In re Mariah G.
Filed 7/24/12 In re Mariah G. CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re MARIAH G., a Person
Coming Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
CARMEN G.,
Defendant and Appellant.
D061511, D061578
(Super. Ct.
No. EJ3479A-B)
APPEAL from
order of the Superior Court
of
County, Ronald F. Frazier and Gary M. Bubis, Judges. Affirmed.
At the
dispositional hearing on a supplemental
petition (Welf. & Inst. Code,
§ 387), the juvenile dependency court limited Carmen G.'s right to make
educational decisions for her daughter, Mariah G. (§ 361, subd. (a)). Carmen appeals, contending the court erred by
limiting her right to make educational decisions.
BACKGROUND
In November
2011, the San Diego County Health and
Human Services Agency (the Agency) filed a dependency petition for
14-year-old Mariah. The petition alleged
that beginning in November 2010, her older half-brother, Billy, had
inappropriately touched her and her younger sister, L.G. Carmen was informed of Mariah's allegations,
but did not believe her. Carmen told
Mariah to "shut her mouth."
Billy remained in the home.
Mariah and
L.G. were detained with a relative.
Mariah reported that a year earlier, L.G. had told Carmen that Billy had
touched L.G. Carmen did not believe L.G.
Mariah also
said Billy first molested her when she was 10 or 11 years old and the most
recent incident occurred in the summer of 2011, when she was 13 years old. Mariah was afraid to tell the social worker
and a forensic interviewer exactly what Billy had done. Carmen had told Mariah that if she said
anything, Child Protective Services would take her away, L.G. would be placed
in foster care, Billy would go to jail and Mariah would be responsible for
ruining his future. Carmen insisted
Mariah was lying and had told Mariah to "get out of her house." Mariah did not want to go home to Carmen.
Mariah
overcame her reluctance and disclosed the details of the molestations. In December 2011, the Agency filed an amended
petition adding those details. The
amended petition alleged that between 2007 and July 2011, Billy sexually abused
Mariah on multiple occasions. He entered
her bedroom and removed her clothing. He
touched her genitals with his hand and penis.
He penetrated her vagina with his hand and penis. He ejaculated in her bed.
In a forensic interview, Billy
acknowledged he had touched Mariah inappropriately. Carmen nevertheless insisted Billy had not
molested Mariah. Carmen said she would
like to attend family counseling with Mariah and wanted Mariah to undergo
substance abuse treatment. When she
lived with Carmen, Mariah used marijuana and alcohol "to erase" what
was happening to her.
In January
2012, the court made true findings on the amended petition, and ordered Mariah
removed from Carmen's custody and placed with a relative. The court limited Carmen's right to make educational
decisions for Mariah and appointed Mariah's caregiver to make those decisions
(§ 361, subd. (a)).
Mariah had
been having problems in school and was failing three classes. By the end of December 2011, her grades had
improved, but she was upset because Billy attended the same school and took the
same school bus, and he had approached her on several occasions. In January 2012 Mariah's relative caregiver
suggested that Mariah be transferred to a different school. Mariah wanted to be placed at San Pasqual
Academy. The Agency, the caregiver and
Carmen agreed with this plan.
In February
2012, the Agency filed a supplemental petition (§ 387) requesting a change
of placement. The Agency recommended
that Carmen's right to make educational decisions be limited, and the rights be
assigned to Mariah's Indian
Child Welfare Act (ICWA) representative.
(25 U.S.C. § 1901 et seq.)
In February
2012, the court sustained the supplemental
petition and gave the Agency discretion to detain Mariah at San Pasqual
Academy. By March 1, Mariah had entered
San Pasqual Academy and was doing well in school. She steadfastly refused contact with Carmen.
Soon after
Mariah moved to San Pasqual Academy, Carmen telephoned and left a message for
her. Mariah returned the call and told
Carmen she hated her, did not want any contact with her and did not want Carmen
"to have any rights over her."
Mariah told the social worker she did "not want to have anything to
do with [Carmen] and [did] not want [Carmen] making any decisions about her
future."
On March 5, 2012, the Agency filed a
modification petition (§ 388) requesting suspension of Carmen's
educational rights. That day, at the
dispositional hearing on the supplemental petition, the court ordered Mariah
placed at San Pasqual Academy. The
court limited Carmen's right to make educational decisions for Mariah and
appointed Mariah's ICWA representative as her educational representative.
DISCUSSION
Carmen
contends the juvenile court erred by limiting her right to make educational
decisions because she was willing and able to make those decisions.
review, "bearing in mind '[t]he focus of dependency proceedings is on the
child, not the parent' [citation]."
R.W. (2009) 172 Cal.App.4th 1268, 1277.)
Carmen also contends the limiting order violated her constitutionally
protected liberty interest in controlling Mariah's education, a contention
requiring de novo review (In re Allison
J. (2010) 190 Cal.App.4th 1106, 1112).
We conclude the juvenile court did not abuse its discretion by limiting
Carmen's right to make educational decisions for Mariah and there was no
"The
law recognizes the vital role that education plays in today's
society." (In re Samuel G. (2009) 174 Cal.App.4th 502, 509.) " '[E]ducation is a major determinant of an
individual's chances for economic and social success in our competitive society; . . . education
is a unique influence on a child's development as a citizen and his
participation in political and community life.' "
(Ibid., quoting
584, 605.) " '[T]he distinctive and priceless function
of education in our society warrants, indeed compels, our treating it as a
"fundamental interest." ' " (
quoting Serrano v. Priest, supra, at
pp. 608-609.)
