In re Madison E.
Filed 1/3/13 In
re Madison E. CA2/2
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 TWO
In re Madison E., a Person Coming Under the
Juvenile Court Law.
B239258
(Los Angeles County
Super. Ct. No. CK66266)
LOS ANGELES
COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
Jennifer M. et al.,
Defendants and Appellants.
APPEAL
from an order of the Superior Court of
County.
Marilyn Mordetzky, Juvenile Court
Referee. Affirmed.
Janette
Freeman Cochran, under appointment by the Court of Appeal, for Defendants and
Appellants.
John
F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Emery
El Habiby, Deputy County Counsel, for Plaintiff and Respondent.
_________________________
Jennifer
M. (Jennifer) is the maternal grandmother of Madison E. (minor). Matthew M. (Matthew) is married to Jennifer
and is the minor’s maternal step-grandfather.
Jennifer and Matthew (grandparents) appeal the order of the
guardianship over the minor and returning her to the custody of Tara W.
(mother).
We find no error
and affirm.
FACTS
In
2004, mother reported to a sheriff’s deputy that Matthew had fondled her
breasts in 2001, when she was 13 years old.
The allegation was substantiated and the Department of Children and
Family Services (Department) initiated a dependency case on mother’s
behalf. The petition stated, inter alia,
that mother and Jennifer had so much conflict that mother did not want to
return to the home. It also alleged that
Jennifer did not have the ability to effectively deal with mother’s behavioral
issues, which placed her at risk. She
was eventually returned to the grandparents and the juvenile court terminated
jurisdiction.
In
early 2005, when mother was only 17 years old, she gave birth to the
minor. Then, in the spring of 2006,
mother gave birth to a second baby girl, Alyssa B. (Alyssa)
In
March 2007, mother dropped the minor off with her paternal grandparents
(Mr. and Mrs. C.). Mother went to
stay with her father in Colorado.
title="">[2] Three weeks later, the Department received a
child abuse referral. A social worker
went to Mr. and Mrs. C.’s home to investigate. The minor had an infected scratch on her face
and a scratch on her back. The home was unkempt and filthy. A few days later, a social worker spoke to
mother via telephone. She did not want
Jennifer to know about the case because she was controlling and would try to
get the minor.
Mother
admitted to using drugs.
When
the Department discovered that Mr. and Mrs. C. had been convicted of willful
cruelty to a child in 1993, it determined that the minor was not safe in their
home. The minor was detained.
The
Department filed a petition on the minor’s behalf pursuant to section 300,
subdivision (b) of the Welfare and Institutions Code.
minor by placing her in the care of Mr. and Mrs. C. when they had a filthy,
unsanitary home, and because both Mr. and Mrs. C. had sustained a 1993
conviction for willful cruelty to a child.
Count 2 alleged that mother “has a history of substance abuse and is a
current abuser of ecstasy, cocaine, methamphetamine, marijuana and alcohol,
which renders . . . mother incapable of providing regular care
for the†minor. The Department later
amended the petition. It contained the
same two counts and allegations against mother and added a third count against
alleged father, Nathan C. (father). As
to father, the petition stated:
“. . . [Father] is currently incarcerated due [to]
convictions for Lewd and Lascivious Acts w/Child under 14 and Sex with a Minor
3+ Years Younger. Said criminal history
endangers [the minor’s] physical and emotional health, safety and well-being
and places [her] at risk of physical and emotional harm, damage, danger and
sexual abuse.â€
title="">[4]
The
minor was placed with the grandparents.
She visited with mother and Alyssa on weekends.
In
July 2007, the juvenile court sustained the amended petition and declared the
minor a dependent child. It instructed
the Department to provide mother with reunification services.
The
minor exhibited delays in language and walking.
She was referred to Kaiser Permanente for an evaluation. The evaluator opined that it was important
for the minor to remain in a stable home and recommended that the minor be
referred to the Regional Center due to developmental delay.
Mother lived
with her cousin, Lisa P. (Lisa), in Moorpark.
