Opinion
H047111
10-29-2019
A.L., Petitioner, v. THE SUPERIOR COURT OF MONTEREY COUNTY, Respondent; MONTEREY COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. 17JD000202)
Petitioner A.L., the maternal grandmother and former legal guardian of 15-year-old S.F., petitions for extraordinary writ relief from a Monterey County juvenile court order terminating her probate guardianship of S.F. and reunification services with him and setting a permanency planning hearing under Welfare and Institutions Code section 366.26. For the reasons explained below, we reject petitioner's claims and deny her petition.
Unspecified statutory references are to the Welfare and Institutions Code.
I. FACTS AND PROCEDURAL BACKGROUND
Petitioner is S.F.'s maternal grandmother. Prior to the commencement of the dependency proceedings at issue here, in 2007 the probate court in Los Angeles County appointed petitioner as the legal guardian of both S.F., then two years old, and his five-year-old brother. For approximately 10 years, petitioner cared for S.F. and his older brother. They lived together in various areas of California including, most recently, Monterey County.
S.F.'s parents have not appeared in the proceedings related to the dependency in Monterey County or this writ.
S.F.'s older brother is now an adult and appears to be residing with S.F. at their paternal grandparents' home in Los Angeles County. Although a companion dependency action was instituted when S.F.'s older brother was a minor, that action is not at issue here. Nevertheless, petitioner discusses S.F.'s older brother frequently in her petition and attributes many of the difficulties she faced in caring for the brothers to his behavior.
A. Section 300 Petition and Jurisdictional Proceedings
In November 2017, the Monterey County Department of Social Services (Department) filed a petition under section 300, subdivisions (b) and (g), alleging that S.F., who was then 13 years old, came within the jurisdiction of the juvenile court. The petition alleged that, since 2004, the Department had received 18 referrals regarding the family, including "numerous referrals to Pathways to Safety" for petitioner. The petition noted the Department had provided petitioner "wraparound services, as well as Therapeutic Behavioral Services." On October 13, 2017, the Department received a report alleging general neglect by petitioner of S.F. and his older brother after she left them without supervision when she left the home because she was afraid of the older brother. On November 3, 2017, the Department received another referral alleging general neglect because petitioner "locked" the food for safety reasons. A few days later, on November 6, 2017, the Department received a referral based on petitioner's refusal to pick up S.F. and his older brother from the Salinas Police Department. Petitioner had reported the minors "missing and stated to the investigating social worker that even if law enforcement were to contact her, she would refuse to pick up the minors. [Petitioner] stated she wanted to terminate the legal guardianship." At a meeting with a Department social worker, petitioner stated she could not keep the "boys safe from themselves" and reported concerns that the older brother might be involved in a gang. Due to "grandmother's unwillingness to care for the boys any further," the Department concluded "court intervention, supervision and out-of-home placement are necessary to ensure the child's safety and well-being."
The allegations regarding subdivision (b) [failure to protect] related to petitioner, and the allegations related to subdivision (g) [no provision for support] related to S.F.'s mother and father, whose whereabouts were unknown.
While most of the referrals related to petitioner, at least one related to S.F.'s mother "testing positive at [S.F.]'s birth for marijuana."
On November 9, 2017, the juvenile court ordered the detention of S.F. and his older brother. In December 2017, the Department filed a jurisdiction/disposition report (signed by social worker Soila Ortiz and her supervisor Raquel Avila), which recommended terminating petitioner's guardianship and dismissing her as a party to the case. The report included a statement by petitioner that she " 'gave up' " S.F. and his brother to the Department " 'for their protection, safety, and health' " because she was " 'now 67 years old and permanently disabled' " and it had become " 'too dangerous for them and me.' " Petitioner expressed hope that "someone in the family" such as the boys' maternal aunt, would be able "to provide care for them in the future." In the report, the Department noted that S.F. described having difficulties sleeping and managing his anger when living with petitioner. S.F. and his brother did not want to visit with petitioner "at this time." The Department's report concluded that petitioner "is adamant that she is no longer able or willing to continue to care for" the brothers, which has left them "without the stability and appropriate parenting that they require," as they "deserve to be in a home that will provide stability, nurturing, and structure."
The social worker's December 2017 report attached documents from the 2007 probate proceeding, including a 2014 document titled "Informal Custody Agreement" between petitioner and maternal aunt. According to a declaration petitioner submitted in the juvenile court, petitioner in 2014 asked her daughter (the boys' maternal aunt) to take the boys "temporarily." They lived with their aunt for nine months, returning to petitioner in 2015.
In early January 2018, the juvenile court appointed counsel for petitioner. The juvenile court learned that petitioner was retaining private counsel, and it continued the jurisdictional hearing. At the next hearing, on January 16, 2018, private counsel appeared for petitioner, and the juvenile court again continued the jurisdictional hearing. On February 13, 2018, the juvenile court received into evidence the social worker's report and, after petitioner requested a contested hearing on jurisdiction, the juvenile court set further hearing dates.
Prior to the contested jurisdictional hearing, the Department filed a reply to petitioner's trial brief in which it stated that termination of petitioner's guardianship over the boys was "no longer at issue" because the termination had been initiated at petitioner's request and she "no longer wishes to have the guardianship terminated." The Department stated it would be offering petitioner reunification services "as required by law." However, the Department noted petitioner's current desire to keep the guardianship "does not alleviate the concerns of the department" given the prior referrals, including in October and November 2017 "wherein [petitioner] personally expressed an inability or want to care for these children."
The contested jurisdictional hearing began on February 23, 2018. The lead social worker, Soila Ortiz, testified. The next court appearance involving the jurisdictional hearing occurred on April 9, 2018, when the trial court received into evidence the social worker's report and heard testimony from S.F., his brother, and petitioner's pastor. The next day, on April 10, 2018, the juvenile court conducted an in-chambers discussion with counsel. The juvenile court's minute order for that day states "[r]esolution has been reached." The juvenile court ordered S.F. returned to petitioner's custody and all parties to comply with the case plan. The court also found that the allegations in the section 300 petition were true and it had jurisdiction over S.F. pursuant to section 300, subdivisions (b) and (g).
On April 30, 2018, the Department filed a case plan update noting that S.F. had returned to petitioner's custody on April 18. The case plan included a requirement for petitioner to participate in "a Family Mental Health Assessment conducted by Children's Behavioral Health Department" and stated that "[a]ll recommendations based on the assessment will be followed as indicated in the assessment." Approximately one month later, in late May 2018, at a hearing at which the Department and petitioner's counsel appeared, the court continued S.F. as a dependent of the juvenile court and set the matter for a six-month review hearing, calendared for October 9, 2018.
B. Section 387 Petition
On August 8, 2018, the Department filed a section 387 petition seeking to remove the boys from petitioner's residence and placed elsewhere. The section 387 petition alleged that, following S.F.'s return to petitioner's custody on April 18, a Child Family Team (CFT) meeting occurred on May 7 and was attended by petitioner, her pastor, the Department's social worker (Angela Gomez) and her supervisor (Jessica Singleton), a therapist from Kinship Center, a social worker and staff from Aspiranet Residential Services, and S.F. and his brother. Both boys arrived to the meeting heavily under the influence of marijuana. S.F. had refused to attend school for the last eight days and had engaged in concerning behaviors, such as punching holes in the doors of petitioner's apartment.
One week after the CFT meeting, on May 14, 2018, the social worker conducted a home visit during which S.F. expressed to the social worker (presumably Gomez, who signed the section 387 petition) that he needed psychiatric help. A few days after that visit, S.F. was suspended from school for the rest of the school year.
