In re S.F.
Filed 8/8/12 In re S.F. 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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 S. F. et al., Persons Coming Under the Juvenile Court Law.
B237323
(Los Angeles
County
Super. Ct.
No. CK77032)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
M. F.,
Defendant and Appellant.
APPEAL from an order of the
Superior Court of
County. Donna R. Levin, Juvenile
Court Referee. Affirmed.
Darlene Azevedo Kelly, under
appointment by the Court of Appeal, for Defendant and Appellant.
John F. Krattli, Acting County
Counsel, James M. Owens, Assistant County Counsel, and Jeanette Cauble, Deputy
County Counsel, for Plaintiff and Respondent.
_________________________
M. F. (mother) challenges a juvenile court order
establishing a permanent plan of legal guardianship for her two children, S. F.
(S., born Nov. 2003) and Ruby F. (Ruby, born Dec. 2005) with maternal relatives
and dismissing juvenile court jurisdiction.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Welfare and Institutions
Code Section 300
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Report and Hearing
On May 4, 2009, the
(DCFS) filed a section 300 petition on behalf of S. and Ruby. The petition alleged that mother had
physically abused their older sister, Maxine F. (Maxine),
mental and emotional problems, and that the conflict between mother and Maxine
created a detrimental home environment.
According to the detention
report, the family had a history with DCFS.
Mother’s older son, Alfred F. (Alfred),
reunification plan was opened between May 1994 through September 1996. Another court-involved family reunification
plan existed between January 1997 through January 1998 for Alfred. In July 2005, a voluntary maintenance plan
was opened for Maxine and S. for general neglect because mother removed S. from
the hospital for dehydration against medical advice and left Maxine home
alone. And, Maxine, S., and Ruby were
removed from mother’s care when Ruby was born because mother had been placed on
a section 5150 hold for paranoid delusions.
A voluntary family maintenance agreement was opened December 2005
through February 2007.
Most recently, the family failed a family maintenance
agreement, which began in August 2008 for general neglect and emotional abuse
as a result of mother’s shoplifting and paranoia. The family had discontinued therapy because
of arguing between mother and Maxine, and mother was not attending individual
therapy as dictated by the case plan.
The detention report outlined what led to the filing
of the instant section 300 petition.
Following a referral to DCFS, the social worker went to Maxine’s school
to speak with Maxine. Maxine told the
social worker about an argument between mother and Maxine. She also told the social worker that mother
had mental health issues, including schizophrenia and paranoia, and that mother
had been nicer when she was taking medication.
When the social worker went to the family home to
investigate, she noticed a very foul odor, cockroaches, clutter everywhere,
three cats, five kittens, two birds in a bird cage, and a fish tank.
Mother denied any mental health history or ever being
prescribed medication. She indicated
that she favored counseling.
On April 23, 2009, a team decisionmaking (TDM) meeting
was held. During the meeting, mother was
unable to see the connection between her paranoid statements, such as telling
Maxine that she is poisoning S., and her mental health. Mother blamed Maxine for everything and did
not take responsibility for her behavior in not parenting Maxine; for example,
she did not see anything wrong with Maxine being out all night. Mother also did not think she put Ruby at
risk by hitchhiking with her. Ultimately,
Maxine was detained from mother during the TDM meeting. S. and Ruby remained with mother.
At the hearing on May 4, 2009, the juvenile court
ordered family preservation services.
The matter was continued for a pretrial resolution conference.
For the May 28, 2009,
report, DCFS interviewed mother. She
stated that S. and Ruby’s father was an “‘enemy,’” was connected to the mafia,
and had told mother that he and his friends were setting her up to lose custody
of her children. Mother also suggested
that Alfred’s girlfriend was conspiring with DCFS to get the children removed
from her. Regarding mental health
issues, mother reminded the social worker that she never lost control. She denied suffering from severe
Mother’s medical records revealed a different
story. She was diagnosed with a
psychotic disorder after she locked Alfred, who was 11 years old at the time,
in the bathroom and claimed that her ex-boyfriend had friends in the mafia who
were trying to poison her. In 2006, she
was diagnosed with delusional disorder with paranoid and depressive features
and was prescribed medication.
Now, mother stated that DCFS was the enemy and trying
to take her children away from her. DCFS
recommended that mother be evaluated for mental illness and participate in
treatment.
At the contested hearing on June 12, 2009, the
juvenile court struck the allegation of physical abuse and sustained the
allegations that (1) the parent-child conflict between mother and Maxine created
a detrimental home environment for S. and Ruby,
(2) the home was filthy and unsanitary, and (3) mother’s mental and
emotional problems rendered her unable to provide regular care of the
children. The juvenile court ordered
that S. and Ruby remain in mother’s custody and that Maxine be removed from
mother’s custody.
