Guardianship of K.C.
Filed 12/31/12
Guardianship of K.C. CA1/3
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIRST APPELLATE DISTRICT
DIVISION THREE
Guardianship of K.C., a Minor.
R.A.,
Petitioner and
Respondent,
v.
A.A.,
Objector and Appellant.
A134315
(Mendocino County
Super. Ct. No. SCUK
CVPG 11 25730)
Mother
A.A. appeals from an order granting guardianship of her daughter, K.C., to her
maternal aunt, R.A., in a proceeding brought under the
Guardianship-Conservatorship Law provisions of the Probate code. Most of the issues Mother raises were
forfeited because they were not first presented to the superior court. The remaining issues present no
Mother is a member of the
Hopland Band of Pomo Indians (Hopland Tribe).
She had a long history of substance abuse, domestic violence and
demonstrated neglect that led to the removal of her two older children. Reunification efforts failed and, in 2008,
the children were placed in a guardianship with R.A. Daughter K.C. was born in August of
2008.
After
several referrals to the
County Child Protective Services (the Agency), mother was warned that she
was in danger of having K.C. removed from her without reunification
services. For that reason, mother
entered a voluntary agreement with the Hopland Tribe designating R.A. as K.C.’s
Indian Custodian. K.C. has lived with
her aunt and older siblings since she was six months old.
R.A.
and K.C.’s maternal grandmother attempted to facilitate visitation between
mother and the children over the years, but mother’s drug use and other
inappropriate behavior imposed significant challenges. During a supervised visit in March 2011
mother became hostile and violent, threatened grandmother with a knife, and refused
to return K.C. to R.A. until the police intervened several hours later. Grandmother subsequently obtained a
On
the Agency’s advice, R.A. petitioned the probate court to be appointed K.C.’s
guardian. Her petition was heard on
April 5. Mother was given notice of the
hearing by telephone and by personal delivery at her home, but did not attend. The court found good cause for a temporary
guardianship and appointed psychologist Louis Bates to investigate. K.C.’s father, C.C., was incarcerated at the time. He did not participate in the guardianship
proceedings and is not a party to this appeal.
Mother
appeared at the next hearing on May 5 and said she had not been properly
notified of the April 5 hearing. The
court appointed counsel for her, and set a review of the temporary guardianship
for May 17. On May 17th mother renewed
her objection to the notice for the initial hearing and requested
visitation. The court suggested that the
parties hire a private visitation supervisor, since no agencies in the county
provided such services without a fee in guardianship cases brought under the
Probate Code. R.A. told the court that
Lorraine Laiwa of the Indian Child Preservation Program in Ukiah was available
to assist with visitation, and the court recommended that she be
contacted.
At
the next hearing, held on June 29, R.A.’s attorney told the court that Laiwa
was willing and available to supervise visits, but only if mother submitted a
clean drug test and provided written proof that she had been actively engaged
in a drug counseling program for at least 30 days. Mother advised the court that she was
attending A.A. meetings and working at a casino. The court agreed to refer the parties to
Family Enhancement Services (FES), provided they understood that FES would have
discretion to possibly decline to provide supervision. If FES were to accept the case, the court
ordered weekly visits.
In
September the probate court referred the case to the Agency pursuant to Welfare
& Institutions Code section 329.
worker to commence proceedings in the juvenile court, the application shall be
in the form of an affidavit alleging that there was or is within the county, or
residing therein, a child within the provisions of Section 300, and setting
forth facts in support thereof. The
social worker shall immediately investigate as he or she deems necessary to
determine whether proceedings in the juvenile court should be commenced. If the social worker does not take action
under Section 330 and does not file a petition in the juvenile court within
three weeks after the application, he or she shall endorse upon the affidavit
of the applicant his or her decision not to proceed further and his or her
reasons therefor and shall immediately notify the applicant of the action taken
or the decision rendered by him or her under this section.â€
Mendocino
County social worker Edward Fox responded on behalf of the Agency. Mr. Fox declared that he had decided against
initiating juvenile court proceedings on behalf of K.C., and that he was
authorized to make that decision. An
attached “delivered service log†described his research of the relevant case
files and Agency records. He concluded
that reunification services would not be offered due to mother’s failure to
reunify with her older children.
