In re S.L.
Filed
1/22/13 In re S.L.
CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 ONE
In re S.L. et al., Persons Coming Under the Juvenile
Court Law.
B240306
(Los Angeles County
Super. Ct. No. CK52216)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY
SERVICES,
Plaintiff
and Respondent,
v.
ANTHONY C.,
Defendant
and Appellant.
APPEAL from orders of the Superior Court of
County. Albert J.
Garcia, Referee. Reversed with
directions.
Michael A. Salazar,
under appointment by the Court of Appeal, for Defendant and Appellant.
John
F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Kimberly Roura, Senior Associate County Counsel, for Plaintiff and Respondent.
__________________________
Anthony
C. (Father) appeals from the juvenile court’s orders denying his Welfare and
Institutions Code section 388 petitions with respect to D.C., A.C., and S.L.;
denying his request to testify telephonically at a hearing; finding the Indian
Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) did not apply; and giving
the legal guardian of D.C. and A.C. discretion over the time, place, and manner
of his visitation.
name="_ftnref1" title="">[1] Father’s children D.C. and A.C. were adjudged
dependents of the court under section 300, subdivisions (b) (failure to protect);
(g) (no provision for support); and (j) (abuse of sibling). S.L., the half sister of D.C. and A.C., was
adjudged a dependent of the court under section 300, subdivisions (b) and (g). D.B. (Mother) and Larry L., the father of
S.L., are not parties to this appeal.
We
reverse the March 19,
2012
order granting legal guardianship over D.C. and A.C. and the February 1,
2012
order granting long-term foster care for S.L. and remand the case to the
juvenile court with directions to order the Department of Children and Family
Services (DCFS) to provide the Cherokee Nation with proper notice of the
proceedings under the ICWA. If, after receiving proper notice, a
tribe determines D.C., A.C., and S.L. are Indian children as defined by the
ICWA, the juvenile court shall proceed in conformity with the provisions of the
ICWA. If no tribe indicates D.C., A.C., and S.L. are Indian children
within the meaning of the ICWA, the court shall reinstate the March
19, 2012
order of legal guardianship and the February 1, 2012 order of long-term foster care. The
court shall then modify the visitation order to specify the frequency and
duration of Father’s visits with D.C. and A.C.
On November 23,
2009, DCFS filed a first
amended petition on behalf of S.L., born in 1996, D.C., born in 1998, and
A.C., born in 2000, against Mother, Father, and Larry L. (the petition). As sustained, paragraph b-1 of the petition
alleged under section 300, subdivision (b) on behalf of S.L., D.C., and A.C.
that on October 20, 2009, Mother physically abused S.L. by striking her
arms, legs, and thighs, resulting in welts, marks, and bruises to her arms,
legs, and thighs. On numerous prior
occasions, Mother had struck S.L.’s body with belts and cords. On October 20,
2009, Mother was arrested for willful cruelty to a child. As sustained, paragraph b-4 of the petition
alleged under section 300, subdivision (b) on behalf of S.L., D.C., and A.C.
that Mother has a history of substance abuse and is a current user of
marijuana; Mother has allowed individuals in possession of marijuana access to
her home. As sustained, paragraph g-1of
the petition alleged under section 300, subdivision (g) that Larry L. has failed
to provide S.L. with the necessities of life, including food, clothing, shelter
and medical care. As sustained,
paragraph g-2 of the petition alleged under section 300, subdivision (g) that
Father has failed to provide D.C. and A.C. with the necessities of life,
including food, clothing, shelter and medical care. As sustained, section 300, subdivision (j)
alleged on behalf of D.C. and A.C. that Mother abused S.L. by striking her
arms, legs, and thighs.
The events leading up to the filing of the petition
are as follows. In 2003, a petition was
sustained with respect to S.L., D.C., and A.C. against Mother and Father under
section 300, subdivisions (b) and (g), arising out of Mother’s failure to make
an appropriate plan for the minors’ care; violent altercations between Mother
and Father; and Father’s failure to provide.
The juvenile court made a home of Mother order with family preservation
services and terminated jurisdiction in May 2005.