Section 342 Petition and
Detention
On August 7, 2009, DCFS
received a referral from Children’s Hospital of Los Angeles. According to the referral, mother brought S.
to the hospital with an infected wound on her
and had failed to administer prescribed medication. As a result, S. developed a severe infection
and required surgical intervention. The
referral also alleged that mother was psychotic.
Hospital staff had to
give both S. and Ruby baths because they smelled like “‘urine.’”
That same day, the DCFS
social worker conducted a home assessment.
In the home, the social worker saw cats without eyeballs. When the social worker asked mother about the
cats’ missing eyeballs, mother stated that they did not need their eyeballs
because they can sniff their food to eat it.
The children were drinking a red liquid out of ketchup bottles, although
mother claimed that they were drinking lemonade. The home was dirty and had a foul smell. Mother threatened to kill herself and the
children if the children were removed from her care.
Based on the foregoing,
on August 12, 2009, DCFS filed a section 342 petition on behalf of S. and
Ruby. S. was still in the hospital when
the section 342 petition was filed; Ruby was placed in the foster home of Diane
S. (Diane). According to the attached
detention report, S. would be placed with Diane after she was discharged from
the hospital.
At the hearing, the juvenile court ordered that S. and
Ruby be detained from mother’s custody and that the matter be set for
adjudication.
First Amended Section 342
Petition
On August 28, 2009, DCFS
filed a first amended section 342 petition, adding allegations that mother had
mental and emotional problems, which caused her to be limited in her ability to
provide care and supervision for her children.
DCFS further alleged that mother had made numerous suicidal and homicidal
ideation statements. Mother’s emotional
and mental condition placed the children at risk of harm.
Jurisdiction/Disposition
Report
On August 31, 2009, DCFS
reported that there were serious safety concerns regarding mother’s ability to
provide a safe and healthy environment for S. and Ruby. According to a letter from Children’s
Institute, Inc., mother had an “ongoing pattern of emotional instability,
unpredictable behavior, poor judgment, paranoid thinking, and lack of insight
regarding her own mental health needs.”
DCFS also reported that
since the children’s removal, mother called the social worker’s voicemail and
repeatedly threatened to kill her.
Mother accused the social worker of paying the hospital to make
allegations against her. She also stated
that her attorney was black and was in favor of the children being placed in a
black family. At a later date, she told
the social worker that her attorney did not read the allegations and had forged
them for political purposes to get more money.
She believed that Alfred’s girlfriend was working with her attorney and
other social workers. She also stated
that if she did not get her children back, she could not promise what she would
or could do.
When interviewed, Maxine
stated that she saw S.’s infected wound and told mother that she was worried
about her sister’s welfare. She stated
that mother got angry and started choking her in front of S. and Ruby.
Dr. Thomas A. Klotz,
with Downtown Mental Health Clinic, had been treating mother and indicated that
she might benefit from medication.
DCFS then described a
monitored visit on August 26, 2009. The
children were misbehaving, fighting with each other, and throwing things, all
while mother continued to speak about the case with the children. The children cried at the end of the visit,
stating that they wanted to go with mother.
DCFS recommended family
reunification services for mother with S. and Ruby.
Manuel and Elizabeth O.
(the aunt and uncle), S. and Ruby’s maternal aunt and uncle, were present at
the August 31, 2009, hearing. The
juvenile court ordered DCFS to assess their home for placement. The juvenile court also ordered an Evidence
Code section 730 evaluation of mother to address her mental status.
On October 13, 2009, DCFS reported that mother was
participating in her case plan, but the visits remained problematic. She had been consistently late or did not
arrive for visits on the correct dates.
During one monitored visit, mother had a “mental health breakdown,”
making everyone in the office uncomfortable and alert. The foster family agency that had monitored
the visits was no longer willing to do so.
S. and Ruby had had an
overnight visit with their aunt and uncle.
During that visit, mother called every 15 minutes from six in the
morning until six at night. Also, the
aunt and uncle had taken the children to the county fair. When they returned home, mother was sitting
outside their home waiting for them. She
jumped out of her car and began yelling at the children that this was a
conspiracy by the social workers to take them away for political purposes. She threatened that they had “better return
her phone calls or watch and see what [would] happen to them.” When the aunt and uncle returned the children
to the foster home, mother followed them; the uncle reported that they had to
take several different highways in order to lose her.
The aunt and uncle’s home was approved for placement,
but they were not interested in monitoring mother’s visits as a result of her
behavior and out of fear for their safety.
