In re Gabriel C.
Filed 1/11/13 In
re Gabriel C. CA2/8
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 EIGHT
In re GABRIEL
C., a Person Coming Under the Juvenile Court Law.
B242721
LOS ANGELES
COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
F.C.,
Defendant and Appellant.
(Los Angeles County
Super. Ct. No. CK79674)
APPEAL
from orders of the Superior Court of
County. Margaret Henry, Judge. Affirmed.
Suzanne
Davidson, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F. Krattli,
County Counsel, James M. Owens, Assistant County Counsel and Jessica A.
Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
__________________________
Appellant
F.C. (mother) appeals from the July 5, 2012 orders denying her Welfare and
Institutions Code section 388 petition without a hearing and terminating
her parental rights to her son, Gabriel C.
the Department of Children and Family
Services (DCFS) and the caretakers the court’s authority to order visits;
and (2) denial of her section 388 petition was an abuse of discretion.
BACKGROUND
Mother, born in
1983, was herself a child of the dependency system since the age of three. She was in 20 different placements between
the ages of 15 and 18, including foster homes, group homes, juvenile hall and
finally, MacLaren Children’s Center.
Mother was 22 years old when Gabriel was born in
February 2005. She has identified three
different men as Gabriel’s father. Two
cannot be found. The third,
Earl M., denies that he is Gabriel’s biological father but he was
Gabriel’s legal guardian when Gabriel was three months old and mother was
incarcerated.
name="_ftnref3" title="">[3]
In October 2008,
when Gabriel was three years old, mother agreed to a Voluntary Family
Maintenance plan with DCFS. On November 2, 2009, mother was arrested for domestic violence after she stabbed her
girlfriend, Tyesha G. Acting on a
referral, a social worker went to mother’s home the next day and found Gabriel
with Tyesha. Then four-year-old Gabriel
explained to the social worker that his mother was not home because she had
stabbed Tyesha in the back because Tyesha was cheating on mother. Gabriel was detained that day and placed in
shelter care. On December 11, 2009,
Gabriel was released to Earl’s parents, Gloria and Winston W., where he has
remained throughout these proceedings.
Mother
eventually submitted on an amended petition which alleged recurring domestic
violence between mother and Tyesha, and the fact that mother left Gabriel in
Tyesha’s care despite her knowledge that Tyesha abused alcohol and engaged in
domestic violence, endangered Gabriel’s physical and emotional safety and
placed him at substantial risk of harm within the meaning of section 300,
subdivision (b).
After
mother was released from jail on or about December 22, 2009, DCFS arranged a
four-hour visit on Christmas Day followed by thrice weekly visits. Following a detention hearing on January 14,
2010, mother was ordered to participate in domestic
violence counseling, parent education, individual counseling and drug and
alcohol testing. DCFS was given
discretion to liberalize mother’s monitored visits.
According
to the report for July 2010 the six-month status review hearing (§ 366.21,
subd. (e)), mother was not in compliance with the case plan. Among other things, mother had missed a
series of drug tests and had canceled or been a no-show for 16 of 26 monitored
visits. Gabriel told the social worker
that he loved mother but wanted to continue living with Gloria and Winston. The court ordered that visits occur at a
location more convenient to mother.
For
the January 2011 status review hearing, DCFS reported that Gloria and Winston
were interested in adopting Gabriel.
Mother was participating in the court-ordered programs but she was not
taking her prescribed medications, and she refused to execute a release of
medical information form. Gloria
complained to DCFS that during monitored phone calls with Gabriel, mother
allowed other people to speak to Gabriel and that some of mother’s comments to
Gabriel were inappropriate. Mother, or
someone using her cell phone, had sent a number of inappropriate text messages
to Gloria. The court found mother in
compliance with the case plan and that she had made significant progress in
“alleviating or mitigating the causes necessitating placement in foster
care . . . .†It
ordered a supplemental report on the status of mother’s psychiatric
evaluation. The court subsequently
ordered DCFS to report on the possibility of liberalizing mother’s visits to
unmonitored.
At
the March 2011 progress hearing, DCFS recommended against liberalizing mother’s
visits because mother had been a no-show for a scheduled mental health
evaluation, had missed a drug test, was not forthcoming with information about
her current boyfriend, and had not been consistent in her visits. Also, Gabriel had expressed fear of mother to
both the social worker and Gloria. In a
letter to the court, Gloria complained about mother’s behavior. The court ordered mother to reschedule a
mental health evaluation and ordered individual counseling for Gabriel.