Dr.
Bates submitted a 22-page guardianship report to the probate court. His investigation included reviewing files
from the juvenile and probate court proceedings, police reports, and CLETS
background checks on the involved adults.
He also conducted home and office interviews with mother, the maternal grandmother,
R.A., and K.C., and spoke with Laiwa, K.C.’s sibling D.A., and ICWA workers
from the Hopland and Scotts Valley Tribes.
Dr.
Bates reported that mother had a long history of violent relationships and
substance abuse and had neglected her children.
An incomplete psychological
assessment suggested that she suffered from a personality disorder. Dr. Bates agreed with the assessment and
noted mother’s rigidity in thinking, high degree of blame and denial,
narcissistic orientation, drug use, violence, lying, and manipulation. Mother was living with her disabled
grandmother in Kelseyville and had no means to provide for a child. “In addition, [K.C.] doesn’t really know
[mother] since she’s lived with [R.A.] most of her life and what [K.C.] does
know of her mother is not good. [K.C.]
talked to the undersigned about [mother] being ‘mean’ to family members and
[K.C.] didn’t want to be around her when [mother] is like that.†Mother had refused to undergo drug testing or
show she had participated in services.
The Hopland Tribe believed she had not changed her pattern of
intermittent drug abuse.
On
the other hand, Dr. Bates reported that R.A. had adequate parenting skills,
cared deeply about the three children, and seemed committed to their best
interests. Her home was safe and secure
and K.C. was strongly bonded to her aunt and siblings. Dr. Bates concluded it would be detrimental
to place K.C. with mother. Instead, he
recommended permanent guardianship with R.A. and strictly supervised visitation
with mother until she provided long-term proof of a clean and sober
lifestyle.
The
hearing on the permanent guardianship lasted a full day. The court heard testimony from K.C.’s
preschool teacher, the social worker assigned to D.A. and S.A.’s dependency
case, Dr. Bates, Laiwa, R.A., and mother.
Each of the witnesses, except for mother, gave testimony that was
supportive of the proposed guardianship.
At
the conclusion of the hearing the court found that returning K.C. to mother’s
custody would be detrimental to her physical safety and emotional
well-being. The court further found that
active efforts had been made to prevent the breakup of the Indian family. It explained: “As to both parents, there was
a long multi-year history of involvement with CPS with [K.C.’s] siblings. And in the CPS cases, the reunification
efforts were unsuccessful.
[¶] After [mother’s] reunification services had been termination [
. . . , she continued to engage in conduct that resulted in CPS
threatening to remove [K.C.] from her care.
That resulted in voluntary placement with [R.A.] which has continued
from 2009 until today. [¶] Since
that time, [mother] has had the opportunity . . . to continue in
services. I don’t find compelling her
uncorroborated testimony that she remains clean and sober. She has indicated that services were
available to her [and] that she has attended such as Celebrate Recovery. [¶]
She was offered visitation through Indian Child Welfare Office, through
family members supervising and for a time through CPS. [Mother] was not able to successfully comply
with beneficial visitation. She acted
out. She missed visits. And I don’t believe that any further services
would have been appropriate given [mother’s] lack of cooperation with them,
simply would have been futile as evidenced by her rejection of Ms. Laiwa’s most
recent offer to supervise visits between herself and [K.C.] so long as she was
in counseling and submitted drug tests, which she rejected.â€
The
court found that K.C. required a guardian because her parents were unable to
care for her, and that R.A. was the appropriate guardian. It also found that visits with mother would
not be beneficial at that time: “[K.C.] has lived with [R.A.] most of her life,
she’s bonded to her as her primary caretaker.