They even were considering obtaining a restraining order.
Last Minute Information for
the Court
On November 19, 2009,
the DCFS social worker provided information regarding her visit with the
children at their placement with their aunt and uncle.
The social worker
interviewed S. Although she was
initially shy, S. warmed up and was friendly throughout the interview. She disclosed that mother’s boyfriend,
Victor, had physically abused both her and Ruby. She also stated that he had sexually abused
her and that mother was aware of the abuse, but let him back into the
house. She further reported that she had
seen mother and Victor engage in sexual activity many times; she had also seen
Victor choke and hit mother.
The aunt stated that
when she gave Ruby a bath, Ruby demonstrated how Victor told her to undress and
do a “sexy dance.” Ruby told her aunt
that that was how “‘girls needed to undress for a man.’”
Adjudication of the First
Amended Section 342 Petition
On November 19, 2009,
the juvenile court sustained the first amended section 342 petition, as further
amended. Specifically, the juvenile
court found that mother had mental and emotional problems that limited her ability
to care for S. and Ruby; mother had expressed suicidal and homicidal ideation;
mother had placed duct tape on S.’s wound, which led to an infection and
multiple abscesses; and mother’s home was filthy and unsanitary.
Status Review Report
On December 11, 2009,
DCFS reported that S. and Ruby were happy living with their aunt and
uncle. S. attended kindergarten, and the
aunt and uncle were in the process of enrolling Ruby in preschool. Both girls continued to receive counseling.
Meanwhile, mother was
constantly calling the DCFS social worker and leaving messages regarding
visitation. She also went to the office
at least three times a week, demanding to speak to someone regarding her
visits. On one occasion, mother was
escorted out of the building by DCFS security guards. Mother was not participating in any services.
DCFS reported that
mother had undergone an Evidence Code section 730 evaluation with Dr. Suzanne
Dupee. Dr. Dupee diagnosed mother with
schizophrenia, paranoid type, and felt that she was in need of medication. She advised that mother’s threats of harm
should be taken seriously because of her unpredictable behavior; she
recommended injectable anti-psychotic medication to ensure that mother received
the medication. In spite of Dr. Dupee’s
suggestion, mother refused to take medication and had stopped all treatment.
Mother’s visits and
behavior continued to be problematic. In
August 2009, at the DCFS office, mother referred to the social worker as a
“‘dirty politician who want[ed] to corrupt the world with poisons.’” She then broke furniture in the bathroom in
front of the children, who were upset and crying and had to be escorted from
the office. She continued to bring
liquids in ketchup bottles for the children even though she had been advised
against doing so.
On September 14, 2009,
in addition to calling them every 15 minutes, mother arrived at the aunt and
uncle’s home unannounced and yelled at them in front of the children. She warned them to return her calls “‘or else.’”
Finally, in addition to
threatening telephone calls to the social worker, on October 19, 2009,
mother went to the DCFS office without an appointment and threatened the social
worker that she would pour oil on her and light her on fire.
Last Minute Information for
the Court
On December 30, 2009,
DCFS advised the juvenile court that mother had provided DCFS with a letter
confirming that she was participating in therapy with Dr. Dirk R. Kuiken. She also submitted a certification of
completion of 10 sessions of a parent support group.
Last Minute Information for
the Court
On January 22, 2010,
DCFS informed the juvenile court that it had received a telephone call from Dr.
Roach, mother’s former psychiatrist. He
stated that mother had not been compliant with her medication. She disagreed with Dr. Roach’s diagnosis and
had requested a new psychiatrist.
Second Section 342 Petition;
Detention Report and Last Minute Information for the Court; Disposition Hearing
On March 15, 2010, DCFS
filed a second section 342 petition on behalf of S. and Ruby, alleging that
Victor had physically and sexually abused the girls and that mother failed to
protect them. DCFS also alleged that
mother and Victor had sex in the children’s presence.
Mother was interviewed
about the new allegations; she denied them and said that she had enemies. She said that Alfred’s girlfriend had
connections to DCFS and her ex-boyfriend, who was connected to the mafia, was
also making false accusations against her.
Mother continued to call
excessively and leave profanity-laced messages.
On March 3, 2010, mother called the supervising social worker six times
beginning at 4:12 a.m.
DCFS received a report
from Dr. Klotz. He advised that mother
was not taking her anti-psychotic medication as recommended, but she was taking
a mood stabilizer.
Mother continued to have
inappropriate visits. On March 6, 2010,
she advised DCFS that if “she did not get her children back at the next court
hearing, something ‘tragic’ was going to happen.” Mother also continued to be fixated on the
idea that she and the children were being poisoned.
