Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, Ct. No. CK71521, Terry Troung, Referee.
Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and Respondent.
KLEIN, P. J.
D.R. (mother) appeals orders entered following a review hearing under Welfare and Institutions Code section 366.3 continuing the placement of mother’s two children, 18-year-old B.R. and 12-year-old M.R., in the care of their adult sibling. Mother contends the juvenile court erred in refusing to consider return of the children to mother’s care and denied mother due process by requiring mother to file a section 388 petition before it would consider return of the children to mother.
Subsequent unspecified statutory references are to the Welfare and Institutions Code.
We conclude the juvenile court’s stated purpose in asking mother to file a section 388 petition, to obtain input from the Department of Children and Family Services on the matter of return of the children to mother, could have been achieved by asking the Department to file a supplemental report addressing the issue rather than requiring mother to file a section 388 petition. However, given that mother has filed numerous such petitions in this case, that requirement was not so burdensome as to constitute an abuse of the juvenile court’s discretion or a denial of due process. We therefore affirm the orders of the juvenile court.
FACTUAL AND PROCEDURAL SUMMARY
The Factual and Procedural Summary set forth here is drawn from our opinion in B226884, filed May 16, 2011.
1. The detention of the children.
The children came to the attention of the Department of Children and Family Services (the Department) after mother enrolled then nine-year-old M.R. in elementary school in January of 2008. When school staff asked about M.R.’s previous school, mother became loud and argumentative and stated M.R. stopped attending a school in Los Angeles in September of 2005. An assessment of M.R.’s educational development indicated she functioned at a kindergarten level. The police officer investigating the matter learned mother had been the subject of a psychiatric hold in January of 2005. Further, mother is bipolar and was not receiving psychiatric services.
On January 30, 2008, police officers went to mother’s motel room and found M.R. home alone. M.R. did not know mother’s whereabouts. When mother returned, she became agitated and was arrested for child endangerment and resisting arrest. M.R. and B.R. were taken into protective custody.
The detention report indicated mother twice previously had been referred to the Department. In February of 2004, a school reported M.R. misbehaved in class, had poor socialization skills and frequently was absent. The reporting party offered mother mental health services but mother refused. M.R. did not return to school and attempts to contact mother were unsuccessful. In September of 2005, M.R.’s school reported mother was hostile toward school staff and refused to provide a phone number or address.
2. Placement with maternal uncle.
In February of 2008, the children were placed in the home of maternal uncle.
The Department requested a psychological evaluation of mother because she appeared to have mental health issues that interfered with her ability to make appropriate parental decisions.
3. Adjudication of the dependency petition.
One week before the contested adjudication, the juvenile court granted mother’s request for self representation. At the start of the second day of the contested hearing, the juvenile court indicated its tentative ruling was to sustain the count that alleged mother left M.R. home alone for an extended period of time without adult supervision but it would not sustain the count alleging mother had mental health problems. After the social worker testified, the juvenile court sustained the petition as indicated.
The first and second attorneys appointed to represent mother successfully moved to withdraw as her counsel. The third attorney appointed to represent mother was relieved when mother requested pro per status.
4. Disposition.
The disposition report indicated mother had not shown any willingness to cooperate in the case plan and, on September 3, 2008, the principal of M.R.’s school reported mother attempted to disenroll M.R. because M.R. had not been placed in the fourth grade. Mother was “confrontational and challenging.”
The juvenile court ordered mother to attend parenting class and individual counseling to address case issues and to participate in a mental health assessment. The juvenile court acknowledged it had not sustained the count alleging mother had mental health issues but indicated, “I do believe that there is something going on here.”
5. The six-month review hearing.
A status report for the six-month review hearing on March 24, 2009, indicated mother was not in contact with the social worker. Maternal uncle reported mother visited regularly and the children indicate the visits go well.
The juvenile court rescinded its order directing mother to participate in a mental health assessment because the Department of Mental Health would not assess individuals who indicate they do not need an assessment.
6. The 12-month review hearing.
A social report prepared for the 12-month review hearing indicated the social worker continued to try to contact mother without success. However, mother had provided proof of enrollment in a 12-week parent education and an anger management course, and proof that she had commenced weekly counseling sessions with a psychology intern. The social worker contacted the psychology intern who indicated mother’s counseling sessions focused on parenting issues but, because mother had not signed a release, no further details could be provided.