On May 24, 2018, the Department referred the family to various services, including "Door-to-Hope." On June 5, 2018, petitioner informed the Department that she was not going to pursue services with Door-to-Hope because she felt they were not prompt enough. Petitioner also refused county-based mental health care providers. A few days earlier, petitioner had taken S.F. to a psychiatrist at Stanford who indicated that S.F. would not need psychiatric hospitalization and referred petitioner to "local services." Another CFT meeting occurred on June 18, 2018, attended by petitioner and several other individuals, including Gomez and her supervisor, Singleton. The boys refused to attend. During this CFT meeting, petitioner indicated "that she wanted the Department to submit a 387 Petition to remove [S.F. and his older brother] from her home."
On July 16, 2018, petitioner "reported that she did not feel safe, was refusing to return to her home, and would be living with a friend." An unidentified individual made a referral to the Department because both boys were left without any adults in the home. On August 2, 2018, petitioner's counsel filed a restraining order against S.F.'s older brother. The following day, petitioner told the Department that she believed "both youths would be best served in separate residential treatment programs."
On August 9, 2018, the day after the Department filed the section 387 petition, the juvenile court ordered the boys removed from petitioner's care. The next day, S.F. and his older brother ran away from the Department's custody and were later found at their paternal grandparents' residence in Los Angeles County. The boys were later officially placed with their paternal grandparents, and S.F. has since lived with them.
On September 13, 2018, the Department filed a jurisdiction/disposition report with the juvenile court that recommended sustaining the section 387 petition and offering six months of reunification services to petitioner. The authoring social worker, Sylvia Chavarria, noted that it had been difficult to gather information from petitioner as she "stated she only wanted communication with the Department through her attorney." Chavarria's report noted that "[t]he community, law enforcement and the Department are concerned that the guardian's inability to safely parent [S.F. and his older brother] places herself and them at serious risk of abuse and neglect." Under a section titled "children's safety in home," the report noted that petitioner was "no longer able and willing to take care of the minors" and stated they have "been left without a caregiver who is able to protect them and provide for their basic needs and appropriate supervision."
The September 2018 report noted that petitioner had called law enforcement three times regarding S.F. and his brother after they returned to her care.
The September 2018 report further noted that S.F. and his brother felt the "need to cut off communication for the time being" with petitioner and did not want reunification or visitation. The report noted that, although S.F. and his older brother were not "currently open to telephone calls or visitation" with petitioner, "they will receive mental health services through Children's Behavioral Health in Los Angeles County and they may eventually be able to have contact with [petitioner] with the support of their therapists."
The September 2018 report attached a case plan, which forms the basis of the juvenile court's orders we review here. Under a section titled "Client Responsibilities," it stated petitioner "will participate in a Family Assessment and Alcohol and other Drugs Assessment through Children's Behavioral Health and follow the recommendations for treatment and/or other referrals for service. Actively participate in individual and family therapy should therapy be recommended."
On September 18, 2018, at a hearing at which petitioner appeared, the juvenile court found that the allegations in the section 387 petition were true, it had jurisdiction under section 387, and, by clear and convincing evidence, that S.F. should be removed from petitioner's care. It further found visitation by petitioner with S.F. would be detrimental to him. Among the dispositional orders, the juvenile court stated "'[t]he case plan submitted to the court is approved, and all parties shall comply with that plan." With respect to education orders, the juvenile court relieved petitioner "as the educational representative or surrogate parent" for S.F. and appointed his paternal grandmother in petitioner's place. In its visitation orders, the juvenile court ordered that petitioner "may not have visitation with [S.F.], until the Department determines that visitation would be in the best interests of the child or until further order of the court." (Italics omitted.) The juvenile court set the 18-month permanency review hearing for May 7, 2019. Petitioner did not appeal any of these orders.
C. Reports and Filings Prior to the 18-Month Permanency Review Hearing
Prior to the 18-month review hearing, the Department filed a status review report on April 26, 2019. The April 26 report, prepared by Gomez and signed by her supervisor, Singleton, recommended the juvenile court terminate petitioner's reunification services and legal guardianship over S.F. Because petitioner objects to many aspects of the April 26 report, we discuss it and the juvenile court's treatment of it in more detail below.
Unless otherwise indicated, all further dates occurred in 2019.
The juvenile court continued the 18-month permanency review hearing, originally calendared for May 7, several times at the request of petitioner and petitioner's counsel. The juvenile court continued the hearing one time at the joint request of the Department and petitioner. The 18-month permanency review hearing, discussed in more detail below, ultimately began on July 8. On May 22, the Department filed a motion to terminate petitioner's probate guardianship pursuant to section 728.
Through her counsel, petitioner filed a number of motions and requests with the juvenile court prior to the July 8 hearing. These filings generally objected to the wording and content of the April 26 report, Gomez's conduct in the dependency proceedings, and argued that the juvenile court had provided improper notice of the guardianship matter.
With respect to the April 26 report, petitioner's counsel objected to it on the basis that it "improperly demoniz[ed]" petitioner and requested that it be withdrawn, stricken, or rewritten "to eliminate the derogatory and debasing comments." Similarly, petitioner's counsel filed a "Motion in Limine to Exclude Testimony, Status Report and Removal of Social Worker Angela Gomez," arguing that the April 26 report was replete with "false and misleading information tainted by bias making the entire report unreliable." Petitioner's counsel concurrently filed a declaration in which he stated that he had attempted to resolve the issue of Gomez's removal informally by "asking the Department to do so on their own" and attached a letter he sent to Christine Larabl, a social worker supervisor. The letter explained the basis for the request to remove Gomez was because her report used terms like " 'quasi academia,' " which petitioner interpreted as being racially derogatory.
Petitioner's counsel also filed a separate motion in limine "to Exclude any Testimony Regarding the Guardian's 'Unpredictability, and Instinctive Behavior to Manipulate and Bully in Order to Maintain Absolute Control;' 'Lack of Boundaries, Abrasive Actions, and Lack of Internal Awareness.' "
Prior to the July 8 hearing, petitioner's counsel filed a motion pursuant to section 388 that the matter be "dismissed for lack of evidence" because the social worker's reports (i.e. the April 26 report and the June 14 addendum report, discussed further below) were biased and unreliable and it appeared Gomez was now unable to testify. Petitioner's section 388 motion stated that her counsel had learned Gomez had been put on "involuntary leave" by the County of Monterey based on a " 'go-fund-me' page posted" by Gomez, in which Gomez suggested she had been unfairly placed on involuntary and unpaid leave for " 'underperforming.' " Petitioner argued her due process rights would be violated if she were unable to cross-examine Gomez at the permanency review hearing because of the "bias issue."
Petitioner also filed a document titled "Objection: Improper Notice for Termination of Probate Guardianship" and a trial brief. Petitioner filed a 86-paragraph declaration in opposition to the Department's motion to terminate her guardianship, alleging bias and disparate treatment in the services she received for her "mixed-race grandson[s]." Petitioner's claim of bias centers on what she describes as disparate treatment by the County of her (she describes herself as "dark skinned"), older child (whom she describes as "dark skinned"), S.F. (whom she describes as "light skinned") and S.F.'s paternal relatives, whom she describes as "Caucasian." Essentially, petitioner claims the County permitted her to have contact with older brother but not S.F. because of differences in their skin colors.