On March 10, 2010, the
aunt advised the social worker that mother had come to their home demanding to
see the children. She did not allow the
visit because it was not mother’s scheduled time. The aunt stated that later that day, mother
talked to her neighbors and told them that the girls’ father was trying to
kidnap S. and Ruby and that she was not allowed to see her children. DCFS requested an order prohibiting mother
from going to the aunt and uncle’s home and for an order not to call them
outside her scheduled monitored contacts.
At the disposition
hearing on March 15, 2010, the juvenile court declared the children dependents
of the court pursuant to sections 300, subdivisions (b) and (j), and 342. The juvenile court ordered that mother be
provided with reunification services, that she remain under the care of a
psychiatrist, and that she take all prescribed psychotropic medication. She was afforded monitored visitation.
A hearing was set on the second section 342 petition.
Regarding visitation, although there were some issues,
DCFS reported that the visits were otherwise appropriate. Mother had called the uncle in violation of
the juvenile court’s orders. And, on
April 14, 2010, Dr. Klotz informed DCFS that mother had discharged him as her
psychiatrist and she had been assigned to a new psychiatrist.
Status Review Report and
Hearing
On May 27, 2010, DCFS
informed the juvenile court that S. and Ruby were receiving individual
counseling. They also had begun
mother on April 21, 2010.
Although mother’s
behavior during the visits had improved, she still had to be constantly redirected
when she would start making inappropriate comments. DCFS noted that her monitors put a lot of
effort into creating a structure for mother’s visits. DCFS recommended termination of mother’s
reunification services.
At the May 27, 2010,
hearing, the juvenile court commenced adjudication of the second section 342
petition. It sustained the petition as
amended, noting that mother’s failure to protect her daughters from physical
and sexual abuse was the result of her mental health issues.
Mother was in custody
for the hearing as she had been arrested on May 13, 2010, and charged with
petty theft with a prior. She was
ordered to receive services for incarcerated parents and her current individual
counseling was to address sex abuse awareness.
Because of mother’s incarceration, the orders regarding calling the
social worker and the children were modified to accommodate mother’s schedule
in jail.
Status Review Report and
Hearing
On September 13, 2010,
DCFS reported that mother had been released from jail on June 2, 2010. She met with the social worker and informed
her that she had been diagnosed with a mood disorder and prescribed
medication. Her psychologist,
Dr. Kuiken, reported that mother was being cooperative and seemed a lot
calmer. Dr. Kuiken reminded the
social worker that he was limited in what he could discuss.
The social worker
advised the aunt and uncle that they needed to cooperate with mother’s
visits. They did not want to come inside
the office to pick up the children for the visit because of mother. DCFS reported that during a visit on July 14,
2010, S. stated that the aunt told her that mother was “‘crazy and sick.’”
The children’s therapist
reported that S. stated that she wanted to be with mother. Dr. Kuiken advised that mother was educated
about abusers, and mother indicated that she would exercise better judgment in
her choice of companions. The children
and mother engaged in family therapy.
The therapist reported that they had made progress in communicating with
one another. She also reported that
mother continued to require guidance.
Finally, DCFS reported that mother’s home appeared to be in fair
condition.
Mother’s visits seemed
appropriate. However, on August 4, 2010,
Ruby told mother that she hated her.
Mother asked her if she was mad because she wanted to come home. The minor reminded mother not to discuss such
matters with the children, to which mother replied, “‘You know I have rights
and I have the right to tell my daughter if she is having problems with her uncle
and if they are doing things to her.’”
On September 4, 2010,
mother had a scheduled visit with the girls.
The aunt and uncle were still not comfortable with coming inside the
office with the children because it usually resulted in a hostile exchange with
mother. However, they did bring the
children inside. Mother began asking the
aunt about the children’s school. Mother
was concerned because she did not want Ruby in class with a particular
boy. The aunt informed mother that Ruby
was attending a different school; mother then became very loud and started
accusing the aunt and uncle of not protecting the children. The aunt responded loudly and angrily. The aunt and uncle were signaled to leave the
building, which they did. Afterwards,
mother told S. to remember to tell the judge that she wanted to go home. Finally, mother instructed the children to
ask for more food at the aunt and uncle’s home and to ask to be taken to
McDonald’s. When the aunt and uncle
returned to pick up the children, mother brought up food with them and another
argument ensued.
At the hearing, the
matter was set for contest.