Lisa monitored mother’s visits with the minor and reported that mother
was attentive and demonstrated appropriate parenting skills. Due to conflicts with Jennifer, mother had
difficulty scheduling visits. According
to Lisa, Jennifer continually refused to drive the minor to Moorpark for
visits. Jennifer became upset when she
learned that the Department had liberalized visits to overnight visits at
Lisa’s home, and also when she learned that the Department was considering making
the recommendation that the juvenile court release the minor to mother’s
custody. Before the overnight visits
began, mother left Lisa’s home. In
Lisa’s view, Jennifer manipulated mother into leaving Lisa’s home with the hope
that mother would return to Palmdale, socialize with her drug friends and
relapse into drug use. As for why, Lisa
opined that Jennifer feels that she messed up with mother and views the minor
as a second chance to get things right.
Three witnesses from the family wishing to remain anonymous told a
social worker that Jennifer is controlling, manipulative and does not want to
let the minor go.
Jennifer
complained to the social worker about the drop off day of visits. When the drop off day was worked out to her
benefit, Jennifer complained about the drop off time. Once that was worked out, she complained that
the Department should allow mother only two weekend visits a month even though
that was contrary to the juvenile court’s order. When the social worker refused to reduce mother’s
weekend visits, Jennifer accused the social worker of “never giving me
anything. I have rights too.†The social worker pointed out that the goal
of the case was reunification. In
response, Jennifer stated that she could not believe the Department would
consider “giving that baby back to her.â€
At a doctor’s
appointment for the minor, Jennifer told the doctor that the minor would not be
returning to mother. Jennifer told the
doctor that Matthew and she were going to adopt the minor. Then Jennifer said that Matthew and she “do
not feel it would be safe and good for . . . [the minor’s]
well[-]being to return to the mother, who has a history of an unstable living
situation and substance abuse.†When
asked about this incident, Jennifer said that the doctor must have
misunderstood.
During an interview
with a social worker, Jennifer said it was not her responsibility to help
facilitate visits, and she did not want to transport the minor. She said that mother should get a driver’s
license. The social worker reminded
Jennifer that as a foster parent, she was obligated to comply with
visitation. In response, Jennifer
threatened that the minor might have to find a new place to live.
The Department
decided it would be inappropriate for mother to live with Jennifer because
their ongoing conflict might be detrimental to the minor’s emotional
health. As an alternative, mother moved
in with her maternal great grandmother, Joan C. (Joan). In a phone call she had with a social worker,
Jennifer expressed anger over the Department’s decision to allow Joan to
monitor overnight visits. Jennifer said
that the Department should have exercised its discretion to allow mother to
live with the grandparents. She accused
the Department of “interfering with my family.
You are stopping me from visiting with my daughter and
granddaughter.†The social worker
explained that Jennifer could participate in the visits at Joan’s home. Jennifer accused the social worker of “not
listening to me. I’m upset and I don’t
want to talk to you anymore.†Jennifer
hung up on the social worker.
The Department
informed Jennifer that her kinship home assessment was denied due to the
substantiated referral of sexual abuse against Matthew. As a result, the Department did not consider
Jennifer a permanency option.
Mother moved to
Colorado to live with her father and get a driver’s license. She did not tell the Department. Also, she failed to produce proof of
enrollment in court-ordered individual
counseling and substance abuse counseling.
In addition, she missed several drug tests. Due to her noncompliance with the case plan,
the juvenile court terminated mother’s reunification services.
In the meantime,
a psychologist diagnosed the minor with an autism disorder. As a client of the Regional Center, she began
receiving Early Childhood Intervention Services. She progressed significantly. Though she exhibited speech difficulties, she
was able to articulate her basic needs as well as feed herself, go to the
toilet and get dressed. Mother returned
from Colorado and had monitored day visits with the minor in Joan’s home. The minor interacted with mother well, and
they exhibited a loving relationship. But mother knew that she was not capable
of caring for a special needs child.