On October 20,
2009, Mother was arrested for child cruelty, and an original and
a first amended section 300 petition were filed. Mother denied to DCFS that she or the minors
had Indian heritage, which was recorded on the Indian Child Inquiry Attachment
to the section 300 petition and signed by DCFS under penalty of perjury. At an October 23,
2009 detention hearing at which Mother did not appear, maternal
grandmother stated that her grandmother, Carrie J., who had been born in Louisiana, had Cherokee
blood, but that no family member was enrolled in the tribe. The court ordered DCFS to “evaluate American
Indian heritage, [specifically] the Cherokee Nation, focusing on the state of Louisiana.†On October 27,
2009, under penalty of perjury, Mother signed a parental
notification of Indian status form that indicated she did not have Indian
ancestry as far as she knew. At a
hearing on October 27, 2009, Mother stated
that she and Father did not have Indian ancestry, and the court found that “it
has no reason to know that any of the children will be considered Indian
children under the Indian Child Welfare Act.
The court is not going to order notice under that Act.†Mother also stated the last time she had seen
Father was in 2007.
Meanwhile, Father, who had been incarcerated in Nevada for possession
of a controlled substance for sale, was on parole as of July 2, 2009, with an expected parole
release date of July 26,
2010. DCFS reported that
in 2003 Father had been arrested for possession of cocaine; possession of drug
paraphernalia; possession of cocaine with intent to sell; battery by a
prisoner; possession of a stolen vehicle; and ex-felon in possession of a
firearm. Later, DCFS reported that, as a
juvenile, Father had been charged with grand theft, receiving stolen property,
taking a vehicle without owner consent, and vehicle theft.
DCFS submitted a
declaration of due diligence in December 2009, which reported that DCFS had
spoken with the Nevada parole and probation department regarding Father’s
whereabouts but had not received a response.
At the adjudication
hearing on December 21, 2009, the juvenile court considered the due
diligence reports and ordered Father not to receive family reunification
services, finding by clear and convincing evidence that Father came within
section 361.5, subdivision (b)(12) in that he had been convicted of a violent
felony.
On June 14, 2010,
Father filed a section 388 petition on behalf of D.C. and A.C., and a section
388 petition on behalf of S.L. The first
section 388 petition sought to change the order denying Father family
reunification services and stated that D.C. and A.C. lived with Mother in
California, but Father lived in Michigan
and “was unaware of circumstances.â€
The petition stated Father “will follow any and all rules imposed for
betterment of my children.†Father
requested permanent custody of D.C., A.C., and S.L. The petition stated that the changes would be
better for the children because “I [currently] live and work in Detroit
Michigan where I don’t have any ties to my past life and want to succeed. I’m in the process of buying a home for my
children and want to provide for them.â€
At a status review
hearing on June 21, 2010, the juvenile court denied Father’s first section
388 petition, noting Father had been denied reunification services under
section 361.5, subdivision (b)(12); Mother was receiving reunification
services; and Mother was trying to reunify with the minors. The court noted that Father lives in Michigan
with paternal great aunt, who was interested in having the minors placed with
her. At that time, the court refused to
order an interstate compact on the placement of children (ICPC) report on the
paternal great aunt, but in August 2010 ordered an ICPC report on her.
The second section 388
petition stated that D.C., A.C., and S.L. have lived together their entire
lives; Father did not want them to be separated; and Father had not had contact
with the minors except by telephone from the time he separated with
Mother. Father requested the minors to
be placed in his custody and stated that he lived and worked in Michigan, where
he was buying his first home. On
June 18, 2010, the juvenile court denied Father’s second section 388
petition regarding S.L. without a hearing because it would not promote S.L.’s
best interest.
Meanwhile, Mother had not
complied with the services ordered and was not visiting the minors
regularly. On February 24, 2011,
the juvenile court held a hearing regarding Mother’s reunification
services. The court declined the request
of Father’s counsel, who made a special appearance, that the matter be
continued because Father’s flight had been canceled. The court noted that Father had not received
reunification services under section 361.5, subdivision (b)(12), and terminated
Mother’s reunification services.
S.L., D.C., and A.C.
experienced change in placements, and ultimately S.L. was placed in the foster
home of A.H., and D.C. and A.C. were placed with T.O. The minors reported that they did not want to
be adopted but preferred that their current caregivers be appointed as legal
guardians.
On August 24, 2011,
Father filed a third section 388 petition on behalf of D.C. and A.C.,
requesting a change to the juvenile court’s order of December 21, 2009,
that Father not receive reunification services pursuant to section 361.5,
subdivision (b)(12). The petition stated
that Father had “made great strides in a positive direction such as relocating
to a safer area, away from old friends and neighborhoods, he has maintained
gainful employment and has a house. He
also completed domestic violence and substance abuse counseling.†Father requested the court order D.C. and
A.C. home of Father, or, in the alternative, six months of family reunification
services with liberalized visitation.