Supplemental Progress Report
and Hearing
On October 6, 2010, DCFS
reported that mother continued to make inappropriate comments in front of the
children during the visits. She claimed
that the aunt told them not to play with mother. Otherwise, however, mother was generally
appropriate, playing with the girls and disciplining them as necessary. There continued to be no interaction between
the aunt and uncle, on the one hand, and mother, on the other hand; in fact,
the uncle preferred it that way because they did not get along.
DCFS also reported
regarding a TDM meeting that occurred on September 29, 2010. Mother and the aunt and uncle were
present. A plan was set for mother and
the aunt and uncle to be respectful and civil in front of the children and not
discuss the case with the children or interrogate them.
Because mother was in
compliance with her case plan, DCFS recommended unmonitored visits for
her. At the hearing, the juvenile court
continued reunification and mother was authorized to have unmonitored visits.
Supplemental Progress Report
and Hearing
On December 2, 2010,
DCFS reported that mother was bringing food and drinks to her unmonitored
visits with the children. The children
reported to their therapist that mother was bringing lemonade with salt in it
and putting aspirin in the drink. She
would then make the children drink it.
During another visit, mother took an iPod and sweater. She admitted that she took them, but stated
that she had returned them. The juvenile
court ordered that mother not bring food to the visits.
DCFS reported that
mother and the aunt and uncle did not comply with the agreement not to speak
negatively about each other. The aunt
and uncle wanted to adopt the children and called the social worker, sometimes
three times a day, to complain and make accusations about mother.
Section 388 Petition
On December 30, 2010,
DCFS filed a section 388 petition for a change of order. It alleged that mother continued to bring
food to the visits despite the juvenile court’s orders. She had also given the children aspirin. In addition, mother made threatening
statements to DCFS staff. During one
visit, mother yelled at S., asking if the aunt had told her to say that mother
had given them aspirin. Mother continued
to rage at the children, and the visit had to be cancelled. DCFS asked that mother’s visits return to
monitored.
The petition was set for
hearing.
Supplemental Progress Report
and Hearing
On January 3, 2011, DCFS
stated that since the last progress hearing, the children’s symptoms had
increased. Mother was reported to be
receptive to the therapist’s suggestions, but continued to require guidance
throughout the sessions. Both children
reported to their therapist that they had seen and been affected by the
animosity between mother and the aunt and uncle. S. disclosed that mother told her to be bad,
and Ruby stated that she ate some chicken at a visit and one piece tasted
“‘bad.’” She stated that mother had told
her that a little boy put poison on it.
The aunt and uncle
informed DCFS that it was difficult to work with mother because of the lack of
a meaningful relationship with her and her negative perception of them.
At the hearing, the
juvenile court ordered monitored visits for mother with S. and Ruby, pending
the next hearing. The juvenile court
directed DCFS to make it clear to the aunt and uncle that they were not to
discuss the case with the children and that if they continued to do so, the
juvenile court would consider removing them as caregivers.
Status Review Report
On February 4, 2011,
DCFS reported that the social worker met with the aunt and uncle on January 11,
2011, to discuss the placement of the children with them. DCFS indicated that the children were doing
better since the meeting and did not report any negative comments about mother
from the aunt and uncle. The aunt and
uncle were referred to the National Alliance on Mental Illness so that they
could be educated on mother’s mental illness.
DCFS also reported that
since the last hearing, mother continued to be unstable. She told Maxine that she was going to hurt
herself and the neighbors. She continued
to bring aspirin and other mediations to the DCFS office for visits. Mother told the social worker that she would
do something desperate if she lost her children.
DCFS recommended that
the juvenile court terminate mother’s reunification services.
Last Minute Information for
the Court
DCFS reported that
mother was consistent with all of her visits; however, during one visit, mother
had an onion taped to her leg. She
explained that it was there because she could not bend her leg and that it was
like “‘[l]aser surgery.’” Mother later
requested to go to the restroom to wash her leg because she could smell the
onion and she had a bad smell.
DCFS then provided the
juvenile court with a record of what had occurred during specific visits. On February 1, 2011, mother stated that S.
had a bad ankle and that Ruby had a fever.
She also continued to bring up the case in front of the children during
the visit. On February 2, 2011, mother’s
visit was with S. only because Ruby had a doctor’s appointment. Mother could not understand why Ruby had to
go to the doctor instead of visiting her.
The aunt and uncle ended up bringing Ruby to visit mother after the
doctor’s visit concluded.
During the February 9,
2011, visit, mother asked S. if she was sick.
S. said that her throat hurt.
Mother insisted that S. was not sick until after she ate and asked her
if the aunt had given her lemon with salt in it. She suggested that there was hair in S.’s
food.