In September
2008, Jennifer’s home was approved for federal foster care funding. An administrative hearing unit found that
there was insufficient evidence that Matthew engaged in conduct inimical to the
health of mother or the minor. But
Jennifer’s home still continued to be denied on the county level pursuant to
the guidelines set forth in the Adoptions and Safe Families Act (ASFA).
Jennifer filed a
motion for de facto parent status. It was granted.
The grandparents
requested legal guardianship, and the Department opposed. In its report, it wrote: “Despite the positive aspects of this
placement, [the Department] cannot recommend that legal guardianship be granted
to the [grandparents] due to the sustained count of sexual abuse against
[Matthew]. This is the same issue that
prevented the Department from recommending placement and that caused [the ASFA
Division] to deny the home. The case
record shows that the relationship between [Jennifer] and mother is
sufficiently dysfunctional that it could affect the [minor’s] emotional
health. Attempts were made to address
all the issues by offering the grandparents a plan of counseling and
education. A [team decision meeting] was
held to discuss this option, however the grandparents refused to sign the
agreement unless they had a written guarantee that completion of the counseling
would result[] in [the ASFA Division] approving the home. This could not be
provided. . . .â€
Over
the Department’s objection, the juvenile court granted the grandparents’
request for legal guardianship. At the
same time, the juvenile court declined to terminate parental rights because the
minor was living with relatives who were unwilling or unable to adopt her.
A
year later, mother was attempting to complete court-ordered programs. She visited the minor every other weekend
with Jennifer as monitor. The Department
grew concerned that the ongoing conflicts between mother and Jennifer might
impact the quality of mother’s visits.
As a consequence, the Department recommended that the visits be
monitored by a neutral party.
Mother married
Cory M. (Cory), a marine stationed at Camp Pendleton, and obtained a job as a
receptionist at Super Cuts. As for the
minor, she remained a Regional Center client and received in home services four
times a week through California Psych Care to address developmental
delay/disability. She was successful at
socializing and communicating with other children. The minor continued to have visits with her
sister, Alyssa.
Mother
informed the Department that she wanted custody of the minor. She and her husband, Cory, enrolled in a
parenting education class.
On
October 11, 2010, an addiction medicine therapist from Kaiser Permanente wrote
the following letter: Through counseling
and therapy, mother “was able to address some issues including struggles with
family, children and addiction. [Mother]
made great strides understanding family problems and was able to learn to
accept them and work through them without drugs and alcohol. . . .
[¶] [Mother]
. . . stopped in to say hello with her husband and from an
observation, she looks well and no longer struggling with a drug or alcohol
addiction.â€
By
2011, a social worker was monitoring visits.
The social worker observed that the visits were productive. Mother demonstrated affection and patience
with the minor. The minor responded to
mother with hugs, kisses, laughter, smiles and verbal exchanges. She referred to mother as “mom.â€
Mother
filed a section 388 petition. She asked
the juvenile court to terminate legal guardianship and return the minor to
mother’s home. In the alternative, she
requested that the juvenile court reinstate reunification services and/or order
unmonitored day and overnight visits. As
for changed circumstances, the petition averred: “Mother has completed drug rehabilitation
with random testing and counseling through Kaiser . . . ; and has
completed parenting classes. Mother is
residing locally with [Joan], who is approved as a monitor. Mother has had regular and productive visits
with [the minor] to the extent allowed by the legal guardian, who has lately
been unnecessarily restrictive.†To
establish why the requested relief would be in the minor’s best interests, the
petition stated: “Mother has remedied the
problems that brought her before the [juvenile court] when she was a very young
mother; she has good quality visits with [the minor] to the extent allowed, and
[the minor] is strongly bonded with [mother] and wishes greater contact, but
the legal guardians are refusing this and have created unnecessary conflict
with the mother. Without court
intervention, mother and [Joan] will get little or no contact†with the minor.
The
Department recommended that the juvenile court reinstate reunification services
and allow unmonitored visits. At the
hearing, the juvenile court reinstated reunification services. It also granted mother up to two hours of
unmonitored visitation per visit.
