Filed 8/15/12 In re N.H. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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IN THE COURT OF APPEAL OF THE STATE OF
FIFTH APPELLATE DISTRICT
In re N.H., a Person Coming Under
the Juvenile Court Law.
KERN COUNTY DEPARTMENT OF HUMAN
SERVICES,
Plaintiff and
Respondent,
v.
K.M.,
Defendant and
Appellant.
F063970
(Super.
Ct. No. JD125524-00)
In re N.H., a Person Coming
Under the Juvenile Court Law.
KERN COUNTY DEPARTMENT OF HUMAN
SERVICES,
Plaintiff and
Respondent,
v.
B.H.,
Defendant and
Appellant.
F064023
(Super.
Ct. No. JD125524-00)
THE COURT*
APPEAL from
orders of the Superior Court
of Kern County. Louie L. Vega, Commissioner.
Carolyn S.
Hurley, under appointment by the Court of Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
-ooOoo-
Appellants B.H. (father) and K.M.
(mother) appealed from December 2011 orders denying their petitions to
terminate a legal guardianship established under Welfare and Institutions Code
section 360 for their 13-month-old son N., and to place N. with them.[1] After reviewing the entire record, the parents’
court-appointed appellate counsel each informed this court that there were no arguable issues to raise on appeal. Counsel requested, and this court granted,
leave for each parent to personally file a letter setting forth a good cause
showing that an arguable issue of reversible error does exist. (In re
Each parent has since submitted a
letter raising virtually identical issues.
The parents challenge the representation they received leading up to the
order creating the guardianship. They
also claim the judge was unfair to them and sided with the legal guardian. The parents additionally criticize the legal
guardian for essentially interfering with their visits with N. Further, the parents claim they completed
everything that the court asked of them.
The parents conclude by requesting to file a supplemental brief raising
these issues.
On review, we conclude none of the
parents’ claims amount to a good cause showing that an arguable issue of
reversible error does exist.
The Kern County Department of Human Services
(department) detained N. upon his birth in November 2010 and initiated dependency
proceedings. The department was aware
mother had substance abuse and mental health problems and that she and father
previously lost custody of and failed to reunify with other children. Mother previously lost custody of two
children because of her mental illness, domestic violence and substance
abuse. Despite orders for reunification
services, mother did not complete her programs.
Mother’s parental rights were terminated as to one child, while the
other child was placed in her father’s custody.
Father lost custody of three children due to his willful cruelty and
mental illness. He apparently suffered
from paranoid schizophrenia. He too
failed to regain custody after receiving reunification services. Eventually, a juvenile court placed two of father’s
children in legal guardianship and the third child in a specialized foster
home.
The court later exercised its dependency jurisdiction over N. based on
the parents’ abuse or neglect of N.’s half-siblings. At an April 2011 dispositional hearing,
attorneys for the parents informed the juvenile court that the parents were
willing to waive reunification services if N. was placed with his relative,
Kimberly L., under legal guardianship.
The juvenile court accepted the parents’ waivers, denied them
reunification services (§ 361.5, subd. (b)(14)), and appointed Kimberly
and her spouse as N.’s legal guardians pursuant to section 360, subdivision
(a). The juvenile court also ordered
visitation between the parents and N. for up to four hours every other week at
a location the guardian deemed appropriate.
The
guardians later expressed a desire to adopt N. and asked the juvenile court to
set a section 366.26 hearing to consider a permanent plan of adoption. The guardians reported that ongoing battles
over custody persisted between them and the parents. There were also incidents of family violence and erratic
visitation. Mother also was not
taking her prescribed medication.
Soon after,
the parents’ attorneys filed section 388 petitions asking the juvenile court to
terminate the guardianship and return N. to parental custody.
In November
2011, the juvenile court reinstated dependency, granted the guardians’ section
388 petition and set a section 366.26 hearing.[2] The court conducted a hearing on the parents’
section 388 petitions in December 2011.
A department social worker submitted a report
recommending that N. remain with his legal guardians. According to the report, the parents had not
successfully mitigated the issues that placed their other children into
protective custody. In particular, the
parents denied having mental health issues and the need for previously
prescribed medication. Also, the trailer
home the parents shared with the paternal grandmother was very cluttered and
cramped, as well as posed safety concerns.
At the
December 2011 hearing, the court heard testimony from each parent, and the
guardian Kimberley L.
Mother testified that sometime in
2011, she completed a domestic violence class. She continued to live with
father and there had been no incidents of domestic violence. She admitted,
however, that she and father got aggravated with each other. She would lock herself in a room to stay away
from him. He liked to “pick and nag,”
but it was “not physical.”
Mother believed she and father had
addressed the social worker’s concerns about their home. N. would have his own room in the
trailer. Mother had a bed and clothing
for him.