There’s evidence that seeing her mother has been sporadic. When it has happened it’s been upsetting for
her and there are multiple occasions when her mother was not appropriate during
the visits. And I’m referring
specifically to the evidence about the November 2010 visit and the March 2011
visit that resulted in the supervisor having to get a restraining order against
her daughter. So I’m not going to order visits
at this time.†The court advised mother
to obtain a psychological evaluation, comply with any treatment recommendations
made as a result, and provide proof of a substantial period of sobriety if she
wanted to seek visitation in the future.
This
appeal timely followed.
Forfeited
It is
fundamental that a failure to object at trial generally waives the right to
claim error as grounds for reversal on appeal.
(In re Noreen G. (2010) 181
Cal.App.4th 1359, 1379; In re Aaron B.
(1996) 46 Cal.App.4th 843, 846.) The
purpose is to encourage parties to bring errors to the attention of the trial
court, so that the trial court has an opportunity to correct them. (In re S.B. (2004) 32 Cal.4th 1287,
1293.) “At the risk of sounding like a
broken record, we again cite the general rule: ‘[A] party is precluded from
urging on appeal any point not raised in the trial court. [Citation.]
Any other rule would “ ‘ “permit a party to play fast and
loose with the administration of justice by deliberately standing by without
making an objection of which he is aware and thereby permitting the proceedings
to go to a conclusion which he may acquiesce in, if favorable, and which he may
avoid, if not.†’ †(
p. 846.)
The
rule has particular importance in child custody matters. “[T]he appellate court’s discretion to excuse
forfeiture should be exercised rarely and only in cases presenting an important
legal issue. [Citations.] Although an appellate court’s discretion to
consider forfeited claims extends to dependency cases [citations], the
discretion must be exercised with special care in such
matters. . . . Because
these proceedings involve the well-being of children, considerations such as
permanency and stability are of paramount importance.†(In re S.B.,
supra, 32 Cal.4th at p. 1293.)
Application
of the forfeiture doctrine precludes appellate consideration of most of
mother’s numerous arguments. Her primary
claim is that the probate court was required to exercise its discretion under
section 331
title="">[2] to seek juvenile court
review of the Agency’s decision not to commence a dependency proceeding. In support of this claim she argues that Mr.
Fox might not actually be a social worker, and therefore may not have been
qualified to respond to the probate court’s referral; that his investigation
was inadequate; that the probate court should have served the referral on the
Agency earlier than September; that K.C. was at risk of harm in R.A.’s care
prior to the temporary guardianship; and that
review of an agency’s decision not to file a dependency petition in all cases
that involve allegations of parental unfitness and/or which implicate the
Indian Child Welfare Act (ICWA). Mother
also maintains the court violated her due process rights when it declined to
authorize visitation at the conclusion of the guardianship proceedings.
Mother
raised none of these issues in the probate court, and we are not persuaded by
her attempts to justify her failure to do so.
She maintains that she was not required to ask the court to request that
the juvenile court review the Agency’s decision, because, as we understand her
argument, the court was under a mandatory
statutory duty to make such a request.
She is mistaken. Section 331
plainly says that a person (here, the probate court judge) who applies to the
social worker to initiate juvenile court proceedings “may†seek juvenile court
review of an Agency’s decision not to do so.
The auxiliary verb “may†in the statutory language vests the trial court
with discretion. Although Probate Code
section 1513, subdivision (c) requires the probate court to refer a
guardianship case to CPS for investigation when parental unfitness is alleged
(see Guardianship of Christian G.
(2011) 195 Cal.App.4th 581, 595–596), the probate court did just that in this
case. While it declined to request
juvenile court review of the outcome of that investigation, it was under no
duty to do so.
Mother
also argues she had no opportunity to object to the probate court’s decision
not to seek review of the Agency’s rejection of
at all times following the referral to the Agency and could have objected to
the Agency’s decision, or simply inquired about the status of the referral at
any time. That she did not do so comes
as no surprise, as she originally agreed to an informal guardianship with R.A.
precisely so that the Agency would not file
a dependency case.
Mother
could also have objected to the court’s visitation order, but did not. In any event, the evidence amply supports the
court’s view that visitation would not be in K.C.’s best interest unless and
until mother could demonstrate that she had attained sobriety.
