In re Raquel A.

Filed 8/6/08 In re Raquel A. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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

Albert J. Garcia, Commissioner. Affirmed.

Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Kristin J. Andreasen, Associate County Counsel, for Plaintiff and Respondent.

_________________________

In this juvenile dependency appeal, Angela A. (mother) challenges an order designating her sister, Katherine A. (Katherine),^[1]as legal guardian of Raquel A. (minor). Mother contends that the juvenile court erred by selecting legal guardianship instead of long-term foster care as the permanent plan.

We find no error and affirm.

FACTS

Referral, investigation and detention

The minor was born in October 1994.

Mother had a habit of calling the police and complaining that her neighbors are out to get her and trying to harm her. After one of her complaints, Los Angeles Police Department officers visited her home and became concerned about her ability to care for the minor.

Based on a police referral, the Los Angeles County Department of Children and Family Services (Department) sent a social worker to visit mother and inspect her apartment. It was spotless, but it contained little food and mother was washing clothes in an unusual fashion. The washing machine and dryer were in the living room, which made the apartment very hot. Outfits were laid out by color, and each outfit was hand washed several times before being placed in the washing machine. Mother had a flat affect and was uncooperative. She stated that all her neighbors were strange and out to harm her. During the social workers visit, mother called her brother. The social worker asked to speak to him and was given the phone. According to the brother, mother suffered from schizophrenia. He expressed concern about mothers ability to care for the minor. Though the minor was three years old, she was not toilet trained, and she exhibited a delayed vocabulary. There was a bruise on the minors left shoulder, as if she had been grabbed hard. Mother said that the minor bruised herself. Mother did not know how or when it happened.

The minor was placed with her maternal grandmother, Ruth A. (Ruth).

The social worker contacted Dr. Barry S. Lieberman, mothers psychiatrist. He stated that she had been diagnosed with paranoid schizophrenia and must take medication to stabilize her condition.

The Departments petition

On December 30, 1997, the Department filed a Welfare and Institutions Code section 300^[2]petition. At a contested hearing on March 3, 1998, Dr. Lieberman testified regarding mothers condition. He had treated her intermittently for anxiety, depression and paranoid schizophrenia since she was 15 years old. At the time of the hearing, mother had not taken antipsychotic medication for 10 years because of its side effects. The juvenile court declared the minor a dependent child and ordered suitable placement.

The minors life with Ruth; termination of jurisdiction; reinstatement of jurisdiction

While living with Ruth, the minor saw mother once a week for one or two hours, and also on holidays. The visits took place under Ruths supervision. Ruth took the minor to Florida twice a year to visit Katherine. On October 26, 1999, Ruth was appointed legal guardian.

Jurisdiction was terminated on January 11, 2001. After a divorce, Katherine relocated to California and lived with Ruth for a couple of years. Katherine helped Ruth with the household responsibilities.

Ruth died on December 14, 2006, and, as a result, the juvenile court reinstated jurisdiction over the minor.

The section 388 petitions seeking new custody orders; related reports

Katherine filed a section 388 petition seeking appointment as the minors legal guardian, and mother filed a section 388 petition seeking custody. At the time of the petitions, the minor was enrolled in the seventh grade and was an average overall student. She had been residing with Katherine since December 3, 2006, in a condominium. The minor shared the bedroom with her 19-year-old cousin, Amber B. Katherine slept in the living room.

Katherine has a masters degree in elementary education and was working as an elementary school teacher. She wanted to be the minors legal guardian. The minor wanted the same thing. According to Katherine, she planned to facilitate visits between the minor and mother.

Mother reported that she had been attending counseling and taking her medication, and that she had completed parenting classes. But mother was unable to provide verification that she had completed parenting classes because, she said, the agencies that provided the classes had destroyed the files. She refused to disclose the name and telephone number of her therapist.

The section 388 hearings

At the initial hearing to address the section 388 petitions, the juvenile court set the matter for contest. The minor stated that she wanted to have monthly visits with mother rather than weekly visits. The Department reported that mother had been attending therapy sessions since August 2005, and that she had been prescribed medication.