The petition also stated that Father “believes he should never have been
denied reunification services pursuant to [section 361.5, subdivision (b)(12)],
since he has never been convicted of a violent felony as defined under the
[Penal] Code. Father loves his children
and has shown determination even though he feels no one has been on his
side. He has made vast lifestyle changes
as noted above and the children deserve to reunify with their [father].â€
Father also attached a
declaration which stated that he had been incarcerated from November 2008 to
October 6, 2009, and that the minors were detained on November 23, 2009. Father did not have contact information for
the minors while he was incarcerated. He
last saw the minors in 2007, before he was arrested. He had been unable to see the minors after he
was released from prison due to his “relocation to Michigan†and “lack of
financial stability.†Father moved to
Michigan immediately upon his release in order to get a “fresh start, away from
old friends and neighborhoods and to create a stable home for my children.†Father learned from his cousin that the
minors were detained. Father told DCFS
that he wanted to participate in the court proceedings concerning the
minors. Father first received a hearing
notice in June 2010. Father called DCFS
“countless†times to regain custody of the minors; his section 388 petition was
denied without a hearing; and he was finally appointed counsel after several
requests. Father declared he maintained
his bond with the minors by regular and frequent phone contact with them and he
had completed a full substance abuse and domestic violence program in Las
Vegas, Nevada. He declared that he had
never been convicted of a violent felony as specified under Penal Code section
667.5, subdivision (c). He had secured
gainful employment and completed parole in July 2010. He had drug tested as a condition of parole
twice per week. Father also attached a
letter dated January 6, 2010, requesting a court-appointed attorney; a driver
skills test certificate from Michigan; a resume; a property tax assessment
notice; a parole agreement “for the crime of possession of controlled substance
w/intent t/sell†dated August 13, 2009; a discharge from parole dated
May 25, 2010; record of attendance at a two-part substance abuse treatment
orientation meeting in November 2009; and employment attendance records as a
forklift operator from April to December 2010.
On August 25, 2011,
the juvenile court granted a hearing on the third section 388 petition to take
place on September 22, 2011, and directed DCFS to prepare a report in
response to the petition, including addressing Father’s criminal record and
interviewing the minors regarding their wishes.
DCFS reported that Father
had stated he had been arrested twice in 1998 for selling drugs; he had been
arrested for spousal abuse in 2007; he had been arrested for selling drugs in
2008; and he had been released from jail on October 2, 2009. DCFS reported that Father had not provided
evidence that he had completed a domestic violence or drug abuse program;
Father had failed to reunify with the minors during a previous DCFS case filed
in 2003. DCFS could not assess whether
Father’s interaction or parenting skills were appropriate because he had not
had visits with the minors. DCFS could
not provide reunification services out of state. DCFS reported D.C. and A.C. had remained with
T.O. from December 1, 2010, who was willing and able to provide a home for
the minors. D.C. was willing to stay
with Father because she had “no[t] seen him in 5 years.†A.C. stated that although she wanted to live
with Father because she had not “‘seen him in a long time,’†she did not want
to leave T.O. or her school and friends.
S.L. did not want to move in with Father, but wanted to return to the
home of her former foster parent A.K.
At the hearing on the
third section 388 petition on September 22, 2011, at which Father’s
counsel appeared, the juvenile court agreed to allow Father to amend the third
section 388 petition to add S.L. The
court also requested further information on Father’s programs; employment;
financial and housing situations; and the wishes of the minors. Father’s counsel mentioned the possibility of
a telephonic hearing for the section 388 petition, and the court commented, “I
think that’s a good idea,†and “So, yeah, you should make arrangements so that
if we need to we could do a telephone conference, testify that way, because
there may be questions that arise that I may have or counsel.†DCFS stated it reserved objections to
telephone testimony by Father.
On October 17, 2011,
Father filed a fourth section 388 petition, which included S.L., requesting a
change to the juvenile court’s order of December 21, 2009, that Father not
receive reunification services pursuant to section 361.5, subdivision
(b)(12). The petition stated that
“Father was only ordered to do a substance abuse assessment to satisfy one of
the requirements of parole in 2009, but was not ordered into a full substance
abuse program, since the ‘assessment of drug or alcohol use’ was marked as
‘low.’ Additionally, Father attaches
further proof of home ownership.†Father
requested a home of Father order, or, in the alternative, six months of family
reunification services with liberalized visitation. He also requested an order that S.L. reside
with him or that he be given an opportunity to reunify with her. The petition stated that Father should never
have been denied reunification services pursuant to section 361.5, subdivision
(b)(12) because he had never been convicted of a violent felony. Father attached a letter of support from
paternal second cousin; documents, including a tax statement, regarding his
home; a land installment contract signed on September 29, 2010; an
installment note; and pictures of his home.