On February 15, 2011,
mother appeared at the DCFS with a threatening and angry demeanor. She declared that “‘the Chinese set her
up.’” She also stated that when she was
crossing the street, two Chinese people accelerated their vehicle and tried to
run her over.
On February 22, 2011,
mother arrived at a visit with a lot of medication in her purse. She told the monitor that she had broken her
arm; she wrapped her arm in a bandage with a warm onion, which mother claimed
helped reduce the swelling. Maxine was
present at the visit, and mother gave Maxine a note with what she wanted Maxine
to say in her statement to the juvenile court.
In particular, mother wanted Maxine to say that S. and Ruby stated that
their aunt made them lie about mother.
On February 28, 2011,
the aunt and uncle reported that mother continued to call them and threatened
to go to her attorney if they did not answer the telephone.
Mother continued to be
concerned that the aunt and uncle were not giving the children lemon with salt,
and she told the children to tell the judge that they wanted to go home so that
she could take them to Chuck E. Cheese and Disneyland.
Attached to the document was a letter from S. and
Ruby’s therapist, reporting that family sessions had been temporarily suspended
by the therapist because S. and Ruby did not appear to be benefitting from
family therapy. Mother had demonstrated
“heightened anxiety” and interactions between mother and the therapist were
impacting the girls’ ability to self-regulate.
Contested Hearing on DCFS’s
Section 388 Petition
At the hearing on March
25, 2011, on DCFS’s section 388 petition, the juvenile court received various
reports into evidence. Then, the
conjoint therapist testified. She stated
that after unmonitored visits were ordered for mother, S. became more defiant
and Ruby cried more. She did state that
mother had done well with positive verbal and nonverbal communications with the
children. She also noted that mother was
good with her attendance. Finally, she
testified that the children’s behavior depended upon mother’s mood; when mother
was having a good day, the children behaved.
The children’s
individual therapist’s testimony followed.
She stated that she noticed a dramatic change in the children’s behavior
in February. She recommended that the
children’s visits with mother remain monitored.
After all, S. and Ruby had reported to her that mother continued to
bring food to the visits when she was not supposed to do so, and S. disclosed
that mother had told her to run into the street or jump off of a high
place. The therapist did not believe
that the aunt and uncle were directly trying to influence the children,
although they have had some indirect influence.
S. and Ruby told the
therapist that they loved mother. Ruby
had informed the therapist that she knew about the hearing date, that she was
going home to mother, and that she was happy about it.
S. testified next. She denied that the aunt told her to lie
about mother. She also denied that
mother gave her and Ruby aspirin during the visits. She wanted to continue visiting with
mother. Finally, she denied that mother
brought her food.
After entertaining oral
argument, the juvenile court granted DCFS’s section 388 petition, ordering that
mother’s visits remain monitored. The
aunt and uncle were admonished not to discuss mother or mother’s visits with S.
and Ruby.
Last Minute Information for
the Court
For the April 13, 2011,
section 366.21, subdivision (f), hearing, DCFS reported that mother had left a
telephone message for the social worker, threatening to kill herself. Despite instructions from the social worker,
mother talked about the case with the children prior to a visit. Afterwards, mother played with the children
and interacted appropriately with them.
According to DCFS, the
aunt and uncle had been obeying the juvenile court’s order not to discuss
mother or the case.
Finally, DCFS reported
that mother left a message on the social worker’s voicemail, indicating that
Alfred had told her that his girlfriend was a Jewish Russian with connections
to the social workers. Mother indicated
that she would let everyone know that she had lost her children because of
racism.
Contested Section 366.22
Hearing
At the April 13, 2011,
hearing, the social worker testified first.
She stated that mother was participating in her treatment plan; mother
interacted with the children on the visits; mother praised the children and
disciplined them by telling them to take time outs when they were misbehaving.
with mother, and that mother and the girls had a positive bond.
She further testified
that the aunt and uncle had not cancelled any visits for mother.
Following the social
worker’s testimony, at mother’s request, two letters were accepted into
evidence: (1) A letter from mother’s
therapist recommending continued reunification services; and (2) a progress
letter from mother’s therapist indicating that mother had complied with her
therapy and requesting that reunification efforts continue.
S.’s attorney asked that
S. remain suitably placed, noting that at an 18-month review hearing, the issue
was return, not further reunification services.
Ruby’s attorney agreed, also asking for the termination of reunification
services and the setting of a section 366.26 hearing.
The juvenile court noted
that mother had complied with her treatment plan. But, the juvenile court found that mother
needed to demonstrate that she was able to complete the objectives of the plan
and provide for S. and Ruby’s safety, protection, and physical and emotional
health and special needs, which she could not do. Thus, it concluded that it had no choice but
to terminate mother’s reunification services.