Petitioner's filings in the juvenile court included a handwritten letter petitioner wrote to S.F. and his brother around April 2019. The letter states, "I want to apologize to you both for some things. I am so very sorry that I did not know how to be a better substitute parent to you guys. . . . I should have never spanked you . . . . [¶] I also am sorry that I had no one to help me with you both when [older brother] was stealing stuff and using weed. . . . [¶] So I called CPS for help because they are supposed to be child protectors. . . . [¶] I am so sorry because that is not what they did. They hid you both from me from November to April, charged me with false neglect, abused and neglected you both, wouldn't allow me to talk to you and explain what was going on, lied to you both and said I wanted to give you up to foster parents, all that was proven false in court. They are an evil agency that breaks up families, doesn't help them with family problems or issues and lies to children and their family members. [¶] . . . CPS caused me to owe $24,000 to my attorney unnecessarily because they had their own plans and agendas." Describing when the boys were returned to her in the spring of 2018, petitioner wrote "I am sorry I had to have surgery on my foot at this time, too. I was in extreme pain, fear, and anxiety. When my meds were taken, I had to leave to protect myself." The letter concluded, "CPS is about money-CPS/Monterey, the State of California, foster parents, therapists, psychiatrists-they all are making money and as long as you are in the foster care system-money is being made and is keeping you in it. I have never been about money. I never received foster care or kinship money to take care of you . . . Everyone else is or has gotten money . . . I worked 2 jobs, and used my financial aid to take care of you too because I love you and always will."
Petitioner also provided the juvenile court with a letter from petitioner's therapist, Marian Carapezza, dated April 2, addressed "To Whom It May Concern." The letter in full states, "This letter is to verify that I have been seeing [petitioner] for weekly individual psychotherapy since 8/26/[2016]. [¶] If you need any additional information, please contact me. I will provide it if I have [petitioner's] permission."
On June 14, the Department filed an addendum report. In it the Department stated it was continuing to recommend termination of reunification services. The June 14 addendum report noted that, in March 2019, the staff at S.F.'s middle school in Los Angeles County told Gomez that petitioner had contacted S.F. and the school's staff. Gomez learned from the school that petitioner had given S.F. a "letter." S.F. went "straight to the counselling [sic] office very upset" and gave the letter to the principal.
During a home visit in April, Gomez learned from S.F. and his older brother that a " 'guy' " had come to the door and thrown an envelope through the front door that contained "an 'apology letter' " from petitioner." During the home visit, S.F. told Gomez that after petitioner visited him at his school he left petitioner a voicemail "telling her that he did not want anything to do with her and to leave him alone." S.F. said he had "blocked" petitioner's phone number. In late May, Gomez spoke again to staff from S.F.'s school, who told her that petitioner had "confronted" S.F. near the parking lot prior to class starting in the morning. The staff member told Gomez that, as a result of the encounter, S.F. was "too emotionally agitated" to attend his first period class and a licensed therapist on staff had to "calm him down." The staff member also noted that this was not the first time petitioner had confronted S.F., as she had done so "three times."
Presumably, the document was the letter excerpted above.
Approximately one week after the Department filed the addendum report, petitioner's counsel moved to strike it and filed a motion to continue the hearing due to the inability to subpoena "critical witnesses," namely S.F. and S.F.'s paternal uncle. Petitioner's counsel noted he had contacted S.F.'s counsel to discuss service of subpoenas on S.F. and his uncle and asked again when he saw S.F.'s counsel in the courthouse, but that he had not heard back from them.
D. 18-Month Permanency Review Hearing
The juvenile court held the contested 18-month permanency review hearing on July 8 and July 10. Singleton, Gomez's supervisor, testified, as did petitioner and her pastor. S.F. did not attend the 18-month hearing but appeared through his court-appointed counsel.
Carrapeza, petitioner's therapist, did not appear or testify at the hearing.
Prior to the start of testimony, petitioner's counsel argued the juvenile court should first address petitioner's motion to dismiss and argued that petitioner's rights were violated because "[w]e don't have the social worker." Petitioner's counsel requested an "[Evidence Code section] 402 hearing" with Singleton "to explore the issues of what she knows and doesn't know, as she was not a co-author of any of the documents."
Before conducting the Evidence Code section 402 hearing, the juvenile court took up petitioner's "motion to strike" the reports filed on April 26 and June 14. The juvenile court struck, added, or modified certain language in the April 26 report. We discuss the trial court's orders related to the April 26 report in more detail below, as petitioner challenges the juvenile court's authority to make these changes.
Regarding S.F.'s absence at the hearing, petitioner's counsel argued that S.F. had been "properly" subpoenaed and requested a continuance so that S.F. could be present. The Department's counsel and S.F.'s counsel both opposed the continuance, and the trial court denied the request. The Department submitted on the reports and reserved Singleton for rebuttal.
1. Social Worker Supervisor's Testimony
In connection with the preliminary Evidence Code section 402 hearing, Singleton testified that she had signed the April 26 report on behalf of herself and Gomez, because Gomez was not in the office when it was submitted. Singleton stated she did not author the report. Singleton recalled she was involved "early on" in two family meetings.
Reviewing and relying upon J.H. v. Superior Court (2018) 20 Cal.App.5th 530 (J.H.), which we discuss further below, the juvenile court rejected petitioner's claim regarding the addendum report and denied petitioner's motion to strike it. The juvenile court also concluded that nothing further was "needed for a 402 hearing" and instructed petitioner to proceed with Singleton's testimony.
Petitioner's counsel called Singleton as a witness in her capacity as "the supervisor and author of the report." Singleton testified that she had consulted with Gomez about the facts of the case and noted that Gomez's suspension from work was not related to this case.
Singleton testified that petitioner had not cooperated with the Department by participating in services. Singleton stated that, to her knowledge, petitioner did not complete the family mental health assessment, even though the Department had made this referral for her "early on in the case." Singleton explained that the purpose of the assessment was to "assess any mental health needs that [petitioner] may have that may assist her in parenting" S.F. and his older brother. According to Singleton, "[t]he mental health assessment is very comprehensive. It entails a client meeting with a psychologist to do a thorough psycho-social history. From that history, the psychologist makes multiple recommendations. Those recommendations can include access to individual or family therapy, as well as parenting services, which can, then, be connected to after the assessment is completed." Without the mental health assessment or something comparable, it is difficult for the Department to assess what services a party might need. Singleton noted that an individual could seek an "outside provider" but, in those circumstances, the Department would need signed releases to obtain the information from that provider.
Regarding visitation, Singleton testified that she was aware of only one visit between S.F. and petitioner, although it is not clear from her testimony when this visit occurred. Following the section 387 petition, the juvenile court had not ordered visitation but had left to the "discretion of the Department" whether to offer visitation services to petitioner. Singleton noted that "conjoint family therapy" could have been offered if it had been clinically indicated.
The record suggests that this was a supervised visit that occurred after S.F.'s first removal and before he was returned to petitioner—i.e., before the juvenile court's orders related to the section 387 petition.
Singleton stated that she had had personal interaction with S.F. approximately one year earlier. Singleton's understanding was that S.F. was doing well in his current placement with his paternal grandparents and was feeling more secure. She believed that S.F. was offered visitation with petitioner, but he did not want to participate and had expressed not feeling "safe" in petitioner's care. Singleton observed that "[S.F.] has stayed consistent in that message for quite some time. And due to his feelings of unsafety, we would not recommend him returned to her care." Singleton noted that, since the last review hearing, petitioner had done nothing to alleviate the Department's concerns about S.F. being left unattended in her care. Singleton agreed that most her knowledge of S.F. and petitioner's actions came from what Gomez had told her. Singleton's overall assessment was that petitioner had not been cooperative with the Department, and the Department had not seen any changes or insight from petitioner since the prior review hearing.