For
the May 2011 18-month permanency plan review hearing on May 5, 2011 (see
§ 366.22, subd. (a)), DCFS reported that mother had not consistently
called or visited Gabriel. When she did
visit, mother argued with Gloria in Gabriel’s presence. Gabriel was not sad when visits ended. The social worker observed that Gabriel
“interact[s] with the mother like he interacts with [the social worker] or any
other adult.†Gabriel said he liked
visiting mother, but did not want to live with her. Mother had stopped attending all
court-ordered programs but had completed only some of them. Notwithstanding one positive drug test (and
four missed tests), mother denied using drugs; she attributed the positive test
to sexual conduct with a man who had drug residue on his hands. Meanwhile, a few days before the hearing, mother told the
social worker that she “no longer wants to reunify with Gabriel. The mother stated that Gabriel is ‘happier’
in the home of the current caregiver.†Finding mother not in compliance with the case plan, the court
terminated mother’s reunification services, ordered an adoption home study of
Gloria and Winston and continued the matter for a .26 hearing. Pending that hearing, the court ordered
permanent placement services.
In July 2011, after not
visiting Gabriel for several months, mother asked to resume monitored visits
and telephone calls, but no visits ever occurred. In August 2011, mother changed her mind
again, telling the social worker that she did not intend to initiate any
further contact with Gabriel. Mother
apparently changed her mind a third time because there was one visit in
November 2011, and in a letter to the court dated April 24, 2012, Gloria asked
the court to admonish mother, who after a year of no contact had begun calling
Gabriel and begging him to come home, as well as leaving disturbing voice mail
messages for Gloria.
Meanwhile, the
.26 hearing was continued several times in order to notify the alleged
fathers. On June 27, 2012, mother filed
a section 388 petition seeking a home of parent placement or renewed
reunification services and unmonitored visits.
At the .26 hearing on July 5, the court summarily
denied mother’s section 388 petition.
Mother was the only witness at the .26 hearing that followed. She testified that Gabriel lived with her
until June 2005 when he was about three months old. For the next 18 months, mother was
incarcerated and Gabriel lived in a legal guardianship with Earl, son of
Gloria. During that time, mother saw
Gabriel every weekend. After mother was
released, Gabriel lived with her until she was arrested in November 2009 and he
was placed with Gloria. During mother’s
incarceration, Gloria would not allow any contact with Gabriel. After mother was released, she saw Gabriel about
every other weekend. Gloria sometimes
prevented visits. Mother last saw
Gabriel on February 29, 2012. Since
then, mother had tried to see him, but Gloria was unwilling to drive Gabriel or
allow anyone to pick up Gabriel. The
social worker told mother that Gloria had no duty to facilitate visits since
mother’s reunification services had been terminated. The court terminated all parental rights
finding by clear and convincing evidence that Gabriel was adoptable, that
adoption was in his best interests and that no exception to the preference for
adoption exists. Mother timely appealed.
DISCUSSION
The Trial Court Did Not Delegate Its Authority to Order Visitation
Mother contends
the order terminating her parental rights
should be reversed because the court improperly delegated its authority to
order visits to DCFS and Gloria. She
argues that after her reunification services were terminated and continued
visitation was ordered on May 5, 2011, DCFS and Gloria prevented mother from
visiting Gabriel in accordance with the court-ordered visitation schedule. We find no error.
Section 366.22,
subdivision (a) directs that, at the 18-month permanency plan review hearing,
the court must schedule a .26 hearing if it determines that return of the child
to his or her parent would create a substantial risk of detriment to the
child. “The court shall also order
termination of reunification services to the parent or legal guardian. The court shall continue to permit the parent
or legal guardian to visit the child unless it finds that visitation would be
detrimental to the child.†(
In Christopher D. v. Superior
Court (2012) 210 Cal.App.4th 60, 72-73 (Christopher
D.), the court recently explained that it “is the juvenile court’s
responsibility to ensure regular parentchild visitation occurs while at the
same time providing for flexibility in response to the changing needs of the
child and to dynamic family circumstances.
[Citations.] To sustain this
balance ‘the child’s social worker may be given responsibility to manage the
actual details of the visits, including the power to determine the time, place
and manner in which visits should occur.’
[Citation.] ‘Only when the court
delegates the discretion to determine whether any visitation will occur does
the court improperly delegate its authority and violate the separation of
powers doctrine.’ [Citation.]â€
Here, at the
January 14, 2010 detention hearing, the court ordered monitored visits with
DCFS discretion to liberalize. By the
time of the progress hearing on January 13, 2011, mother was regularly visiting
Gabriel once week a week for three hours.
In response to mother’s request for unmonitored visits or, in the
alternative, longer monitored visits, the court gave DCFS discretion to extend
mother’s visits. Over the next few
months, mother missed several visits and at the progress hearing on March 10,
2011, mother and Gloria blamed each other for the missed visits. The court ordered DCFS to set up a visitation
schedule and mother to confirm that she would be attending on the morning of
the visit. Mother did not appear at the
.22 hearing on May 5, 2011, at which the court terminated reunification
services, set the matter for a .26 hearing, and continued the monitored visit
order. Nor did she appear at the
continued .26 hearings on June 2 and November 3, 2011. Mother’s counsel did not alert the court to
any problems with visitation at any of those hearings. Mother appeared at the continued .26 hearing
on March 1, 2012, but did not complain about visitation. Visitation was an issue at the continued .26
hearing on May 3, 2012, at which mother and Gloria once again blamed one
another for missed visits. The court and
mother’s counsel had the following colloquy: “THE COURT:
The social worker can set up visits.
