In re Jacob E

Filed 5/22/08 In re Jacob E. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court for the County of Los Angeles.

Jan Levine, Judge. Affirmed.

Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.

______________________________

SUMMARY

This is an appeal by the father from an order of the juvenile court terminating jurisdiction over his three sons, whose maternal grandmother was appointed their legal guardian. (The father also appealed from an earlier order denying his petition under section 388 of the Welfare and Institutions Code to return the boys to his care and custody. This court affirmed the earlier order in In re Kailey E. (March 26, 2008, B200605) [nonpub. opn.]. The father contends the trial court erred in terminating jurisdiction because there were allegations the mother was using drugs, and evidence the legal guardian allowed the mother unsupervised contact with the children. We find no error and affirm the juvenile courts order.

FACTUAL AND PROCEDURAL BACKGROUND

Edward E. is the father of Kailey, Jacob, Joshua and Daniel.[1] The children were removed from the custody of their parents in January 2005, based on domestic violence between the parents and drug and alcohol abuse. The children were detained with the maternal grandmother at her home in La Verne. In September 2005, the children were placed in the home of the mother, on condition she and the children reside with the maternal grandmother. In April 2006, however, the mother relapsed into drug use, and the children were again removed from her custody. Meanwhile, the father complied with various programs (drug counseling, domestic violence counseling, and so on) required by the court, and began conjoint family counseling with the children. He sought to have the children returned to live with him at his home in Big Bear. The children, however, had unfortunate memories of many incidents of violent conduct by their father; they were afraid of him and were adamant about not wanting to live with him. Family counseling and visits with the father (for Joshua and Daniel) continued, but Kailey and Jacob did not want to visit and were not forced to do so. The conjoint counseling did not eliminate the childrens desire not to live with the father, and on January 24, 2007, the maternal grandmother, with whom the children felt safe and secure, was appointed their legal guardian. Fathers subsequent petition under Welfare and Institutions Code section 388[2]to have the children returned to his custody was denied on May 31, 2007, and this court affirmed the juvenile courts order. (A fuller description of the case history appears in In re Kailey E., supra, B200605.)

In its May 31, 2007 order denying the fathers section 388 petition, the court also ordered the Department of Children and Family Services (the Department) to investigate the fathers allegations that the mother was using drugs and that the legal guardian was allowing visits by the mother while she was under the influence of drugs. The court stated there were not to be any visits by anyone under the influence of drugs or alcohol, and if the maternal grandmother were either knowingly or unknowingly allowing mother to visit under the influence that has to stop. The court also referred to the fact that, earlier in the proceedings, the father accurately rang the alarm bell about the mothers previous relapse into drug use. As to the fathers current allegations, the court said: You know, it may very well be the case but I need to have the social worker check it out and we have to catch her. The father and children were ordered back to court on July 25, 2007.

On July 25, 2007, the juvenile court held a hearing to review the permanent plan for the children. The court received and considered the Departments status review report. As to the mother and the allegations about her drug use, the report stated:

        The mother completed a residential rehabilitation program in October 2006, and in November 2006 the court ordered her to continue drug testing. She resided in Azusa with friends from her recovery meetings. She failed to continue drug testing from October 2006 through May 2007. She told the social worker she had not appeared for drug tests because she worked in Orange County and got out of work too late to drug test in Los Angeles County with the Departments drug testing program. She resumed testing in June and had negative tests on June 13 and June 29, 2007.

        The social worker interviewed Jacob, Joshua, Daniel and their step-brother Brandon. The boys informed the worker that the mother comes to visit them every other day for a few hours and the maternal grandmother is always there unless she goes to the store. They reported that the maternal grandmother left to the store one time for twenty minutes and had the 18 years old [step]brother Brandon monitored the visit for her until she came back from the store.

        The maternal grandmother told the social worker that it is not true that she left the children with the mother while she was under the influence; that she was always there monitoring the mothers visits; that one time she had to go to the store and asked Brandon to monitor the visit for twenty minutes; and that the mother was drug testing twice a month and appeared to be sober. The social worker advised her she was required to monitor the mothers visits for the entire time; Brandon was not an approved monitor; and she ought to attend Al-Anon meetings so she could tell if the mother was using drugs or not. The social worker referred the maternal grandmother to a support group near her home and the grandmother agreed to attend the meetings.