2. Petitioner's Testimony
Petitioner testified that she had voluntarily surrendered S.F. and his older brother to the Department. After the boys had "run away," she called CPS and said " 'if they're found, I can't keep them safe. I can't keep them from running away.' "
Petitioner discussed the individual therapy she was engaged in with her therapist, Carapezza. Petitioner testified that she "went to therapy every week" to work on helping the boys "transition" back into her life "safely." Her efforts were focused on how "[to] transition[] [the older brother] into another place." Regarding S.F., petitioner stated that her therapist had told her to be patient with him and allow him to express himself and to work with S.F.'s therapist. Petitioner could not recall if her therapist had ever diagnosed petitioner with a mental disorder.
Petitioner did not participate in an assessment with Children's Behavioral Health. Petitioner testified that the Department had created the case plan that she was ordered to comply with but denied that she was involved in the plan's development or had "signed off on it." She recalled seeing the case plan at the September 2018 hearing. Petitioner stated she "wasn't able to comply with [the case] plan."
When questioned about why she did not seek a re-referral or contact Dr. Beck from Children's Behavioral Health (after he had closed the initial referral due to her lack of response), petitioner responded, "As I stated before, I am not opposed to having a family assessment, but I did not feel that the County of Monterey could - - could dictate the only source for me to have that assessment was through the Monterey County Behavioral Health." When asked why she did not go to Children's Behavior Health after the juvenile court ordered the case plan in September, petitioner responded, "There were no children for me to go and have a family assessment with." However, she later noted that she did not know whether all the family members had to be together for the assessment to go forward. Petitioner told the social worker that she "needed to see the children to do [her] plan." But petitioner admitted that she was "not really clear on the procedures of - - of family assessment" other than what I was told by Lucille Packard Stanford Hospital. Ultimately, petitioner "chose not to use Children's Behavioral Health . . . because that's my right."
Petitioner stated she had tried to seek services from Lucille Packard Stanford Hospital, but it could not help her because MediCal "would not authorize a payment." She listed several other agencies to which she had gone with S.F. in earlier periods of the dependency proceeding. Petitioner further stated she had done training on "trauma" regarding children with separation anxiety and who had undergone trauma.
Petitioner testified about services she had received from "Door to Hope" early on in the dependency proceeding, which included therapy sessions with her and S.F. When questioned what she learned from those services, petitioner responded, "I learned . . .to give [S.F.] his space; to actively listen to him; to provide him opportunities to come out of the house" and "how to interact with [S.F.]" and "to try to encourage . . . [his] independ[ence]." Petitioner further noted that she had been placed in Adult Protective Services, which helped her understand that S.F. "needed to be with [her] without his brother[]." When asked by the juvenile court about the services she could seek or reengage with if S.F. were to return to her custody, petitioner pointed mainly to "Stanford Lucille Packard Psychiatric Services for traumatized youth who are traumatized as children," as well as some other "supplemental agencies" she would be "reaching out to." She noted that Stanford also had individual counseling and she could "drive [S.F.] to Palo Alto," but was also willing to have S.F. "served locally."
Regarding her more recent contact with S.F., petitioner noted that she had sent a Christmas card. After the social worker suggested she write an apology, she wrote a six-page letter to S.F. in the spring. S.F.'s counsel asked petitioner whether she believed it was responsible to tell S.F. in the letter that the Department was " 'evil.' " Petitioner responded that she thought it was age-appropriate because S.F. and his older brother were "not five and six" and are "approaching adulthood." With respect to the statements in the letter about CPS, petitioner said they were based "on my understanding and knowledge of the foster care system, through my own studies as a sociologist, and how federal funding funnels to the state, and how state funding funnels to the county, for CPS and foster care placements. [¶] . . . [¶] And I stated that as a fact."
Petitioner noted that in the earlier stages of the dependency case (March or April 2018) she had contacted various social workers and employees of the Department, including Christine Larable and an assistant director of the Department named "Medina," to get visitation with S.F. Regarding an earlier supervised visit with S.F. that had occurred earlier on in the dependency proceeding, petitioner noted that he was angry and told her " 'Why did you put me in CPS custody' " and was "flipping out." Petitioner stated she had had numerous conversations with S.F. She also acknowledged that she had spoken with him in a "school walkway." At that encounter, "I told him that what CPS told him was not true."
Petitioner's pastor also testified on behalf of petitioner. He testified that he had observed petitioner with S.F. and his brother at certain times. Petitioner's pastor stated he believed S.F. would be safe if he were returned to petitioner. The pastor did not recall providing petitioner with any specific advice regarding S.F., and he acknowledged he was not a trained counselor.
Following the close of testimony, the juvenile court stated it would submit an oral statement of its decision on July 12.
Petitioner's counsel requested a written statement of decision. The juvenile court determined a written statement was not required in dependency matters but stated that it would provide an "oral statement of decision." Petitioner does not challenge that ruling.
E. Juvenile Court's Orders
On July 12, the juvenile court began by noting that it "has considered all of the documentary and testimonial evidence that has been presented, along with the request for a judicial notice, that were granted, and has considered the arguments of counsel, in full, both on the record and through the filings in this matter."
The juvenile court described its "starting point" for its rulings as the "[t]he failure of a legal guardian to participate regularly and make substantial progress in court-ordered programs is prima facie evidence that return would be detrimental to the minor." The juvenile court stated, "this is the second time the minor has been removed from the legal guardian. The initial removal was made on the findings that the legal guardian had failed to protect the minor, properly supervise him, and, as a result, that the minor was at risk for suffering serious physical harm. [¶] The child was returned to the care of the legal guardian in late April of 2018, and was, again, removed from the legal guardian in early August. [¶] The supervising social worker testified that there had been multiple reports of violence in the legal guardian's home, and that the legal guardian had advised the Department that she did not feel safe in the home with the minor and his sibling. The Department was also made aware that the minor did not feel safe in the home. The legal guardian had left the children in the home for her own safety, arranging for the youth to be looked in on by a neighbor and fed by the pastor of her church. [¶] The individual therapeutic services engaged in by the legal guardian were focused on transition, dispute resolution between the siblings, and the legal guardian's need to be patient. The circumstances that brought the child before the Court involved the heavy use of marijuana, property damage, the child's erratic behavior, and the legal guardian's fear of returning to her home."
The juvenile court stated that "[t]he evidence does not support a finding that the legal guardian, over the course of the past 18 months, has gained the insight needed and has been able to demonstrate the changes required, for the Court to find that the child may safely be returned to her care. [¶] The minor's wishes are properly considered by the Court as part of its overall determination. While the legal guardian testified that the minor contacted her by cell phone, the minor conveyed to the Department his feelings and opinions, specifically, that he continues to not feel safe in the care of the legal guardian. He wishes to be adopted by the family members with whom he is placed, and he wishes for permanency and continued stability in their care."
In conclusion, the juvenile court found, "by a preponderance of the evidence, that return of the minor to the legal guardian would create a substantial risk of detriment to his safety, protection, and well-being."
Turning to the issue of reasonable services, the juvenile court found "by clear and convincing evidence, that reasonable services were offered to the legal guardian by the Department." The juvenile court noted that "the supervising social worker testified that completion of the mental health assessment, also known as a family assessment, offered through Monterey County Behavioral Health, was the primary component of the legal guardian's case plan. She testified that the assessments performed are comprehensive in nature, and are generally part of the case plan for families in dependency court proceedings. Once the assessment has been completed, Dr. Beck, of Monterey County Behavioral Health, then, makes very specific recommendations as to the exact services that would support that particular client in reunification efforts. And those services are, then, offered to the party by the Department. [¶] The witness testified that the recommended services might have included individual therapy, and of clinically indicated therapeutic visitation, and against [sic] clinically indicated conjoint family therapy."