Before the guardianship, she had
weekly visits with N. Those visits
changed to once a month, because the guardians lived in another county. The parents could have visited twice a month,
but they did not have the money for twice-a-month visits. The parents had to ride a bus for several
hours each way in order to visit N. It
was difficult to afford the trips. They
asked the guardian once or twice to bring N. to see them and offered to pay for
gas, but the guardian refused.
Some visits with N. did not
occur. Once, N. was reportedly ill. Mother also claimed they missed their first
visit apparently because they did not know they needed to travel in order to
see N. Mother missed her most recent
visit because she did not feel safe.
Mother thought she was “pretty
close” to N. During their visits, she
held him and he played with her. By
contrast, mother was concerned for the guardian’s care of N. Mother claimed
Kimberley could “get mean at times” and twice fed N. solid foods that he was
not yet ready to eat. Mother admitted
she was not currently taking any psychotropic medications. She claimed the doctor who gave her “the meds
. . . decided not to.”
Mother also admitted no one forced
her to consent to the guardianship.
Father testified that he received
social security benefits and his aunt was his payee. There was a family
arrangement so that the legal guardian paid his bills from those benefits and
gave him whatever money was left each month.
The extra money each month ranged from $50 to $300. Round trip tickets for him and mother to
visit N. cost between $120 to $150, depending on how far in advance he
purchased the tickets.
The guardian testified that after
the April 2011 order for guardianship the parents had one visit with N. at a Bakersfield
park. In May, the parents cancelled
their second scheduled trip for that month.
In June, the father called asking for monthly, rather than twice-a-month
visits. The guardian agreed the monthly
visits could last between six and eight hours.
The parents visited in June, July,
August and September. Then, in early
October 2011, the guardian cancelled a scheduled visit because N. was ill. She offered to reschedule the visit but the
parents declined because they could not afford it. That was the only visit that did not occur
due to the parents’ finances. The
guardian brought N. to the parents’ home for a brief visit at the end of
October. The parents did not visit N. in
November because mother felt uncomfortable allegedly due to a supposed threat
the guardian made sometime over the summer.
The parents also cancelled the December visit.
After closing arguments, the juvenile court
denied the parents’ petitions. It
explained circumstances had not significantly changed and in fact the parents
had missed several visits. Also, the
court could not find it would be in N.’s best interest to terminate the
guardianship.
DISCUSSION
An appealed-from judgment or order
is presumed correct. (
557, 564 (Denham).) It is appellant’s burden to raise claims of
reversible error or other defect and present argument and authority on each
point made. If an appellant does not do
so, the appeal should be dismissed. (
994.) Although the parents raise
multiple issues, none of them are arguable.
Thus, we have no reason to reverse the orders in question. (Ibid.)
To begin,
the parents challenge the legal representation
they received apparently at the time they consented to the guardianship. There are two fatal flaws with their
challenge. First, the time to complain
about the assistance they previously received from their attorneys has
passed. In essence, the parents are
complaining about their agreement to the April 2011 guardianship order. However, an appeal from the most recent order
entered in a dependency matter may not challenge prior orders for which the
statutory time for filing an appeal has passed.
(In re Elizabeth M. (1991) 232
Cal.App.3d 553, 563.) Second, there is
no evidence in the record to support the parents’ challenge. (Denham,
supra, 2 Cal.3d at p. 564 [appellant’s burden to affirmatively establish
error on the record entitling them to relief].)
Next, the
parents argue the juvenile court was unfair to them and “sided” with the legal
guardian. Once again, there is no
evidence to support this argument. Also,
the parents overlook the law in this regard.
The juvenile court’s opportunity to observe the witnesses and generally
get “the feel of the case” warrants a high degree of appellate court
deference. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
The parents also argue that many
times the guardian did not send them the proper funds to purchase bus tickets
for visitation and cancelled six or seven visits. However, there is no evidence in the record
to support either of these claims. We
remind the parents it is their burden to affirmatively establish error on the
record. (Denham, supra, 2 Cal.3d at p. 564.)
Last, the parents claim mother
completed every service that the court has required. Even if this were true, that would not mean
the juvenile court erred by denying the parents’ request to terminate the
guardianship and regain custody of N.
The parents were required to show that:
circumstances had changed or there was new evidence since the court
granted the guardianship, and terminating the guardianship would promote N.’s
best interests. (§ 388, subd. (b); Cal.
Rules of Court, rule 5.570.) Here, there
was no evidence that circumstances had changed such that it would be in N.’s
best interest to return to the parents’ custody.
Whether the juvenile court should
modify a prior order rests within its discretion and its determination may not
be disturbed unless there has been a clear abuse of discretion. (In re
Stephanie M. (1994) 7 Cal.4th 295, 318.)
On the record before this court as summarized above, there is no
arguable claim that the juvenile court abused its discretion.
DISPOSITION
The
parents’ requests for supplemental briefing are denied. These appeals are dismissed.
* Before
Cornell, Acting P.J., Kane, J. and Detjen, J.
[1] All
statutory references are to the Welfare and Institutions Code unless otherwise
indicated.