A written statement from the grandmother indicated her desire to terminate court jurisdiction. She stated the children had been living with her for two and a half years, and were happy and expressing the desire to remain with her. The children reported being happy and feeling safe in the care of their grandmother. The Department recommended the court terminate jurisdiction with respect to Jacob, Joshua and Daniel.

The father objected to terminating jurisdiction over Jacob, Joshua and Daniel. Counsel stated the father was concerned about the mothers missed drug tests and that the children have been unmonitored with her. The court told the maternal grandmother that there are to be no visits by anyone under the influence of drugs and alcohol, and she replied, I understand that. The court told the father that he would have to file a petition under section 388, with evidence the children were at risk, if he felt the children were in danger in the guardianship. The court then terminated jurisdiction as to Jacob, Joshua and Daniel.

The father filed a timely appeal.

DISCUSSION

The father contends the order of the juvenile court terminating jurisdiction over Jacob, Joshua and Daniel should be reversed. Termination of jurisdiction was not in the best interest of the children, he argues, [i]n light of the mothers prior drug relapse, and the grandmother continuing to allow the mother unsupervised contact with the

children . . . . We see no basis for reversing the trial courts order.

Under section 366.3, the court is required to terminate dependency jurisdiction when a relative is appointed legal guardian, unless the legal guardian objects or upon a finding of exceptional circumstances:

If . . . a relative of the child is appointed the legal guardian of the child and the child has been placed with the relative for at least 12 months, the court shall, except if the relative guardian objects, or upon a finding of exceptional circumstances, terminate its dependency jurisdiction and retain jurisdiction over the child as a ward of the guardianship . . . . ( 366.3, subd. (a).)

The Rules of Court state that:

When legal guardianship is granted, the court may continue dependency jurisdiction if it is in the best interest of the child, or the court may terminate dependency jurisdiction and retain jurisdiction over the child as a ward of the guardianship. (Cal. Rules of Court, rule 5.740(a)(3).)

In this case, the court did not err in terminating jurisdiction over the boys, because there is no evidence to support a finding that the best interests of the children would be served by continued jurisdiction. (See In re Joshua S. (2003) 106 Cal.App.4th 1341, 1353 [finding of exceptional circumstances to warrant continued jurisdiction of the juvenile court may be based on a finding that continued jurisdiction is in the best interests of the child], disapproved on another ground in In re Joshua S. (2007) 41 Cal.4th 261, 274, fn. 7.) The father claims that the mothers failure to submit to drug tests from October 2006 to May 2007, and her unsupervised access to the children, justifies a finding that continued jurisdiction was in the best interest of the children. We cannot agree; certainly we cannot say the trial court abused its discretion in concluding otherwise. There was no evidence to support the fathers allegation that the grandmother was permitting the mother to visit the children while under the influence of drugs. First, there was no evidence the mother was using drugs at the time of the hearing, as the tests she took in June were negative. Second, and more to the point, there was no evidence the maternal grandmother permitted the mother to visit the children while she was under the influence of drugs. The only evidence of anything improper was that, on one occasion, the grandmother left the mother with the children for 20 minutes, with an unauthorized person (18-year-old Brandon) monitoring the visit. But there was no evidence the mother was under the influence of drugs or alcohol on that occasion; the only evidence on the subject was the grandmothers statement to the contrary. Moreover, the juvenile court explicitly cautioned the grandmother that she could not allow anyone under the influence of drugs or alcohol to visit the children, and she expressed her understanding of that obligation. Under these circumstances, the trial court was fully justified in following the statutory mandate to terminate jurisdiction. ( 366.3, subd. (a).)

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P. J.

We concur:

RUBIN, J.

EGERTON, J.*

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[1] This appeal does not concern Kailey; jurisdiction was terminated only as to Jacob, Joshua and Daniel.

[2] All further statutory references are to the Welfare and Institutions Code unless otherwise specified.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.