"[T]he supervising social worker testified that Dr. Beck attempted contacts with the legal guardian, who never returned the calls or scheduled an appointment for the assessment, or otherwise followed up. The legal guardian testified that she lacked an understanding of the assessment process and thought the child needed to be placed in Monterey County for the assessment process to begin. [¶] No testimony was offered as to any efforts to return the calls from Behavioral Health, or to seek answers to any questions she may have had concerning the process, despite having contact information for Dr. Beck and the family reunification social worker." The juvenile court further highlighted that "[a]lthough evidence was presented that the legal guardian had contacted Deputy Director Lori Medina and her program director, Christine Larable. No testimony was offered concerning her efforts to contact those individuals, to clarify any misunderstanding concerning the assessment, which was the primary component of her case plan. [¶] The legal guardian testified that she was not opposed to participating in a family assessment, but did not feel that Monterey County could dictate that it must be completed through Behavioral Health. She testified that she wanted to choose her own providers, because using the Department's providers violated her rights. [¶] The legal guardian testified that she sought services outside of the county, but kept being sent back to Monterey County Behavioral Health by the providers she had sought out. [¶] The legal guardian testified that when she asked for referrals from the Department, outside of the providers generally utilized by the Department, that specific referrals were made to the Village Project, Door to Hope, and Partners for Permanency." Regarding the legal guardian's desire for "respite services," the juvenile court noted that "[t]hese services were not the primary component of the legal guardian's case plan, and the Court is unable to find, on this basis, that the services offered were unreasonable."
"Respite care," as defined in regulations of which the juvenile court took judicial notice, "means the provision of prearranged child care when a parent(s)/guardian(s) or foster parent(s) is absent or incapacitated, and a determination has been made that temporary in-home or out-of-home care is in the child's best interest," and "are offered as part of a case plan to allow a temporary respite of parental duties, so that a parent(s)/guardian(s) or foster parent(s) is able to fulfill other responsibilities necessary to improve or maintain the parenting function."
In addition, the juvenile court found there was no substantial probability that S.F. would be returned within 24 months of his initial removal from petitioner's custody. The juvenile court noted that "[t]he legal guardian has participated in individual counseling, but neither the Department nor the Court has had the ability to assess whether the counseling complied with the case plan, or whether the focus was on enabling the legal guardian to gain the insight and make the changes needed for the child to be safely returned to her care." The juvenile court observed that, although there was one "sole visit" with S.F., it was not sufficient evidence to "properly assess safety, or to observe or develop evidence concerning needed changes in the legal guardian's home." "[W]hile the Court does appreciate that efforts were made, what the Court has to decide today, at the 18-month mark, is whether the detriment exists, at this time, and be able to look into the future and determine, if there could be return, could that return be safe by utilizing these additional services. And that testimony, unfortunately, and that evidence was lacking." The juvenile court therefore terminated family reunification services. In addition, the juvenile court terminated petitioner's guardianship, ruling that petitioner "is now removed as guardian of [S.F.]," and the "letters of guardianship previously issued are now revoked." The juvenile court ordered a selection and implementation hearing under section 366.26 and calendared it for November 5.
At the July 12 hearing, the juvenile court also ruled there were no grounds for further visitation and denied petitioner's motion to remove the social worker pursuant to section 16513.5.
F. Petition for Extraordinary Writ
Petitioner filed a timely notice of intent to file a petition for extraordinary writ to review the juvenile court's July 12 order terminating services. (Cal. Rules of Court, rule 8.450(e).) Thereafter, petitioner filed her petition for extraordinary writ with this court on September 3. Real party in interest, the Monterey County Department of Social Services, filed an opposition on September 18, arguing inter alia that petitioner's petition did not comply with the rules because it included minimal citations to the record. This court thereafter granted petitioner's motion to amend her petition. On October 3, petitioner filed her amended petition. The Department filed an opposition to the amended petition on October 10.
Unspecified rule references are to the California Rules of Court.
The Department requests that petitioner's "brief," be "stricken" which we construe as a request that we summarily deny the petition. The Department argues that the petition "contains minimal citations to the record" and recites "personal opinions rather than factual evidence." A petition must substantively address specific issues based on the record (§ 366.26, subd. (l)), and the memorandum "must provide a summary of the significant facts, limited to matters in the record." (Rule 8.452(b)(1).) While a writ petition "must be liberally construed," (rule 8.452(a)(1)), a reviewing court may summarily deny a procedurally defective petition. (See Anthony D. v. Superior Court (1998) 63 Cal.App.4th 149, 157.) Here, although lengthy portions of the petition lack record citations and supporting authority, petitioner has raised specific issues and has included sufficient record and legal citations to facilitate our review of the juvenile court's orders. (Rule 8.450(a).)
We therefore decline to summarily deny the petition. Moreover, we review all of the court orders made by the juvenile court on July 12, as "[a]ll court orders, regardless of their nature, made at a hearing in which a section 366.26 permanency planning hearing is set must be challenged by a petition for extraordinary writ." (In re Merrick V. (2004) 122 Cal.App.4th 235, 247 (Merrick V.).)
II. DISCUSSION
Petitioner raises six claims in her petition. We first address her arguments relating to the termination of reunification services and the termination of her guardianship at the July 12 hearing, and then turn to her due process arguments relating to the July hearings as well as the other alleged errors.
All references to "petition" are to the amended petition. First, petitioner asserts that the juvenile court erred in its treatment of the April 26 report, arguing that the court's "interlineation and redrafting" of language in the report "violated the separation of powers doctrine." Second, petitioner asserts the juvenile court improperly terminated her guardianship. Third, petitioner claims her federal and state due process rights were violated both because she was unable to cross-examine Gomez (the author of the April 26 report) and because the case plan's requirement that she use county services violated her "rights to choose" her "own health care providers." Fourth, she argues that the juvenile court failed to apply rule 5.250 which addresses a child's wishes to testify. Fifth, she asserts insufficient evidence supports the juvenile court's finding that she failed to make substantive progress. Finally, she argues no evidence supports the juvenile court's finding that she received reasonable reunification services.
A. Principles of Dependency Law
"The overarching goal of dependency proceedings is to safeguard the welfare of California's children." (In re Nolan W. (2009) 45 Cal.4th 1217, 1228 (Nolan W.).) "While reunification is the preferred outcome when it serves the interests of both parent and child, no interest is well served by compelling inadequate parents to shoulder responsibilities they are unwilling to accept or unable to discharge." (Id. at p. 1234.)
At the 18-month permanency review hearing, the court must return the child to his or her parent or legal guardian's physical custody "unless [it] finds, by a preponderance of the evidence, that the return of the child to his or her parent . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§ 366.22, subd. (a)(1).) A parent's failure to progress in treatment constitutes prima facie evidence of detriment. (Nolan W., supra, 45 Cal.4th at p. 1235 [citing § 366.22, subd. (a)].) In contrast to prior review periods, at the 18-month permanency review hearing, the parent already has received services beyond what the juvenile law ordinarily contemplates, and, barring exceptional circumstances, the time for reunification has ended and the child's interest in stability is paramount. (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 596.)
B. Termination of Reunification Services
Petitioner contends the juvenile court erred in terminating her reunification services because (1) there was insufficient evidence to support the court's finding that she received reasonable services, and (2) she demonstrated that she made substantial progress in services. We are not persuaded.
