to that address had been returned. Notice by publication, as ordered by the
juvenile court, was provided for the section 366.26 hearing. At the initial section 366.26 hearing, mother
telephoned the court from Ohio. This
suggests that mother did in fact receive notice of the hearing. At that time counsel was appointed for
mother. Counsel later conceded that he
was unable to reach mother and her whereabouts were unknown.
DCFS’s
efforts were “‘reasonably calculated, under all the circumstances, to apprise
[mother] of the pendency of the action’” and afford her an opportunity to
present her objections. (
1413, 1418.) Thus, contrary to mother’s
arguments, her due process rights were not violated.
The
record supports the juvenile court’s finding that DCFS complied with the
relevant notice requirements. Because
notice to mother was proper for the jurisdictional hearing and all subsequent
proceedings, the juvenile court did not err in determining that there were no changed
circumstances warranting a change of order.
Best interests of the child
In order to
prevail on a section 388 petition, mother was required to show not only
significant changed circumstances, but also that a change of order would be in
G.’s best interest. (
666, 672.) We have determined that
mother failed to show changed circumstances warranting a change of order. We further conclude that even if mother had
made such a showing, she failed to demonstrate that an order vacating the
jurisdictional and dispositional findings and orders would be in G.’s best
interests.
At the time the
juvenile court denied mother’s section 388 petition, mother had not visited
with six-year-old G. or spoken to the child in over a year and a half. Mother had very little contact with DCFS
during that time period, with the exception of certain largely unintelligible
emails and telephone calls. There was no
evidence that mother was in treatment for her mental health issues.
Meanwhile, G. had
bonded quickly with her aunt and uncle and was thriving in their care. G. was enrolled in preschool and her
performance had improved dramatically.
In contrast, while the child lived with mother, she was not even toilet
trained and therefore could not attend school.
The aunt and uncle had completed parenting education, took G. to
therapy, and had been approved to adopt the child. G.’s therapist stated that adoption by her
aunt and uncle was “the best option” for G.
a father filed a section 388 petition seeking to vacate a dependency judgment
on the ground that he never received notice of the proceedings and that the
Department of Children’s Services had failed to make sufficient efforts to
effect such notice. (
482.) The trial court found that the
Department “had made no effort to locate or serve petitioner in any manner with
notice of the dependency petition.” (
Here, in contrast,
DCFS made considerable efforts to communicate with mother. As explained above, the trial court correctly
found that notice was provided to mother as required by law.
Mother points to
the Ansley court’s language stating
that “it is implicit in the juvenile dependency statutes that it is always in
the best interests of a minor to have a dependency adjudication based upon all
material facts and circumstances and the participation of all interested
parties entitled to notice.” (
490-491.) This may be so where the
agency has made no efforts to give notice to a parent, as was the case in
Where, as here, “reasonable efforts to search for and notice missing
parents” have been made, it is not always in the best interests of the child to
vacate all previous orders and litigate the matter de novo. (In re
Justice P. (2004) 123 Cal.App.4th 181, 191.)
P. court took issue with the broad statement made in Ansley, explaining:
“To us, the language
in Ansley is a lofty expression of
how the dependency system would work under ideal circumstances, but does not
reflect the all too often harsh reality of how these cases proceed. It is not always possible to litigate a
dependency case with all parties present.
The law recognizes this and requires only reasonable efforts to search
for and notice missing parents. Where
reasonable efforts have been made, a dependency case properly proceeds. If a missing parent later surfaces, it does
not automatically follow that the best interests of the child will be promoted
by going back to square one and relitigating the case.” (In re
Justice P., supra, 123 Cal.App.4th at p. 191.)
DCFS made
sufficient efforts to locate and notify mother throughout the proceedings. Mother has made no effort to contact the
child or be involved in her life. In
short, mother has failed to show that G.’s best interests would be served by
vacating every order and litigating the matter de novo.
II. Order terminating parental
rights
Mother
argues that the notice defect raised in her section 388 petition requires that
the court’s jurisdictional and dispositional orders be vacated. Consequently, mother argues, the order
terminating parental rights must be vacated for lack of jurisdiction.
We have determined
that the trial court did not err in denying mother’s section 388 petition. The juvenile court properly asserted
jurisdiction, and the order terminating mother’s parental rights is affirmed.
The
orders are affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_________________________,
J.
CHAVEZ
We concur:
_____________________________, P. J.
BOREN
_____________________________, J.
DOI TODD
name="_ftn1" title="">[1] All further statutory references are to the Welfare and
Institutions Code.
name="_ftn2" title="">[2] Mother’s 15-year-old son Samuel, and the children’s fathers, are not parties to
this appeal.