At an October 27, 2011 hearing, the court ordered
an ICPC report for Father in Michigan and an update on the minors’ wishes. The court gave DCFS discretion to liberalize
Father’s visits with the minors in California and continued the section 388
hearing to February 1, 2012.
DCFS reported in a “last minute information†on
February 1, 2012, that it had received Michigan’s ICPC report on Father,
which recommended that Father “be given the opportunity to provide a stable and
loving home for his children. [Father]
does not want to be referred for licensure.â€
The ICPC report indicated that Father owns his own home, is employed
full-time, has family support, and “appears to be passionate about his
children.†DCFS disagreed with the ICPC
report based on Father’s past attempt at suicide; depression; lack of visits;
DCFS’s inability to assess interaction between Father and the minors; the
minors’ vacillation on whether they wanted to live with Father; the minors were
thriving in current placement; D.C.’s and A.C.’s bond with T.O.; S.L.’s lack of
interest in living with Father; and the inability of DCFS to provide
reunification services for Father out of state. D.C. stated she did not want to have to make
a decision about living with Father and would be happy to stay with T.O. A.C. indicated that although she wished to
live with Father, she would be willing to live under legal guardianship with
T.O. D.C. and A.C. were happy and
comfortable with T.O., who provided a structured and supportive home
environment that met all their needs.
D.C. and A.C. had put down roots in the community and had been in foster
care for over two years. S.L. wanted to
live with Father only to avoid separation from D.C. and A.C. and said that
Mother had told her to tell DCFS that she wanted to live with Father in
Michigan.
On February 1, 2012, the hearing on the fourth
section 388 petition was held. The
juvenile court admitted the last-minute information and the Michigan ICPC
report. DCFS objected to the telephone
testimony by Father, arguing that DCFS had not received prior notice and that
the court would not be able to judge Father’s credibility, whether the
testimony was scripted, the identity of the person speaking, and
cross-examination would be impaired. The
court, which was not the same hearing officer at the previous hearing, denied
Father’s request for telephonic testimony.
The court sustained DCFS’s objection to Father’s counsel’s offer of
proof, which was solely that Father would testify that Michigan social workers
had “suggested to him that it’s a positive ICPC.†Counsel stipulated that the three minors
would testify they wanted to go home of Father and Father had sent them
cellular telephones through counsel so they could talk to him. Father’s counsel stated she had submitted
evidence of Father’s compliance with parole but had not been able to obtain
paperwork to confirm that Father had completed domestic violence
counseling. DCFS argued that Father had
a past history of domestic violence; Father had not completed violence
counseling; Father had mental health issues which remained untreated; and there
was evidence that Mother pressured the minors to say they wanted to live with
Father so that Mother could move to Michigan and bypass DCFS.
The juvenile court stated, “I’ve read and considered
all of the documents. By the way, I went
back to all of the volumes . . . , the whole picture on this
thing.†The court noted, “[I]t is nice
that [Father] is stepping up,†but denied Father’s fourth section 388 petition,
determining that Father had not met his burden to show a change of
circumstances and it was not in the best interests of the minors to grant the
petition. The court recognized that the
minors’ best interests were the focus at that stage of the proceedings,
stating, “We know he needs to get himself together, but my job is to protect
the children from themselves sometimes too.
That’s paramount in here too.
Sure, the children want to go back.
I understand that. There’s a lot
of promises being made somewhere, left and right, around here. And what we need to do is get it all
straightened out for them. And, if you
go back to this file — you can go back in depth — you can see the problems in
this case from way back. This is nothing
new. And so far I do not have the
evidence that shows a change in circumstances that he meets the burden at this
point. [¶] However, that doesn’t mean that he has to
give up, nor does it mean the children can’t see him. It doesn’t mean he can’t come out and see
them.†The court recognized that it
would be difficult for Father to visit the minors but that it was necessary for
Father to “step up†his visitation with the minors and that DCFS could assist
with arrangements to have the minors visit Father in Michigan.