1. Reasonable Services
Petitioner argues the juvenile court lacked discretion to set a permanency planning hearing because she had not received reasonable reunification services. As S.F.'s legal guardian, petitioner was entitled to receive reunification services. (Merrick V., supra, 122 Cal.App.4th at pp. 249-250.) At the 18-month permanency review hearing, a court "shall determine whether reasonable services have been offered or provided to the parent or legal guardian." (§ 366.22, subd. (a)(3).)
" 'The adequacy of the reunification plan and of the department's efforts to provide suitable services is judged according to the circumstances of the particular case . . . "[T]he record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult." ' " (In re K.C. (2012) 212 Cal.App.4th 323, 329-330.) We review for substantial evidence a juvenile court's factual finding that the Department provided reasonable services. (T.J. v. Superior Court (2018) 21 Cal.App.5th 1229, 1238.) "Substantial evidence is that which is reasonable, credible and of solid value." (Ibid.)
Here, there is ample evidence that the Department provided reasonable services to petitioner over the relevant review period—that is, from the section 387 hearing in September 2018 through July 2019. The September 2018 case plan, with which the juvenile court ordered petitioner to comply, required petitioner to "participate in a Family Assessment and Alcohol and other Drugs Assessment through Children's Behavioral Health and follow the recommendations for treatment and/or other referrals for service." It is undisputed that the Department provided petitioner a referral to Children's Behavioral Health. and she did not participate in any family assessment. Prior to the issuance of the case plan in September, Children's Behavioral Health had closed the referral due to inaction by petitioner, despite multiple attempts by Dr. Beck to contact her. Petitioner admits that she never sought a re-referral. Petitioner's testimony makes clear that she refused to participate in the family evaluation in part because S.F. was living in Los Angeles. However, petitioner cites no authority that, because she refused to participate in services, the Department therefore failed to provide reasonable services to her. As a result of petitioner's refusal to engage with Children's Behavioral Health, the scope of petitioner's mental health issues and their possible impact on S.F. remained unexplored, and the Department was unable to refer petitioner to other services that might have assisted her.
Contrary to petitioner's assertion, the Department did not seek to "bypass" reunification services for petitioner on any ground, and our review of the record reveals no attempt by the Department to invoke any of the bypass grounds outlined in section 361.5.
The crux of petitioner's argument is that the requirement she obtain an assessment using county services infringed on her "rights to free choice of medical care under State and Federal consumer law." We disagree. Even assuming any infringement of her medical "liberty" occurred, petitioner was not thereby excused from complying with the case plan's requirements in light of the countervailing interest in protecting S.F., which is the focus of the dependency proceeding. As noted by the California Supreme Court in Nolan W., "[t]o the extent reunification orders intrude upon a parent's liberty, the Legislature has determined these intrusions are justified by the need to protect children and enable their safe return to competent parental care whenever possible." (Nolan W., supra, 45 Cal.4th at p. 1233.)
Reunification services are voluntary, and "[i]t is not the court's role to force a parent to participate in services." (Nolan W., supra, 45 Cal.4th at p. 1233.) "[T]here is no 'requirement that a social worker take the parent by the hand and escort him or her to and through classes or counseling sessions.' " (Ibid. [quoting In re Michael S. (1987) 188 Cal.App.3d 1448, 1463, fn. 5].) Moreover, petitioner's invocation of her interest as a parent is also unavailing. As the California Supreme Court has long held, "[t]he interests of the parent and the child . . . must be balanced." (In re Marilyn H. (1993) 5 Cal.4th 295, 306.) "A parent's interest in the companionship, care, custody and management of his children is a compelling one, ranked among the most basic of civil rights. [Citation.] Likewise, natural children have a fundamental independent interest in belonging to a family unit [citation], and they have compelling rights to be protected from abuse and neglect and to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child." (Ibid.)
Petitioner also appears to argue that the lack of visitation imposed by the Department was not reasonably suited to promote reunification. Visitation is an "essential component" of any reunification plan. (See In re Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1426.) However, the juvenile court prohibited visitation in September 2018 (a ruling which petitioner did not challenge) based on a finding of detriment and ordered that she complete a family assessment. Petitioner did not comply with the case plan or cooperate with the Department, and there was evidence from the two prior removals that her behavior jeopardized S.F.'s safety and emotional well-being. During the last review period, the Department encouraged petitioner to write a letter to him, which she did. The juvenile court had before it evidence that, after S.F. received a letter from petitioner, he got upset, went to the school's counseling office, and gave the letter to the principal. When petitioner contacted S.F. at his school, in violation of the juvenile court's order that petitioner not have visitation with him, S.F. was emotionally distraught. Under these circumstances, we are not persuaded that the visitation services the Department provided petitioner were unreasonable. For these reasons, we conclude substantial evidence supports the juvenile court's finding that the Department provided petitioner reasonable services.
2. Petitioner's Progress in Services
Petitioner also challenges the juvenile court's finding that she did not participate regularly in court-ordered reunification services and failed to make substantive progress. At an 18-month permanency review hearing, a "court shall order the return of the child to the physical custody of his or her parent . . . unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment." " 'In making its determination, the court shall review and consider the social worker's report and recommendations. . . .; [and] shall consider the efforts or progress, or both, demonstrated by the parent . . . and the extent to which he or she availed himself or herself of services provided.' (§ 366.22, subd. (a)(1).)" (N.M. v. Superior Court (2016) 5 Cal.App.5th 796, 805.)
We conclude substantial evidence supports the juvenile court's finding that petitioner did not make substantial progress in resolving the problems that led to S.F's two removals; nor did she demonstrate the capacity to complete the objectives of the case plan. (See J.H., supra, 20 Cal.App.5th at p. 535.) As noted above, based on her own distrust of Children's Behavior Health, petitioner admitted she did not participate in a family assessment, and the record reflects that petitioner demonstrated few behavioral changes in the review period from September 2018 through July 2019.
There is no dispute that petitioner did not comply with the critical component of her case plan during the period immediately leading up to the 18-month permanency review hearing. For example, petitioner did not provide either the Department or the juvenile court with a diagnosis from a mental health professional or articulate the skills, techniques, or coping mechanisms she would employ in order to avoid leaving S.F. without appropriate and consistent supervision. Petitioner apparently did not give her therapist permission to provide information to the Department or to the juvenile court about petitioner's progress in therapy, and therefore the juvenile court had before it only petitioner's vague statements about what she had learned in therapy. Having reviewed the record before the juvenile court, we conclude substantial evidence supports its conclusion that petitioner failed to make substantive progress in the goals of the case plan.
For these reasons, we conclude the juvenile court did not err in terminating petitioner's reunification services.
C. Termination of Petitioner's Guardianship
We next turn to the juvenile court's order terminating petitioner's probate guardianship. We understand petitioner to argue that the juvenile court had no "jurisdiction" to terminate her guardianship, because a "motion and notice to the Los Angles [sic] Probate Court" had not occurred. We disagree with petitioner's contention that the juvenile court lacked jurisdiction.