Mother failed to appear for the start of the contested hearing on February 23, 2007. The juvenile court denied mothers section 388 petition and set a hearing to determine a permanent plan for the minor pursuant to section 366.26. Mother appeared after the juvenile court had ruled. It denied her request to offer belated testimony in support of her petition.

The section 366.26 hearing

For the initial section 366.26 hearing, the Department reported that the minor felt comfortable with Katherine and wanted her to have legal guardianship. Mother opposed legal guardianship.

At the July 3, 2007, hearing, the minor stated that she did not want to live with her mother because of her small apartment. Also, the minor did not want her legal decisions made by mother.

Asked why she does not believe that Katherine would be a proper legal guardian for the minor, mother provided a long statement about her brother, Ruth and Katherine. The juvenile court cut her off, telling counsel: Your client is just rambling. Mother testified that she was able to make legal decisions for the minor. She went on to answer various questions. At the end, the juvenile court stated: You know what, maam? You are not helping yourself one bit with your testimony. You just ramble on and you make very little sense. Minors counsel opted not to ask mother any more questions.

Katherine testified that she understood the obligations of becoming a legal guardian. She stated that she was more capable of making legal decisions for the minor than mother.

The juvenile court found by clear and convincing evidence that it was unlikely the minor would be adopted, and that it would be detrimental to return the minor to her mother. Katherine was appointed legal guardian.

This appeal

Mother noticed an appeal challenging the suitable placement order of March 3, 1998, and the legal guardianship order of July 3, 2007. Her appellate briefs concern only the latter of those two orders.^[3]

STANDARD OF REVIEW

When a juvenile court selects legal guardianship, an appellate court will not disturb that decision absent an abuse of discretion. (In re Tamneisha S. (1997) 58 Cal.App.4th 798, 806.) Determinations of fact are subject to substantial evidence review. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) An appellate court determines whether there is any reasonable, credible, and solid evidence to support the findings. And it resolves all evidentiary conflicts and make all reasonable inferences in support of the challenged order. (Ibid.)

Mother urges us to apply the substantial evidence test to the July 3, 2007, ruling. She cites In re Erik P. (2002) 104 Cal.App.4th 395, 400 [substantial evidence test applied to the juvenile courts finding of adoptability], In re Megan S. (2002) 104 Cal.App.4th 247, 251 [substantial evidence test applied to a finding under the section 366.26, subdivision (c)(1)(B)(v) exception to the termination of parental rights], In re L.Y.L. (2002) 101 Cal.App.4th 942, 947 [substantial evidence test applied to a finding under the section 366.26, subdivisions (c)(1)(B)(i) and (v) exceptions to the termination of parental rights], and In re Nada R. (2001) 89 Cal.App.4th 1166, 1177 [substantial evidence test applied to a finding that a father did not protect his daughter from sexual abuse]. None of these cases are apposite to legal guardianship.

Regardless, the practical differences between the two standards are not significant. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351). [E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . .  Broad deference must be shown to the trial judge. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)

DISCUSSION

According to mother, the juvenile court committed error by ordering the minor placed into legal guardianship with Katherine because it was not in the minors best interests. Mother argues that the juvenile court was required, on this record, to select long-term foster care. We disagree.

1. The minors best interests.

The record easily supports the juvenile courts implied finding that giving Katherine legal guardianship was in the minors best interest. The minor lived with Katherine for several years while Ruth had legal guardianship. The inference is that Katherine and the minor developed a relationship. Subsequently, just before Ruth died, the minor went to live with Katherine. Katherine had a stable job as an elementary school teacher and provided the minor with a safe home. By the time of the section 366.26 hearing, the minor informed the Department that she was comfortable with Katherine and wanted her to be legal guardian. The minor testified that she wanted her legal decisions to be made by Katherine. Moreover, the minor only wanted to see mother once a month. This implies that the minor looked to Katherine and not mother as the parental figure in her life. It is reasonable to conclude that the permanent plan selected was the best plan available.