The court ordered long-term foster care for S.L. The court ordered the ICPC report to be
continued and monitored, “reasonable†visits for Father.
On March 15, 2012,
Father filed a fifth section 388 petition with respect to D.C., A.C., and S.L.,
stating that Michigan had approved the ICPC report for Father as of
January 10, 2012. It stated,
“Father is also enrolled in and is attending classes/counseling as ordered by
the ICPC division,†and “Father has made vast lifestyle changes as evidenced by
his approved home study by the state of [Michigan].†An investigator affiliated with Father’s
counsel stated that she had confirmed the ICPC approval with Michigan on
February 1, 2012. DCFS argued that
“all you have before you is an approved ICPC which was pending anyway at that
time and was not the basis for the court’s finding at the last hearing. These issues have been dealt with by the
court and there’s nothing new, your Honor.â€
On March 19, 2012,
the juvenile court summarily denied the fifth section 388 petition, stating
that it presented no new evidence or change of circumstances. With respect to the minors’ requests for specific
visitation orders, the court stated, “You can set out a schedule on it. I’m amenable to that,†and “It all depends on
what he’s going to be able to — phone contact he can have as much as he wants
basically. I don’t have a problem with
that at all. It’s his real contact in
life that is another additional problem other than the fact that he hasn’t
stated new evidence anyway.†Father’s
counsel requested daily visitation for three hours a day if Father were to fly
in from Michigan. In response to the
court’s query, T.O. stated that she would not have a problem with Father
visiting the minors. The court commented
that Father had a purely telephonic relationship with the minors; that he had
not complied with “all the court orders and case planâ€; and that it was
encouraging Father to visit the minors to establish a “real†relationship with
them. The court granted T.O. legal
guardianship over D.C. and A.C. and ordered monitored visits for Mother and
Father, “time, place and manner to be determined by the legal guardian.†Father appealed.
DISCUSSION
A. The juvenile court erred
in failing to direct DCFS to give ICWA notice
Father
contends that ICWA notice was required to be sent to the Cherokee tribes
because the juvenile court had reason to know that an Indian child was involved
based on maternal grandmother’s
statement. We agree.
“Congress passed the ICWA in 1978 ‘to promote the stability
and security of Indian tribes and families by establishing minimum standards
for removal of Indian children from their families and placement of such
children “in foster or adoptive homes which will reflect the unique values of
Indian culture . . . .â€â€™
[Citations.]†(
1160, 1164.) If the court “knows or has
reason to know that an Indian child
is involved†in a dependency proceeding, the social worker or probation officer
shall provide notice to the child’s tribe.
(§§ 224.2, subd. (a), 224.3, subd. (d).)
“If the
court or the Department ‘knows or has reason to know that an Indian child is
involved, the social worker . . . is required to make further inquiry
regarding the possible Indian status of the child, and to do so as soon as
practicable, by interviewing the parents, Indian custodian, and extended family
members . . . , contacting the Bureau of Indian Affairs
. . . [,] the tribes and any other person that reasonably can be
expected to have information regarding the child’s membership status or
eligibility.’ (§ 224.3, subd. (c);
see Cal. Rules of Court, rule 5.481(a)(4).) The circumstances that may provide reason to
know the child is an Indian child include, but are not limited to, ‘A person
having an interest in the child, including the child, an officer of the court,
a tribe, an Indian organization, a public or private agency, or a member of the
child’s extended family provides information suggesting the child is a member
of a tribe or eligible for membership in a tribe or one or more of the child’s
biological parents, grandparents, or great-grandparents are or were a member of
a tribe.’ (§ 224.3, subd. (b)(1).)†(In re
Gabriel G., supra, 206
Cal.App.4th at pp. 1165–1166 [court failed duty of further inquiry and
requiring ICWA notice where mother denied Indian heritage but father filed
unsigned form that paternal grandfather was member of Cherokee tribe even
though father later denied Indian heritage].)
“‘The determination of a child’s Indian status is up to the tribe;
therefore, the juvenile court needs only a suggestion of Indian ancestry to
trigger the notice requirement.’†(
S. (2002) 104
Cal.App.4th 1401, 1408 [finding
father’s suggestion that child “might†be an Indian child because paternal
great-grandparents had unspecified Native American ancestry was enough to trigger
notice].)
In
reviewing the findings of the trial court made pursuant to the ICWA, we are
governed by the substantial evidence test.