The matter was set for a section 366.26 hearing to determine a permanent
plan for the girls. Mother’s visits were
to occur at least twice a week for two hours a visit.
Mother’s Section 388
Petition
On July 20, 2011, mother
filed a section 388 petition, requesting family maintenance services or, in the
alternative, family reunification services with monitored visits with
discretion to liberalize. On August 5,
2011, the juvenile court summarily denied mother’s request.
Section 366.26 Report
According to DCFS’s
August 5, 2011, report, the aunt and uncle would consider adoption if it meant
no further contact with mother; however, they were comfortable with whatever
plan was best for S. and Ruby. Legal
guardianship was identified as the appropriate permanent plan because S. and
Ruby were attached to mother, and termination of parental rights would be
detrimental to them.
The aunt and uncle were
ready and able to assume legal guardianship over the children. During his interview, the uncle stated that
S. and Ruby had weekly mental health counseling, and he and the aunt were in
couples counseling to help them communicate with the girls. The children were observed to snuggle and be
very comfortable with the aunt and uncle; their interaction was characterized
as appropriate.
The aunt and uncle
recognized that S. and Ruby were attached to mother, but asked that future
visits be limited to once a month. They
reported that the children did not listen and were difficult to handle for days
after contact with mother.
Based on the foregoing,
DCFS recommended that the aunt and uncle be appointed legal guardians of S. and
Ruby and that mother be allowed monthly visits.
DCFS also recommended that jurisdiction over the children continue.
Status Review Report
DCFS reported that the
children’s behavior remained a challenge, but the aunt and uncle were willing
to accept any services that would help them care for the children. The girls were enrolled in Therapeutic
Behavior Services. The social worker
noticed a significant decrease in telephone calls from the aunt and uncle, and
the children appeared to be following directions better. Mother visited the children regularly,
although she continued to be inappropriate.
Her visits were now every other week.
Finally, the children’s individual therapist suggested that the aunt
participate in individual therapy to address her conflicts with mother.
Section 366.26 Hearing
At the October 12, 2011,
hearing, mother advised the juvenile court that she was not opposed to legal
guardianship; she did, however, want to be heard regarding visitation. She requested increased and unmonitored visitation. Eventually, her request of three hours
visitation every other week was granted.
Mother further requested
holiday visits. The juvenile court
stated that so long as she has an appropriate monitor, she could have “holiday
visits absolutely.”
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The matter was
continued.
Updated Section 366.26
Interim Review Report
DCFS now recommended a
permanent planned living arrangement
for the children. It believed that that
was the best way to ensure the children’s needs were being met. At the October 28, 2011, hearing, the
juvenile court noted that if the aunt and uncle were not comfortable with
closing the case, then it could not order a legal guardianship; if they wanted
to keep the case open, then a different permanent plan was required. The uncle then advised the juvenile court
that he was comfortable with a legal guardianship and with the case being
closed.
The matter was
continued.
Last Minute Information for
the Court
On November 3, 2011,
DCFS informed the juvenile court that the aunt and uncle wanted to be appointed
legal guardians. They understood that
jurisdiction would be terminated.
Finally, they reported that they were willing to monitor the children’s
future visitation with mother.
Thus, DCFS recommended
that the aunt and uncle be appointed legal guardians and that jurisdiction be
terminated.
Hearing
At the November 4, 2011,
hearing, over mother’s objection, the juvenile court ordered legal guardianship
for the aunt and uncle over S. and Ruby.
In so ruling, the juvenile court “checked the box” that the children were
“living with a relative who is unable or unwilling to adopt the child because
of circumstances that do not include an unwillingness to accept legal or
financial responsibility for the child, but who is willing and capable of
providing the child with a stable and permanent environment through legal
guardianship.” Mother was awarded
monitored visitation on Saturdays, two times a month for three hours in a
neutral setting. Letters of guardianship
were issued and juvenile court jurisdiction was terminated.
Appeal
Mother’s timely appeal ensued.
DISCUSSION
I.
Mother
contends that the juvenile court erred in dismissing jurisdiction.
A. Applicable
Law and Standard of Review
The
juvenile court may order a permanent plan of legal guardianship or planned
permanent living arrangement, instead of adoption, if one of the exceptions to
adoption exists. (§ 366.26, subd.