"The procedure for terminating a probate guardianship in a dependency proceeding is set forth in section 728 and rule 5.620(e)." (In re Z.F. (2016) 248 Cal.App.4th 68, 73 (Z.F.).) "Section 728 states, in pertinent part: '(a) The juvenile court may terminate or modify a guardianship of the person of a minor previously established under the Probate Code, . . . if the minor is the subject of a petition filed under Section 300, 601, or 602. If the probation officer supervising the minor provides information to the court regarding the minor's present circumstances and makes a recommendation to the court regarding a motion to terminate or modify a guardianship established in any county under the Probate Code . . . of the person of a minor who is before the juvenile court under a petition filed under Section 300, 601, or 602, the court shall order the appropriate county department, or the district attorney or county counsel, to file the recommended motion. . . . The hearing on the motion may be held simultaneously with any regularly scheduled hearing held in proceedings to declare the minor a dependent child or ward of the court, or at any subsequent hearing concerning the dependent child or ward.' (§ 728, subd. (a).)" (In re Xavier R. (2011) 201 Cal.App.4th 1398, 1412 (Xavier R.).)
Rule 5.620(e) provides that "[a]t any time after the filing of a petition under section 300 and until the petition is dismissed or dependency is terminated, the court may terminate or modify a guardianship of the person previously established by the juvenile court or the probate court. If the social worker recommends to the court, by filing Juvenile Dependency Petition (Version One) (form JV-100) and Request to Change Court Order (form JV-180), that an existing guardianship be modified or terminated, the court must order the appropriate county agency to file the recommended motion. (Italics omitted.) [¶] (1) The hearing on the motion may be held simultaneously with any regularly scheduled hearing regarding the child. Notice requirements under Probate Code section 1511 apply. [¶] (2) If the court terminates or modifies a previously established probate guardianship, the court must provide notice of the order to the probate court that made the original appointment. The clerk of the probate court must file the notice in the probate file and send a copy of the notice to all parties of record identified in that file."
"The proper vehicle for terminating a probate guardianship in juvenile court is through a motion pursuant to section 728." (Xavier R., supra, 201 Cal.App.4th at p. 1415.) "If the juvenile court decides to terminate or modify a guardianship previously established under the Probate Code pursuant to subdivision (a), the juvenile court shall provide notice of that decision to the court in which the guardianship was originally established. The clerk of the superior court, upon receipt of the notice, shall file the notice with other documents and records of the pending proceeding and deliver by first-class mail or by electronic service pursuant to Section 1215 of the Probate Code a copy of the notice to all parties of record in the superior court." (§ 728, subd. (b).)
The juvenile court made its ruling in response to the Department's section 728 motion and its recommendation to terminate petitioner's guardianship. The Department's motion noted that, if the court ordered the guardianship terminated, the juvenile court was to provide notice of its decision to the court in which the legal guardianship was originally established, consistent with the mandate of section 728, subdivision (b). While petitioner argues a "motion" was required, section 728 only requires "notice" of the decision terminating the guardianship to the probate court in Los Angeles. (§ 728, subd. (b).) Petitioner does not assert that the juvenile court failed to provide notice. As a reviewing court, " 'in the absence of any contrary evidence, we are entitled to presume that the trial court . . . properly followed established law.' " (Ross v. Superior Court (1977) 19 Cal.3d 899, 913.) The record establishes the juvenile court had jurisdiction to terminate petitioner's guardianship, and nothing in the record suggests the juvenile court failed to follow the "appropriate procedure." (Merrick V., supra, 122 Cal.App.4th at p. 250.)
Beyond advancing this jurisdictional argument, petitioner does not meaningfully challenge the juvenile court's decision to terminate her guardianship. Petitioner appears to contend that the Department did not meet its " 'high standard of proof,' " and the juvenile court improperly faulted petitioner for the "out of control behavior" of S.F.'s older brother when she had simply been "trying to protect" S.F. Petitioner does not assert it would be in S.F.'s best interests to continue her guardianship.
"Unlike the procedure for terminating a dependency guardianship, under Probate Code section 1601, it is the best interests of the child only that govern whether the trial court should terminate a probate guardianship." (Z.F., supra, 248 Cal.App.4th at p. 73, italics omitted; see also Xavier R., supra, 201 Cal.App.4th at p. 1416 ["The sole criterion for termination of a probate guardianship is whether termination is in the minor's best interests."].) In the context of terminating a probate guardianship, "the best interests of the minor finding need only be made by a preponderance of the evidence." (Z.F., at p. 74.) We review an order terminating a probation guardianship under the substantial evidence standard. (Merrick V., supra, 122 Cal.App.4th at p. 254.)
We conclude ample evidence supports the juvenile court's order terminating petitioner's guardianship. (See Xavier R., supra, 201 Cal.App.4th at pp. 1416-1417.) While in her care, S.F. was not properly supervised and was twice removed, and petitioner expressed conflicting desires during the dependency proceeding about whether she wanted S.F. to remain with her. At the July hearing, petitioner was unable to identify concrete services she would employ to care for S.F., other than that she primarily would seek psychiatric help from Stanford—a provider which she had already attempted to use but was unable to do so because of restrictions associated with her health insurance.
As S.F.'s counsel noted at the July hearing, S.F. needed to "move forward" with permanence and stability, which he appeared to find following his August 2018 placement with his paternal grandparents in Los Angeles County. The social worker's reports observed his placement there was "very stable"; he was making "significant improvement" in his grades at school and actively participating in therapy. We reject petitioner's challenge to the juvenile court's order terminating petitioner's probate guardianship over S.F.
Following the filing of her original writ petition, petitioner filed a notice of appeal on September 11 (In re S.F., H047291) that states she is challenging orders from July 12, 2019 described as "[g]uardianship terminated, 366.26 hearing set." This appeal has not yet been fully briefed and remains pending.
D. Alleged Process Errors
We address petitioner's three remaining procedural challenges—namely the juvenile court's decisions to modify the social worker's April 26 report, allow Gomez's supervisor to testify in lieu of Gomez (the author of the April 26 report who had since left the Department), and not require S.F. to testify at the hearing.
1. April 26 Report
Petitioner argues the juvenile court exceeded its powers by modifying the April 26 report. At the July 8 hearing and prior to hearing testimony, the juvenile court addressed petitioner's "motion to strike" the April 26 report. The juvenile court reviewed that report and the June addendum and "sua sponte" made modifications to them. For example, the juvenile court struck out language and commentary by the social worker that related to petitioner's parenting of her own children (rather than her grandson, S.F.) and added language to clarify that a prior report that petitioner had restricted access to food was " 'deemed inconclusive.' " The Department did not object to any of these changes.
Although her counsel also raised objections to the June 14 addendum report, petitioner does not in this court challenge any rulings made by the juvenile court related to the addendum report.
At the July 12 hearing, when it provided its oral statement of decision, the juvenile court stated that it "did wish to clarify that the legal guardian had requested that the 18-month report be voluntarily withdrawn by the Department, or that the Court order that it be stricken and rewritten. Proposed modifications to the report to conform to the evidence were made. Those were adopted by the Department. The Court had given both sides an opportunity to be heard, and the Court now finds that the report has been amended by the Department, orally, on the record." The juvenile court received the April 26 report "[a]s modified" into evidence.
In support of her argument that the juvenile court "exceeded" its powers, petitioner relies (as she did in the juvenile court) on In re Ashley M. (2003) 114 Cal.App.4th 1, 5-7, 9-10. That case, however, does not support petitioner's challenge to the juvenile court's modification of the language of the report. Rather, Ashley M. addressed the circumstance of a juvenile court "compelling the participation of a particular social worker." (Id. at p. 10.) The court in Ashley M. held that "[a]s a matter of public policy and under the doctrine of separation of powers, designation of the social worker to perform the tasks of the social services agency must be left to the discretion and expertise of the [agency] director." (Ibid.) In dicta, the court noted that "[u]pon finding that [the agency's] reports were incomplete or inaccurate, the court could have directed the agency to submit additional or more detailed reports, could have directed the social workers who prepared the reports to appear in court for questioning, could have appointed an outside expert to review the parent-child relationship, and could have fashioned other appropriate remedies directed to the agency as a whole. The court is also free, of course, to disregard the recommendations of the social services agency." (Id. at pp. 9-10, fn. omitted.) The court in Ashley M. did not determine the authority of the juvenile court over the wording of the reports that form the basis of its own orders.