(In re Michael G. (1998) 63
Cal.App.4th 700, 715.)
Here,
maternal grandmother stated that her grandmother, who had been born in Louisiana, had
Cherokee heritage. Mother, on the other
hand, testified and stated under penalty of perjury that she did not have
Indian heritage, as far as she was aware.
There is no evidence in the record that DCFS evaluated Mother’s Indian heritage,
focusing on the Cherokee Nation in Louisiana, as the juvenile court ordered at
the October 23, 2009 hearing. Based
on the information obtained from maternal grandmother, the court and DCFS
should have made further inquiry. In the
absence of further inquiry or rebuttal evidence of maternal grandmother’s
representation that her grandmother had Cherokee heritage, notice was required
to be sent to the Cherokee tribes.
As
discussed below, we conclude that the juvenile court did not err in making the
other orders of which Father complains.
Therefore, we conditionally reverse the court’s guardianship
orders. (In re Gabriel G., supra,
206 Cal.App.4th at p. 1168 [limited reversal appropriate to ensure ICWA
requirements are met].) If, after proper
notice, the court finds that D.C. and A.C. are Indian children, the court shall
proceed in conformity with the ICWA. If
it is determined on remand that the minors are not Indian children, the orders
shall be affirmed.
B. The juvenile court’s denial of Father’s
request to testify by telephone, if in error, was not prejudicial
contends the juvenile court abused its discretion when it denied Father’s
request to testify by telephone at the February 1, 2012 hearing on his
fourth section 388 petition.
“[I]n
dependency proceedings, a parent’s right to due process is limited by the need
to balance the ‘interest in regaining custody of the minors against the state’s
desire to conclude dependency matters expeditiously and . . .
exercise broad control over the proceedings . . . .’ [Citation.]
Trial courts are afforded discretion to work within existing guidelines
to determine the admissibility of evidence.
[Citation.] The reviewing court
will not disturb their findings absent an ‘“‘“arbitrary, capricious, or
patently absurd determination. . . .â€â€™â€â€™ [Citation.]â€
(In re Nada R. (2001) 89
Cal.App.4th 1166, 1176 [exclusion of telephonic testimony by expert witnesses
in Saudi Arabia was not abuse of discretion where court balanced minimal
importance of testimony with state’s interest in expeditious resolution, other
parties did not have notice of expert’s testimony, and continuance would be
required to rebut expert testimony].)
We need not
decide if the juvenile court abused its discretion in denying Father’s request
to testify by telephone because any error was not prejudicial. Father’s counsel’s offer of proof was that
Father would testify that the Michigan social worker had “suggested to him that
it’s a positive ICPC.†Although the
court sustained DCFS’s objection to Father’s telephonic testimony, the evidence
Father would have presented was admitted nonetheless into evidence in the form
of the ICPC report from Michigan.
We conclude
the juvenile court did not commit prejudicial error in denying Father’s request
to testify by telephone.
C. The juvenile court did not abuse its
discretion in denying Father’s fourth section 388 petition at the hearing on
February 1, 2012
contends because he showed that he had made significant changes in his life the
juvenile court abused its discretion in denying Father’s fourth section 388
petition at the hearing on February 1, 2012. We disagree.