Mother
attended all scheduled visits.
At
a subsequent hearing, the juvenile court granted mother unmonitored day visits
and monitored overnight visits every other weekend. She began preparing to gain custody of both
Alyssa and the minor. Eventually, mother
was granted custody of Alyssa, the younger of the two girls. The social worker reported that mother had
matured and gained the confidence needed to raise children. As a result, the social worker recommended
that mother be given the opportunity to raise the minor and Alyssa in the same household.
In
September 2011, the juvenile court ordered that mother have unmonitored
overnight and full weekend visits. The
visits went well, and mother and the minor built a closer bond. The minor was happy and comfortable in the
presence of mother and Cory. On more
than one occasion, the minor asked if she could stay with mother. By January 2012, a social worker reported
that mother was motivated to resolve the issues that resulted in losing custody
of the minor. Mother exhibited a great
level of maturity. She had gained
insight and confidence, and she was emotionally healthy and stable. Mother wanted to raise the minor, and the
minor wanted to be raised by mother.
The
Department recommended that the juvenile court terminate legal guardianship and
return the minor to mother’s custody. The juvenile court followed the recommendation
and ordered the Department to provide family maintenance services. Also, the juvenile court retained
jurisdiction. It entered orders that
mother and Jennifer attend counseling together, and that the grandparents have
one overnight visit per week as a transition.
Mother was ordered to ensure that the minor remain in the same school
and that she receive behavioral therapy five times a week from an agency of
mother’s choice.
This
timely appeal followed.
DISCUSSION
I. The Law; Standard of Review.
The
parties agree that a juvenile court must focus on the best interests of the
child when deciding whether to terminate a legal guardianship and return the
child to a parent. (In re Nicholas H. (2003) 112 Cal.App.4th 251, 268;
1074, 1087.) When assessing a child’s
best interests, a juvenile court may consider, among other factors, “the
seriousness of the problem leading to the dependency; the strength of relative
bonds between the child and both the parent and the caretaker; and the degree
to which the problem may be/has been easily removed.†(In re
Jacob P. (2007) 157 Cal.App.4th 819, 832.)
We cannot disturb a juvenile court’s order terminating legal
guardianship and returning a child to a parent unless there is an abuse of
discretion. (Ibid.) As for a juvenile
court’s factual findings, they must be credited on appeal if they are supported
by substantial evidence. (In re
Richard C. (1991) 231 Cal.App.3d 1487, 1501.)
II. The
Juvenile Court Acted within its Discretion.
The grandparents argue that
termination of legal guardianship is not in the minor’s best interests
because: (1) she is autistic and has
specialized medical needs; (2) she has a strong bond with the grandparents; (3)
living with the grandparents is all the minor has known; (4) the grandparents
can meet her needs and provide stability; and (5) mother cannot provide the
minor with stability.
In essence, the
grandparents reargue their case and ask us to second guess the juvenile court
as well as the Department. We decline.
The
best interests of a child is a “complex idea.â€
(In re Kimberly F. (1997) 56
Cal.App.4th 519, 530 (Kimberly F.)
[discussing best interests in the context of a section 388 petition].) A “one-dimensional ‘better household’ test is
not dispositive†and many factors must be considered. (Ibid.) “Most of the time such factors will fall
along a continuum, one extreme of which is the notion that just because a
parent makes relatively last-minute (albeit genuine) changes he or she is
entitled to return of the child, the other is the obvious attractiveness of
insuring that the child remains with highly functional caretakers. Neither extreme can be dispositive. In the middle are a number of factors which
may be derived from the existing dependency statutes themselves, and which
drive a case in one direction or another.â€
(Ibid.)