We note that the majority of the modifications made by the juvenile court to the April 26 report were to strike out language that was either irrelevant or arguably disparaging of petitioner. The juvenile court took these actions in response to petitioner's own motion to strike the report and in response to petitioner's specific objections to its language. In addition, the modifications were made to conform to other facts in the record, for instance to reflect that petitioner had engaged in individual therapy. The Department did not object to any of the juvenile court's changes to the reports, and petitioner does not address the court's finding that the report "has been amended by the Department, orally, on the record."
Moreover, the juvenile court could not simply disregard the reports the Department submitted. At the 18-month review hearing, the juvenile court "shall review and consider the social worker's report and recommendations." (§ 366.22, subd. (a)(1); see also rule 5.708(b)(3).) "The reports are admissible regardless of whether the authors are available for cross-examination. (§ 358, subd. (b)(1)." (J.H., supra, 20 Cal.App.5th at p. 536.) "One specific area of dependency jurisprudence where the rules of evidence are relaxed is with respect to the reports and social studies prepared by the caseworker assigned to the family. The reports and studies contain not only the observations and recommendations of the caseworker, but also hearsay statements from family members and other witnesses. Despite their hearsay content, such reports are admissible to assist the court in its determinations." (In re Lesly G. (2008) 162 Cal.App.4th 904, 914.)
We have reviewed the modifications to the April 26 report made by the juvenile court. They appear to inure to petitioner's benefit, either by deleting language used by the social worker that seems unduly critical of petitioner or by removing or modifying statements that lacked factual support. Petitioner cites no authority for the proposition that the juvenile court exceeded its authority in so doing. We reject petitioner's claim that the juvenile court infringed her constitutional rights in its treatment of the April 26 report.
2. Social Worker Supervisor's Testimony
Petitioner also asserts her due process rights were violated because she was unable at the July permanency review hearing to cross-examine the social worker Gomez, the author of the April 26 report, and was instead limited to cross-examining Gomez's supervisor, Singleton. Petitioner asserts she was thereby deprived of the opportunity to be heard on her argument that she was the victim of racial bias. Petitioner's bias claim centers on the allegedly disparate treatment she received from the Department in how it provided services. She claims that she received more visitation with S.F.'s older brother (who she alleges is "brown-skinned") compared to S.F. (who she alleges is "white-skinned").
"A parent in a dependency proceeding has a due process right to confront and cross-examine witnesses. [Citation.] But due process does not require 'full-fledged cross-examination.' [Citation.] . . . Due process is a flexible concept that weighs 'any possible hardship to the parent [against] the state's legitimate interest in providing an expedited proceeding to resolve the child's status without further delay.' " (J.H., supra, 20 Cal.App.5th at p. 536.) " 'In juvenile dependency litigation, due process focuses on the right to notice and the right to be heard.' " (Id. at pp. 536-537.) We review for abuse of discretion the juvenile court's decision to permit Singleton to testify in lieu of Gomez. (Id. at p. 536.)
Petitioner was represented by counsel both before and at the 18-month permanency review hearing. Petitioner had ample opportunity to, and did, challenge the Department's reports and raise her claims of bias. The juvenile court had before it the April 26 report and the opportunity to review the language from which petitioner argued bias. In multiple filings and at the July hearings, petitioner's counsel vigorously challenged the reports and contended that Gomez was biased against petitioner. The juvenile court explicitly characterized petitioner's contention that the boys had different skin colors as "argument." At the 18-month permanency review hearing, the juvenile court stated, "I don't know anything about the children's skin tone. . . . The children have been in court. I've never observed that."
In terms of the opportunity to cross-examine Gomez, petitioner's counsel was able to cross-examine her supervisor, Singleton, and questioned Singleton about Gomez's alleged bias. Singleton stated that she was not concerned with bias in Gomez's reports and testified that Gomez's departure was not related to Gomez's handling of this case. Singleton had supervised Gomez's work and been involved in two CFT meetings in the dependency proceeding. Moreover, Gomez and Singleton were not the only social workers involved in the dependency, and prior social workers had voiced concerns about petitioner similar to those raised by Gomez—namely that petitioner had not provided an appropriate and stable structure for S.F., including leaving him without an adult on multiple occasions when she moved out of the family residence.
In conclusion, we are not persuaded that the juvenile court abused its discretion in allowing Singleton to testify about the Department's actions in the dependency proceedings.
3. S.F.'s Testimony
Petitioner also challenges the juvenile court's failure to require that S.F. testify at the 18-month permanency review hearing. In particular, petitioner cites to rule 5.250 and claims that the juvenile court erred by "preclud[ing] the calling" of S.F. "as a witness." However, that rule on its face applies to family law matters, not dependency cases. (Rule 5.250(a).)
Rule 5.250 (a) provides, "[t]his rule is intended to implement Family Code section 3042. Children's participation in family law matters must be considered on a case-by-case basis. No statutory mandate, rule, or practice requires children to participate in court or prohibits them from doing so. When a child wishes to participate, the court should find a balance between protecting the child, the statutory duty to consider the wishes of and input from the child, and the probative value of the child's input while ensuring all parties' due process rights to challenge evidence relied upon by the court in making custody decisions."
In addition, while petitioner claims S.F. "was properly subpoenaed to testify," the record does not support that assertion. The record citations provided by petitioner relate to subpoenas allegedly served on the Department and Gomez for documents and not a subpoena for S.F.'s appearance. Petitioner does not discuss or address the juvenile court's finding, supported by the record, that S.F. was not served with a subpoena for the hearing dates in July.
In particular, the juvenile court reviewed the proofs of service of the subpoenas submitted by petitioner's counsel and stated "It looks like, as to [S.F.], there was service on [S.F.], May 9th, for the hearing date of May 10th. So that does not need to be acted on by the Court. [¶] There's a proof of service, with respect to [S.F.'s] appearance, that was served on someone . . . on June 21st, for the June 25 hearing. Again, that hearing did not go forward." Petitioner does not address or challenge these findings.
The record is clear that S.F. did not wish to participate in the July proceedings, given that neither he nor his counsel voluntarily accepted service of prior subpoenas. There is ample evidence, including from the social worker's reports, that S.F. did not wish to visit or be reunified with petitioner. S.F.'s counsel was present at the hearings and did not express any wish on S.F.'s part to reunify with petitioner or to testify at the July hearings. S.F.'s counsel opposed petitioner's request for a continuance at the July 8 hearing, stating that petitioner had the opportunity to timely serve S.F. and Gomez, and that "[a]fter 18 months of services and multiple continuances, it would be in the minor's best interests to resolve the hearing today, so that he can move forward." We reject petitioner's contention that the juvenile court erred in its decision regarding S.F.'s testimony at the 18-month permanency review hearing.
S.F.'s counsel was present on July 8 and 10, but waived closing argument and her appearance for July 12, when the juvenile court issued its oral ruling. --------
III. DISPOSITION
The petition for extraordinary writ is denied.
/s/_________
DANNER, J. WE CONCUR: /s/_________
GREENWOOD, P.J. /s/_________
GROVER, J.