Section
388, subdivision (a) provides, “Any parent or other person having an interest
in a child who is a dependent child of the juvenile court or the child himself
or herself through a properly appointed guardian may, upon grounds of change of
circumstance or new evidence, petition the court . . . to change,
modify, or set aside any order of court previously made or to terminate the
jurisdiction of the court.â€
“At a
hearing on a motion for change of placement, the burden of proof is on the
moving party to show by a preponderance of the evidence that there is new
evidence or that there are changed circumstances that make a change of
placement in the best interests of the child.â€
(In re Stephanie M. (1994) 7
Cal.4th 295, 317.) “After the
termination of reunification services, the parents’ interest in the care,
custody and companionship of the child are no longer paramount. Rather, at this point ‘the focus shifts to the
needs of the child for permanency and stability’ [citation], and in fact, there
is a rebuttable presumption that continued foster care is in the best interests
of the child. [Citation.] A court
hearing a motion for change of placement at this stage of the proceedings must
recognize this shift of focus in determining the ultimate question before it,
that is, the best interests of the child.â€
(Ibid.) “This
determination [is] committed to the sound discretion of the juvenile court, and
the trial court’s ruling should not be disturbed on appeal unless an abuse of
discretion is clearly established.†(
In our view, the juvenile court
acted within its discretion in determining that a change of placement
was not in the minors’ best interests. Our review shows the court properly evaluated the evidence and
requested further information as to Father’s circumstances at the
hearings. With respect to Father’s
changed circumstances, Father provided evidence he was employed and owned a
home in Michigan. At the September 22, 2011 hearing, the court requested
verification of Father’s claims that he was employed; proof of home ownership;
information regarding other residents in Father’s home, if any; and a report on
the minors’ wishes. At the
October 27, 2011 hearing, the court ordered an ICPC report on Father in
Michigan; an update on the minors’ wishes; and gave DCFS discretion to
liberalize Father’s visits with the minors in California before continuing the
matter to February 1, 2002. At that
hearing, Father’s counsel stated that she had been able to obtain documentation
that Father had completed his parole but had not been able to obtain paperwork
to confirm that Father had completed domestic violence counseling. The court commented that it had reviewed
carefully all the documentation in the case and noted the long history of DCFS
involvement in the family. While the
court noted that “it is nice that
[Father] is stepping up,†it concluded that Father had not demonstrated the
necessary change in circumstances. The
court noted that the minors’ best interests were the focus at that stage of the
proceedings, stating that its job was to protect the minors. The court recognized that it would be
difficult for Father to visit the minors but that it was necessary for Father
to “step up†his visitation with the minors.
We conclude the juvenile court did not abuse its
discretion in determining that there did not exist new evidence or changed
circumstances that made a change of placement in the best interests of the
minors. In addition to the above, we
note Father had not seen the minors in the past five years because he was
incarcerated and thereafter chose to move to Michigan. The minors had bonded with their caregivers,
who were willing to provide a permanent home for them. And D.C. and A.C. had indicated that although
they wished to live with Father, they would be willing to live under legal
guardianship with T.O.; they were happy and comfortable with T.O.; had put down
roots in the community; and had been in foster care for over two years. S.L. wanted to live with Father only to avoid
separation from D.C. and A.C. and said that Mother told her to tell DCFS that
she wanted to live with Father. Father also argued
that he had not been convicted of a violent felony and should not have been
denied reunification services under section 361.5,
subdivision (b)(12), and the record does not show otherwise. But, although it appears the court erred in
denying reunification services based on Father’s alleged conviction for a
violent felony, provision of services would not have changed the result. Father had not taken advantage of
opportunities to establish a relationship with the minors through
visitation. Thus, DCFS had not been able to observe whether Father’s
relationship and parenting skills were appropriate. And DCFS would not be able to provide
reunification services in Michigan.
We conclude the juvenile court did not abuse its discretion in denying
Father’s fourth section 388 petition at the hearing on February 1, 2012.
D. The juvenile court did not abuse its
discretion when it denied Father’s fifth section 388 petition without a hearing
on March 19, 2012
contends that the juvenile court abused its discretion when it denied Father’s fifth section 388 petition without a
hearing on March 19, 2012. We disagree.
Section
388, subdivision (d) provides: “If it
appears that the best interests of the child may be promoted by the proposed
change of order, recognition of a sibling relationship, termination of
jurisdiction, or clear and convincing evidence supports revocation or
termination of court-ordered reunification services, the court shall order that
a hearing be held and shall give prior notice . . . .â€
“[I]f
the liberally construed allegations of the petition do not make a prima facie
showing of changed circumstances and that the proposed change would promote the
best interests of the child, the court need not order a hearing on the
petition.†(In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) “The prima facie requirement is not met
unless the facts alleged, if supported by evidence given credit at the hearing,
would sustain a favorable decision on the petition.†(
abuse of discretion. (
We
conclude the juvenile court did not abuse its discretion by summarily denying
Father’s section 388 petition without a hearing. Our
review of Father’s fifth section 388 petition
shows that he merely alleged
general, conclusory allegations, which fail to establish a prima facie
showing. (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) The petition alleged he had made “vast lifestyle
changes as evidenced by his approved home study by the state of [Michigan].†Although Father maintained telephonic
contact, had a job, and had purchased a house, he had not visited the minors
for five years and did not provide evidence that he had attended a domestic
violence class.