(c)(1).) Section 366.3, subdivision (a),
provides that if a relative has been appointed legal guardian of the child and
that child has been placed with the relative for at least six months, the
juvenile court shall terminate jurisdiction, unless the relative objects or
exceptional circumstances exist. The
juvenile court’s order establishing a legal guardianship and terminating
jurisdiction is reviewed for abuse of discretion. (In re
K.D. (2004) 124 Cal.App.4th 1013, 1019.)
B.
Jurisdiction was Properly Terminated
The
juvenile court properly terminated jurisdiction. Tracking the language of section 366.3,
subdivision (a), relatives of S. and Ruby were appointed legal guardians and
the children had been placed with those relatives for more than six months;
under those circumstances, the juvenile court was required to terminate
jurisdiction.
Mother
claims that because the aunt and uncle objected to the termination of
jurisdiction, the juvenile court erred.
But in making this argument, mother ignores the fact that on October 28,
2011, the uncle advised the juvenile court that he understood that jurisdiction
would be terminated and that he was comfortable with that. Moreover, on November 4, 2011, DCFS advised
the juvenile court that the aunt and uncle indicated that they wanted to be
appointed legal guardians and that they understood that jurisdiction would be
terminated. Thus, while the aunt and
uncle previously may have wanted the case to remain open, they later agreed to
the termination of jurisdiction. It
follows that they did not object to the termination of dependency jurisdiction.
Mother
further argues that dismissal of jurisdiction was inappropriate because
“exceptional circumstances” existed.
Specifically, she points to the hostility between herself and the aunt
and uncle and the lack of a specific visitation order; according to mother,
absent dependency court jurisdiction, visitation will not occur. We cannot agree.
The aunt
and uncle consistently demonstrated that they were willing to engage in
counseling, take direction from the social worker, and do what was needed to
ensure that the children’s welfare was protected. They had been given referrals to resources to
help them deal with mother’s mental health issues, and not only were the
children engaged in weekly mental health counseling, the aunt and uncle were in
counseling themselves. In other words,
there is substantial evidence that they could meet the children’s needs.
Moreover,
the aunt and uncle indicated that they were committed to ensuring ongoing
contact between mother and the girls. It
is undisputed that mother had regular visits with the children and the aunt and
uncle did not interfere with those visits.
And, at the final hearing, the aunt and uncle stated that they agreed
with the juvenile court’s order for twice-monthly visits. It follows that dependency jurisdiction was
not required to ensure visitation. (
799, 806; In re Grace C. (2010) 190
Cal.App.4th 1470, 1476.)
II.
Mother
contends that the juvenile court erred in impermissibly delegating discretion
over visitation to the guardians. The
juvenile court’s order indicates otherwise.
The juvenile court ordered how often the visits would occur (twice a
month), when (Saturdays from 9:00 a.m. to 12:00 p.m.), for how long (3 hours),
and where the visits would occur (neutral setting). Nothing else was required. (In re
Rebecca S. (2010) 181 Cal.App.4th 1310, 1314.)
distinguishable. The visitation order in
that case provided that “‘[v]isitation between the child and parents shall be
supervised and arranged by the legal guardians at their discretion.’” (Id.
at p. 272.) The appellate court
held that the visitation order improperly delegated the judicial function to
the legal guardian. (
mother’s monitored visits were not left to the aunt and uncle’s
discretion. Thus, there is no reversible
error.
Mother also
urges us to reverse on the grounds that, in response to mother’s request to
have the children on holidays, the juvenile court stated “absolutely,” so long
as there was an appropriate monitor.
Mother made that request on October 12, 2011. She did not object to the visitation order
discussed and issued on November 4, 2011, limiting her visitation as outlined
above. It follows that the issue has
been forfeited on appeal. (
superseded by statute on other grounds as stated in In re S.J. (2008) 167 Cal.App.4th 953, 962.)
III.
Mother
argues that the juvenile court erred in “checking the box” on the legal
guardianship form that the aunt and uncle were unwilling to adopt, when the
real reason the permanent plan was legal guardianship and not adoption was
because the children were attached to mother.
Mother is
correct that the appellate record reflects that legal guardianship was the
appropriate permanent plan because the children were attached to mother;
termination of parental rights would have been detrimental to S. and Ruby. But, the juvenile court’s alleged error in
checking the box was harmless. (
915.) Mother failed to reunify with her
daughters despite months of reunification services. The aunt and uncle were ready, willing, and
able to become their legal guardians.
Thus, the order for legal guardianship was appropriate.
DISPOSITION
The juvenile court’s order is
affirmed.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS.
______________________________,
J.
ASHMANN-GERST
We concur:
________________________________,
P. J. _____________________________, J.
BOREN DOI TODD
further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
child prefers to be called by her middle name.
She is not a party to the instant appeal.