Mother
raises a laundry list of other arguments, repackaged in various forms, against
application of the forfeiture doctrine.
These include that her attorney could not fairly have been expected to
be aware of or anticipate the need to petition the juvenile court under section
331; that her case presents a primarily legal question; that it presents an
issue of first impression, likely to recur and of continuing public interest; and
that it would be more efficient to excuse her waiver than require her to claim
ineffective assistance of counsel in a petition for a
referred the case for juvenile court review (had the issue been preserved for
appeal) would be heavily dependent on the specific facts of the case, and
resolution of the claim on appeal would add nothing of discernable value to the
law. In any event, there is no
indication in the record that the result would have been different if mother’s
counsel had raised the contention in the probate court. This is not one of the rare cases (see
p. 1293) that warrant an exercise of appellate discretion to excuse a
litigant’s failure to raise his or her claim in the trial court.
Supports the Active Efforts Finding
Mother
contends the finding that active efforts were made to prevent the breakup of the
Indian family is not supported by substantial
evidence. (See 25 U.S.C.
§ 1901(1)(i); § 361.7, subd. (a); Cal. Rules of Court, rules
5.480, 5.484(c).) We disagree. The juvenile court removed K.C.’s older siblings
and appointed R.A. their legal guardian after mother failed to complete
court-ordered family reunification services that included parenting classes,
drug treatment, drug testing, and therapy.
The juvenile court found by clear and convincing evidence that active
efforts were made to provide remedial services and rehabilitative programs
designed to prevent the breakup of the Indian family, and that those efforts
were unsuccessful.
Over
the next two years, little changed. Gail
Viera, mother’s social worker, worked with mother on her domestic violence and
drug use issues in order to keep K.C. “out of the system†and at home with
mother. Viera encouraged mother to keep
clean and sober, conducted random drug tests, tried to get her into therapy,
and enlisted the Hopland Tribe’s help with services and, once R.A. became
K.C.’s Indian Custodian, with visitation.
Although K.C. was not in the dependency system, Viera included her in
mother’s supervised visitation with her older siblings. Other visits were supervised by R.A., K.C.’s
maternal grandmother, and the Hopland Tribe’s ICWA worker. Mother was also offered visits supervised by
Lorraine Laiwa, but she refused to comply with the precondition that she test
clean for drugs.
This
record, including but not limited to the efforts made in S.A. and D.A.’s cases,
amply supports the finding that active efforts were made to prevent the breakup
of this family. “[D]enial of services in
an agency removal case is not inconsistent with the active efforts requirement
if it is clear that past efforts have met with no success.†(Adoption
of Hannah S. (2006) 142 Cal.App.4th 988, 998; see also Letitia V. v. Superior Court (2000) 81 Cal.App.4th 1009,
1017.) That is the case here.
III.
R.A.’s Apparent Failure to File General Instructions Does Not Warrant
Reversal
Mendocino County Superior
Court Local Rule 13.12 provides that “In all conservatorship and guardianship
matters, no letters shall issue unless the conservator or guardian have
executed and filed with the court General Instructions. The form of general instructions may be
obtained from the clerk’s office.â€
Apparently no such general instructions were filed in this case, but the
omission is not material. First, there
is no indication that mother ever brought the omission to the probate court’s
attention, so the issue is not properly before us. Second, and independently, Mother has not
even attempted to show that any harm resulted therefrom. None is apparent. (See Cal. Const., Art. VI, § 13.)
appointing R.A. as K.C.’s guardian is affirmed.
_________________________
Siggins,
J.
We concur:
_________________________
McGuiness, P.J.
_________________________
Jenkins, J.
name="_ftn1" title="">[1] Unless otherwise noted, all
further statutory citations are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] Section 331 provides: “When any person has applied to the social
worker, pursuant to Section 329, to commence juvenile court proceedings and the
social worker fails to file a petition within three weeks after the
application, the person may, within one month after making the application,
apply to the juvenile court to review the decision of the social worker, and
the court may either affirm the decision of the social worker or order him or
her to commence juvenile court proceedings.â€