Nevertheless, Father contends he established a prima facie
case of a change of circumstances and that the parties and the court were
unaware of Michigan’s completed ICPC report at the February 1, 2012
hearing. But the court admitted the
last-minute information of the ICPC report into evidence at the
February 1, 2012 hearing. In the
last-minute information, DCFS
reported its concerns with Michigan’s completed ICPC report, disagreeing with the
report’s favorable assessment because of Father’s attempted suicide;
depression; lack of visits; DCFS’s inability to assess interaction between Father and the minors;
the minors’ vacillation on whether they wanted to live with Father; the minors’
current placement where all their needs were being met; D.C.’s and A.C.’s bond
with T.O.; S.L.’s lack of interest in living with Father; and the inability of
DCFS to provide reunification services for Father out of state. Even if, as Father argues, the court and
counsel were unaware of the ICPC report at the February 1, 2012 hearing,
in our view the court did not abuse its discretion in refusing to grant Father
a hearing on his fifth section 388 petition.
Between the February 1, 2012 hearing and the March 19, 2012
hearing, Father had not visited the minors; nor had he completed a domestic
violence class. The ICPC report
indicated, as had been reported previously, that Father is employed full-time,
owns a home, and has family support.
Other than recommending that Father
“be given the opportunity to provide a stable and loving home for his
children†and that he “appears to be passionate about his children,†the ICPC
report did not provide new information.
For the same reasons set forth in part C, ante, the court did not abuse its
discretion in determining that there did not exist new evidence or changed
circumstances that made a change of placement in the best interests of the
minors. We conclude that Father did not
establish a prima facie showing of change of circumstances and that a change of
order would be in the best interests of A.C., D.C., and S.L.
Accordingly,
we conclude that the juvenile court did not err in denying Father a hearing on
his fifth section 388 petition.
E. The juvenile court abused its discretion when
it granted D.C.’s and A.C.’s legal guardian discretion over the frequency and
duration of Father’s visits
Father contends that the juvenile
court abused its discretion by delegating Father’s visitation rights to D.C.’s
and A.C.’s legal guardian, without providing guidelines regarding the frequency
of visits. We agree.
Section 366.26, subdivision (c)(4)(C),
requires the juvenile court to make an order for visitation with the parents or
guardians unless the court finds that visitation would be detrimental to the
child. While the court may not
delegate authority to the legal guardian to decide whether visitation will
occur, it may delegate authority to the legal guardian to decide the time,
place, and manner in which visitation will take place. (In re
M.R. (2005) 132 Cal.App.4th 269, 272–274 [order stating “[v]isitation
between the child and parents shall be supervised and arranged by the legal
guardians at their discretion†improper, and on remand, court ordered to
specify frequency and duration of visits]; In
re Rebecca S. (2010) 181 Cal.App.4th 1310, 1313, 1314 [visitation order
that parents to have “monitored visits . . . guardian is to arrange
the frequency, location, duration, et cetera, taking into consideration the
children’[s] well-being†improperly allowed guardian to decide whether
visitation will actually occur].) We
review the court’s order for abuse of discretion. (In re
M.R., at p. 274.)
Here, the visitation order provided
for monitored visits — with time, place, and manner to be determined by D.C.’s
and A.C.’s legal guardian — but did not specify the frequency and duration of
visits. The order essentially delegated
to the legal guardian the discretion to determine the visitation by Father. The court had already determined that
visitation with Father was warranted and appropriate and, therefore, the court
abused its discretion in failing to schedule the frequency or duration of the
visits in order to ensure the court’s goal of maintaining and encouraging a
parental relationship between Father and the minors.
DISPOSITION
The March 19, 2012 order
granting T.O. legal guardianship over D.C. and A.C. and the February 1,
2012 order granting long-term foster care for S.L. are reversed and the case is
remanded to the juvenile court with directions to order DCFS to provide the
Cherokee Nation with proper notice of the proceedings under the ICWA. If, after receiving proper notice, a tribe
determines D.C., A.C., and S.L. are Indian children as defined by the ICWA, the
juvenile court shall proceed in conformity with the provisions of the
ICWA. If no tribe indicates D.C., A.C., and S.L. are Native American
children within the meaning of the ICWA, the juvenile court shall reinstate the
orders of legal guardianship for D.C. and A.C. and long-term foster care for
S.L. The juvenile court shall then modify D.C.’s and A.C.’s
visitation order to specify the frequency and duration of Father’s visits with
D.C. and A.C.
NOT TO BE PUBLISHED.
MALLANO,
P. J.
We concur:
ROTHSCHILD, J.
JOHNSON
, J.
name="_ftn1" title="">[1] Undesignated statutory references are to the
Welfare and Institutions Code.