Mothers burden on appeal is no small matter. To successfully challenge the juvenile courts findings, she must show that its inferences were based on speculation or conjecture, and that a reasonable trier of fact could not make those findings in light of the whole record. (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) In this endeavor, she has fallen short.

First, she contends that legal guardianship is not in the minors best interest because it constructs barriers between mother and minor. But this contention suggests a conflicting consideration we must ignore pursuant to the dictates of the substantial evidence test. As well, this contention ignores the statutory preference. If parental rights are not terminated, then the juvenile court must, if possible, [a]ppoint a relative . . . with whom the child is currently residing as legal guardian. ( 366.26, subd. (b)(2).) If other options are unavailable, only then can a juvenile court select long-term foster care as a permanent plan. ( 366.26, subd. (b)(5).) And, regardless, Katherine repeatedly stated that she would facilitate visitation between the minor and mother. Plus, the barrier is no greater than it was when Ruth was the legal guardian. This argument fails to demonstrate that the juvenile courts finding was unreasonable or based on speculation and conjecture.

As an adjunct, mother contends that legal guardianship is not appropriate because it does not provide the juvenile court with the necessary flexibility for adjusting the case plan to serve the minors best interest. Mother points out that a child in long-term foster care is subject to periodic review every six months and that a parent can participate if she has parental rights. The juvenile court is required to consider all permanency planning options, including whether to return the child to the home of the parent. Mother states: Given the repeated, strongly-stated desires of both [mother] and [the minor] to be together, the progress [mother] has made in her court-ordered case plan, the progress [the minor] has made in counseling, the progress both had made in conjoint counseling, the juvenile court erred in selecting a permanent plan that did not provide the possibility for adjustment, on review[.] This argument, once again, ignores the minors stated desire for Katherine to be granted legal guardianship, and it ignores the statutory preference for permanent plans. We note that mother argues for a plan that would be less permanent and stable than legal guardianship. However, after the termination of reunification services, the focus shifts to permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309)

Next, mother argues that Katherine is not a suitable guardian. Mother cites written statements she submitted below indicating, inter alia, that Katherine is mean and might harm the minor. But based on the reports that the minor was comfortable with Katherine, and that Katherine provided a stable home and understood the obligations of legal guardianship, the juvenile court was empowered to reject mothers evidence and find that Katherine was suitable. As one court aptly noted, It is the trial courts role to assess the credibility of the various witnesses, to weigh the evidence to resolve the conflicts in the evidence. We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence. [Citations.] Under the substantial evidence rule, we must accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact. [Citation.] (In re Casey D. (1999) 70 Cal.App.4th 38, 5253.)

Finally, mother argues that long-term foster care should have been selected because family preservation arguably remains a goal for the dependent child even when parent-child reunification cannot be achieved. But there is a statutory preferences for permanent plans. As we have indicated, the juvenile court followed those preferences. This leaves no room for debate.

2. The ruling must be affirmed.

Because there is substantial evidence that it is in the minors best interests for Katherine to be her legal guardian, it cannot be said that the juvenile court exceeded the bounds of reason when it ruled as it did.

DISPOSITION

The juvenile courts order placing the minor into legal guardianship with Katherine is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_________________________, J.

ASHMANN-GERST

We concur:

_____________________, Acting P. J.

DOI TODD

_____________________, J.

CHAVEZ

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^[1] At a hearing on July 3, 2007, Katherine spelled her name with a K. We opt for that spelling but acknowledge that her name is sometimes spelled Catherine in the clerks transcript.

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

^[3] The Department argues that this appeal does not extend to the order selecting legal guardianship as the permanent plan because the notice of appeal refers to the order from July 3, 2007, and states: Daughter not returned to me yet. But the notice of appeal states that mother [d]isagree[s] with the order put into place on July 3, 2007. This encompasses the selection of the permanent plan. California Rules of Court, rule 8.100(a)(2) requires us to liberally construe the notice of appeal and states that it is sufficient if it identifies the particular . . . order being appeal. Following this rule, we find the notice of appeal sufficient.