Typically, a
court begins by examining “the seriousness of the reason for the dependency in
the first place.†(Kimberly F., supra, 56
Cal.App.4th at p. 530.) Here,
mother’s immaturity, lack of judgment and drug abuse led to the
dependency. There is no evidence that
mother ever harmed the minor, so this problem is not as egregious as physical
or sexual abuse or intractable as severe mental illness. Nonetheless, mother’s behavior certainly
placed the minor at risk of harm. On a
continuum, the problem was serious enough to warrant intervention by the
Department and courts. The flip side of
the coin is that a court must also examine the degree to which the problem may
be easily removed, and the degree to which it actually has been. (Id.
at p. 532.) Though it took mother
several years to address her problems, she finally decided to do so. She finished her court-ordered programs. As well, she matured, gained confidence and
insight, and became emotionally healthy and stable. Thus, there is substantial evidence that she
resolved the issues that made her unfit to parent.
Next, a court
should take a close look at the relative bonds of the child to both the parent
and caretakers. (Kimberly F., supra, 56
Cal.App.4th at p. 530.) The
evidence shows that there is a strong bond between mother and the minor. The minor is happy and affectionate when she
is with mother, and the minor expressed a desire to stay with mother. Visitation evolved into unmonitored visits
over full weekends, and the visits went well.
As for the grandparents, we infer that the minor has a bond with
them. After all, minor was in their
custody for about five years. But there
is no indication in the appellate record that the minor was so bonded to them
that she would suffer detriment if legal guardianship was terminated. For example, she did not exhibit separation
anxiety during her unmonitored visits with mother.
There
are a few other considerations that deserve attention. The record establishes that Jennifer tried to
interfere with the minor’s visitation and bonding with mother. This suggests that the minor’s best interests
would not be served by remaining in the grandparents’ custody. After the juvenile court reinstated
reunification services, the focus of the case was reunifying mother with the
minor. The grandparents expressed and
exhibited antipathy toward that goal.
Furthermore, the grandparents were never approved as adoptive
parents. Thus, they could not provide
the minor with a permanent placement.
The inference is that mother provides the minor with the best chance for
emotional as well as legal stability.
Too, mother regained custody of Alyssa.
Inferentially, it would be in the minor’s best interests to be raised in
mother’s home so that the minor has an opportunity to bond with her
sibling. Finally, the juvenile court
retained jurisdiction to ensure a smooth transition; it ordered mother to keep
the minor in the same school and take her to behavioral therapy five times a
week; and it ordered that the grandparents have an overnight visit once a
week. Thus, the juvenile court took
precautions so that the minor will receive the best care possible.
We
easily conclude that there was substantial evidence that terminating legal
guardianship and returning the minor to mother’s custody was in the minor’s
best interests. That evidence was
bolstered by the Department’s recommendation that the minor be returned to
mother’s home.
On this record,
there was no abuse of discretion.
Arguing
to the contrary, the grandparents advert to a letter from the minor’s school
psychologist. This letter is the lynchpin
of their appeal. The psychologist wrote
that Jennifer knows how to structure the minor’s home environment and implement
home routines that prevent the minor from shutting down, screaming, falling to
the ground and becoming nonresponsive.
According to the psychologist, “[w]ithdrawn, defiant, and nonresponsive
behavior is typical of a child with Autism when any routines are changed. The consistency of routines and a high level
of structure are essential for [the minor’s] ongoing progress, both in the home
and school setting. Otherwise, a simple
change in routine can result in major regression of behaviors and skills that
[the minor] has obtained. It is crucial
that [the minor] remains in a home environment that provides the above
conditions. [¶] I am impressed by the knowledge that
[Jennifer] has in addressing the needs of a handicapped child, and her being
able to resolve related behavior issues that may occur. [Jennifer] possesses strong parent skills
that are acquired only after much parent training and reading of pertinent
literature related to the handicap of Autism.