[¶] [MOTHER’S COUNSEL]: Just to be clear, mother is to contact the
social worker to set up monitored visitation at this point. And the current caregiver is to allow mother
those visits? [¶] THE COURT:
If I order the visits, I don’t think I have to go further and make it
sound like the caretaker hasn’t. There
seems to be a difference of opinion on that.
But the social worker to arrange for mother’s monitored visits. Set up a schedule.†From this colloquy, it seems clear that the
court did not credit mother’s claim that either DCFS or Gloria were preventing
mother from visiting Gabriel.
Under
at pages 72-73, the court properly exercised its duty to ensure visitation
by ordering DCFS to make a visitation schedule for mother. By doing so, the court did not delegate to
anyone the discretion to determine whether visits would occur.
B.
Summary Denial of Mother’s Section 388 Petition Was Not an
Abuse of Discretion
Mother contends
it was error for the court to deny a hearing on her section 388 petition
to reinstate reunification services. She
argues that it was “unfair for the court to focus on mother’s lack of
visitation when she was denied the chance to visit after her services were
terminated.†We disagree.
Section 388
permits a parent to petition for a change of a previous order when the change
would be in the child’s best interests.
one last chance to save a parent-child relationship following termination of
reunification services but before termination of parental rights. (In re
Jackson W. (2010) 184 Cal.App.4th 247, 258; In re Hunter S. (2006) 142 Cal.App.4th 1497, 1506-1508.)
To succeed on a
section 388 petition, the parent must present new evidence or
circumstances that justify modifying the prior order. (In re
B.D. (2008) 159 Cal.App.4th 1218, 1228; In re Zachary G. (1999) 77 Cal.App.4th 799, 806-807.) The court may summarily deny the petition
without a hearing if it finds the “petition . . . fails to state a
change of circumstances or new evidence that may require a change of order or
termination of jurisdiction or, that the requested modification would promote
the best interest of the child.†(Cal.
Rules of Court, rule 5.570(d).) On
the other hand, if the petition states a prima facie case for relief, the court
shall conduct a hearing. (§ 388,
subd. (d).) Courts must construe a
section 388 petition liberally in favor of granting a hearing. (Cal. Rules of Court, rule 5.570.) “If the petition presents any evidence that a
hearing would promote the best interests of the child, the court must order the
hearing. [Citation.] The court may deny the application ex parte
only if the petition fails to state a change of circumstance or new evidence
that even might require a change of order or termination of jurisdiction. [Citation.]â€
(In re Angel B. (2002) 97
Cal.App.4th 454, 461.) We review a
dependency court’s ruling denying a section 388 petition under the
deferential abuse of discretion standard.
(In re A.A. (2012) 203
Cal.App.4th 597, 612; In re
Anthony W. (2001) 87 Cal.App.4th 246, 250.)
Here, we find no
abuse of discretion in the court’s summary denial of mother’s section 388
petition. Mother’s petition, filed more
than one year after her reunification services were terminated, alleged as
changed circumstances that mother had completed “a domestic violence
program, parenting program, individual counseling, 10 consecutive drug and
alcohol tests and . . . submitted to
assessment.†Mother alleged the change
would be in Gabriel’s best interest because, “I share a strong bond with
Gabriel and he resided with me for most of his life. I have fully complied with my case plan and
have learned how to be the best parent.
I can be for Gabriel. It is in
Gabriel’s best interest to live with his mother and to continue our strong family
bond.†The record is to the
contrary. First, contrary to mother’s
assertion, Gabriel had not lived with mother “for most of his life.†At the time of the petition, Gabriel was
seven years old and for more than four of those years he had not lived with
mother.
title="">
had not seen Gabriel since February 2012 and even before then had not
maintained regular visitation. The court
did not credit mother’s claim that she was prevented from visiting by DCFS and
Gloria. Moreover, Gabriel had
consistently stated that he wanted to live with Gloria and not with
mother. The court summarily denied the
petition observing, “I’m not hearing that there’s really anything to set the
388 on. I am glad that mother is working
on employment in terms of the counseling service. But with what? Two visits?
And the visits, I know you’re saying not that you don’t get visits, but
the visits weren’t regular before either.
And we never moved past monitored.â€
Under these circumstances, mother has not shown the court abused its
discretion in finding that mother had not established a prima facie case that
the modification would be in Gabriel’s best interest.
The
judgment is affirmed.
RUBIN,
ACTING P. J.
WE CONCUR:
FLIER, J.
GRIMES, J.
future undesignated statutory references are to the Welfare and Institutions
Code.
contends mother’s appeal should be dismissed, arguing that because issues
decided at a hearing setting a 366.26 permanent plan hearing (.26 hearing) are
reviewable only by extraordinary writ, mother cannot appeal from the orders
made on May 5, 2011, the date the court set the .26 hearing. We read mother’s appeal as being from the
orders made at the July 5, 2012 hearing at which mother’s parental rights were
terminated. Accordingly, we deny the
motion to dismiss.