"Parents
have a constitutionally protected liberty interest in directing their
children's education." (
1276.) This interest " 'is
subject to limitation only "if it appears that parental decisions will
jeopardize the health or safety of the child, or have a potential for significant
social burdens." [Citation.]' [Citation.]" (Jonathan
L. v. Superior Court (2008) 165 Cal.App.4th 1074, 1103.)
The state's
responsibility "for educating all children within its borders"
extends to each child who is the subject of a dependency proceeding "at every
stage of the child's case." (
at p. 509.) When the child "is
adjudged a dependent child of the court [under section 300], the court may
limit the control to be exercised over the dependent child by any parent . . . . The limitations may not exceed those
necessary to protect the child. If the
court specifically limits the right of the parent . . . to
make educational . . . decisions for the child, the court
shall at the same time appoint a responsible adult to make
educational . . . decisions . . . ."
(§ 361, subd. (a).) At the
review hearings held every six months, "[i]f the
parent . . . is unwilling or unable to participate in
making an educational decision for his or her child, or if other circumstances
exist that compromise the ability of the parent . . . to
make educational decisions for the child, the county welfare department or
social worker shall consider whether the right of the
parent . . . to make educational decisions for the child
should be limited. If the supplemental
report makes that recommendation, the report shall identify whether there is a
responsible adult available to make educational decisions for the child
pursuant to Section 361."
(§ 366.1, subd. (e).) At
each review hearing, "[t]he court must consider the child's education,
including whether it is necessary to limit the right of the
parent . . . to make educational decisions for the
child . . . ."
(Cal. Rules of Court, rule 5.708(f).)
In the
instant case, the limiting order at issue was made at the dispositional hearing
on the supplemental petition. That
hearing occurred after the original dispositional hearing, at which
section 361, subdivision (a) applied, and before the six-month review
hearing, at which section 366.1, subdivision (e) would apply. The challenged order was proper under either
section.
Unlike
section 366.1, subdivision (e), section 361, subdivision (a) does not
expressly condition limitation of a parent's educational rights on an inability
or unwillingness to make educational decisions.
Nevertheless, inability and unwillingness are factors for the court to
consider when limiting educational rights at the original dispositional
hearing. This is so because a parent's
inability and unwillingness to make educational decisions are relevant to a
determination whether a limitation is "necessary to protect the
child." (§ 361, subd.
(a).) Moreover, "[a]ll educational
decisions must be based on the best interests of the child." (In re
Samuel G., supra, 174 Cal.App.4th at p. 510.) A determination of the child's best interests
necessarily includes a consideration of the parent's inability and
unwillingness to make educational decisions.
The
juvenile court found Carmen was "unable to essentially effectively make
educational decisions at this point in time" and "[t]he breakdown in
communication between Mariah and [Carmen] could affect the way [Carmen] makes
decisions in this matter." The
record amply supports these findings.
Although Carmen may have been willing to make educational decisions, as
a practical matter she was unable to do so.
The limitation of Carmen's right to make educational decisions was in
Mariah's best interests, and the court did not go beyond what was necessary to
protect Mariah.
Carmen made
an offer of proof she would testify that Mariah called her on February 22,
February 29 and March 3, 2012. The
record does not disclose whether they spoke to each other on those dates, and
if so, what was said. Since the
beginning of the case, Mariah had refused contact with Carmen. On March 1, Mariah said she had returned a
call from Carmen and told Carmen she hated her, did not want any contact and
did not want Carmen "to have any rights over her." Mariah's understandable antipathy toward
Carmen and refusal of contact made it impossible for Carmen to determine
Mariah's best interests and make effective educational decisions. Carmen's denial of the molestation and cruel
reaction to Mariah's disclosure demonstrate that Carmen did not have Mariah's
best interests at heart.
Carmen
asserts she "had historically been concerned for Mariah's welfare and had
brought her to psychotherapy to address her depression." This is apparently a reference to a March
2011 report to Child Protective Service after Mariah made suicidal
statements. At that time, Carmen
arranged for counseling for Mariah. This
is the only evidence Carmen had any concern for Mariah, and pales in comparison
to Carmen's subsequent callousness and longstanding pattern of denying her
daughters had been sexually abused. In
December 2011, Mariah's presumed father reported that about five years
previously, Mariah said someone had touched her at night, but Carmen convinced
Mariah it was a ghost. Mariah's older
sister reported she had been raped by Carmen's boyfriend, and when she told
Carmen, Carmen called her a liar. Carmen
never took responsibility for failing to protect Mariah and causing her
emotional distress, and made no effort to understand her feelings and
needs. The court did not abuse its
discretion by limiting Carmen's right to make educational decisions for
Mariah.
For the
reasons set forth above, the court's restriction of Carmen's right to make
educational decisions was necessary to protect Mariah's welfare. The order was narrowly tailored to satisfy
the compelling governmental interest in ensuring that protection. (Jonathan
L. v. Superior Court, supra, 165 Cal.App.4th at pp. 1101-1103.) There was no violation of Carmen's
constitutional rights.
DISPOSITION
The order is affirmed.
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
McDONALD, J.
name="_ftn1" title="">[1]
All further statutory references
are to the Welfare and Institutions Code.
name="_ftn2" title="">[2]
Carmen also filed a notice of
appeal from the findings and orders made at two earlier hearings, the original
jurisdictional and dispositional hearing and the detention hearing on the
section 387 petition. That notice of
appeal referred to Mariah and her younger sister, L.G. The two appeals were consolidated. Carmen makes no contentions regarding the
earlier hearings or L.G.