[Jennifer’s] expertise in handling [the minor] has prevented [the minor]
from becoming withdrawn, defiant, and nonresponsive.â€
In
essence, what the grandparents suggest is that moving the minor will exacerbate
her autism disorder, and that they are the only caretakers who are capable of
meeting the minor’s needs. The problem
with this suggestion is that there is no evidence that changing homes will be
detrimental to the minor as long as the new home can meet her needs. Nor is there any evidence establishing that
mother lacks the ability to provide the minor with sufficient care. In fact, based on mother’s maturation,
marriage and the success of the unmonitored visits with the minor, the
inference from the record is that mother is up to the challenge.
In their reply
brief, the grandparents argue that Family Code section 3041 establishes that it
is not in the best interests of the minor to be removed from their custody and
returned to mother’s home. This argument
was waived because the grandparents did not raised it below (
(1994) 25 Cal.App.4th 102, 113) or in their opening
brief (Wurzl v. Holloway
(1996) 46 Cal.App.4th 1740, 1754, fn. 1).
Regardless,
this argument lacks merit.
Family
Code section 3041 does not apply to dependency cases. Instead, it applies to probate guardianships. “The
differences between probate guardianships and dependency proceedings are
significant. [Citation.] Probate guardianships are not initiated by
the state, but by private parties, typically family members. They do not entail proof of specific
statutory grounds demonstrating substantial risk of harm to the child, as is
required in dependency proceedings.
[Citations.] Unlike dependency
cases, they are not regularly supervised by the court and a social services
agency. No governmental entity is a
party to the proceedings. It is the
family members and the guardians who determine, with court approval, whether a
guardianship is established, and thereafter whether parent and child will be
reunited, or the guardianship continued, or an adoption sought under [Probate
Code] section 1516.5.†(
Cal.App.4th 1055, 1069 (Vaughn).)
Family Code
section 3041, subdivisions (a) and (b) establish that before granting “‘custody
to a nonparent over parental objection, the [probate] court must find “clear
and convincing evidence†that [(1)] “granting custody to a parent would be
detrimental to the child and that [(2)] granting custody to the nonparent is
required to serve the best interest of the child.†[Citation.]’â€
(Vaughn, supra, 207 Cal.App.4th at pp. 1069–1070.) As defined in Family Code section 3041,
subdivision (c), the detriment to a child “‘includes the harm of removal from a
stable placement of a child with a person who has assumed, on a day-to-day
basis, the role of his or her parent, fulfilling both the child’s physical
needs and the child’s psychological needs for care and affection, and who has
assumed that role for a substantial period of time. A finding of detriment does not require any
finding of unfitness of the parents.’
[Citation.]†(
If the probate court finds that a person has provided the type of stable
placement just described, “this finding shall constitute a finding that the
custody is in the best interest of the child and that parental custody would be
detrimental to the child absent a showing by a preponderance of the evidence to
the contrary.†(Fam. Code, § 3041, subd.
(d).)
Family Code
section 3041, subdivision (c) “‘is a codification of the de facto parent
doctrine, which grants standing [in dependency actions] to persons who
. . . have come to function as parent to a child, even though
not the child’s natural parent.
[Citation.]’ [Citation.] The
doctrine recognizes the interest a person acquires ‘in time’ in the care and
custody of a child by raising the child in his own home. [Citation.]â€
(Vaughn, supra, 207 Cal.App.4th at p. 1072.)
Jennifer’s motion
for de facto parent status was granted, and the grandparents provided the minor
with a home for almost five years. As a
result, they contend that there is a presumption that it will not be in the
minor’s best interests to be removed from their home. We disagree.
A presumption might apply if this case involved a probate guardianship,
but it does not. This is a dependency
proceeding which was closely supervised and analyzed by the Department and the
juvenile court. Different policies and
statutes are at play.
DISPOSITION
The
order is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________________,
J.
ASHMANN-GERST
We concur:
_______________________________,
P. J.
BOREN
_______________________________,
J.
DOI TODD
have kept the facts pertaining to Alyssa at a minimum because she is not a subject of this
appeal.
left Alyssa
with her paternal
grandparents, Mr. and Mrs. B. Alyssa was detained and then released to her
father, Brian
B. (Brian). Brian was living with Mr. and Mrs. B. at the
time.