The report indicated the Department could not safely allow unmonitored visits without first knowing where mother lived. Further, the Department did not know what was being covered in mother’s therapy sessions or if the therapist had concerns regarding mother’s mental health.
On April 10, 2009, mother’s counsel indicated mother would not sign a release but would ask her therapist to submit a letter regarding mother’s progress in counseling.
7. The 18-month review hearing.
a. Social reports.
A social report dated September 24, 2009, indicated mother’s psychology intern had reported that mother attended 18 sessions of therapy ending June 22, 2009. The report concluded it was not in the children’s best interest to return to mother at this time due to mother’s continuous instability with regards to housing and her failure to address her mental health issues.
At the hearing on September 24, 2009, mother signed a release of medical records held by the psychology intern.
A social report submitted October 7, 2009, included a letter from the psychology intern’s supervisor which stated: “Although [mother] completed approximately 18 counseling sessions, she was not able to understand her responsibility in the protection of her youngest child. She spent most of her sessions complaining about the social worker and the system that took her children.... [¶]... [¶] It is recommended that [mother] continue psychological assessment to determine possible need for medication and/or possible SSI qualification. Although she loves her children and desires to have them back, more [in depth] monitoring and treatment and increased life skills are recommended if family reunification is being considered.”
The social worker was unable to communicate with mother’s therapist at the Veterans Administration (VA) because mother would not sign a release of VA information. However, on October 1, 2009, mother provided the social worker a letter dated March 2, 2009, from Bing Hsu, M.D., mother’s psychiatrist at the VA. In the letter, Dr. Hsu indicated he treated mother for approximately one year in 2005 and treated her again in 2009. Dr. Hsu stated mother had been diagnosed with “a chronic psychiatric condition for which she is receiving treatment.”
On November 3, 2009, mother reported she had leased an apartment. Mother did not provide proof of this information and did not want the social worker to communicate with the landlord.
b. Termination of family reunification services.
On November 5, 2009, the juvenile court terminated family reunification services and set a hearing under section 366.26 on March 5, 2010, to consider a permanent plan of legal guardianship with maternal uncle for M.R. The juvenile court directed the Department to interview B.R. with respect to her preferred permanent plan. At the close of the hearing, the juvenile court granted mother unmonitored visitation.
8. Placement of the children with their adult sibling.
In a report prepared for March 5, 2010, the Department indicated maternal uncle had left the state and the children had been placed in the care of their adult sister. The juvenile court placed the permanency planning hearing off calendar and continued the matter for review.
A social report prepared for May 6, 2010, indicated the children enjoyed living with their sister but wanted to return to mother’s home.
On May 6, 2010, the juvenile court continued the children in a permanent plan of placement with their adult sibling with the goal of returning the children to mother. The juvenile court found mother had made minimal progress toward mitigating the causes that necessitated placement of the children but granted mother overnight visitation.
On July 9, 2010, mother filed a section 388 petition requesting placement of the children in mother’s home. The petition noted mother’s unmonitored visitation had gone well, mother now had a stable residence, both children wished to live with mother and there was no current risk of harm to the children in mother’s care.
The Department filed a social report to address mother’s petition. It indicated that, when the social worker telephoned mother to inquire about mother’s individual counseling, mother became “very hostile and stated she already [had] provided the completion of the counseling certificate to [the juvenile] court several months ago.” However, the file contained no indication mother had completed counseling. Further, mother’s psychiatrist was unable to provide information because mother was unwilling to sign a release. The report concluded that, although mother’s home was appropriate, the Department could not recommend return of the children to mother’s care without verification mother had completed counseling.
On August 20, 2010, before adjudicating the section 388 petition, the juvenile court conducted a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118. After hearing from mother and counsel, the juvenile court denied mother’s request for substitution of counsel, finding the conflict between mother and current counsel did not prevent effective representation.
With respect to the section 388 petition, the juvenile court found insufficient evidence of changed circumstance and referred the case to family preservation, stating it would grant mother’s petition if mother agreed to participate in family preservation and individual counseling.
9. Subsequent social reports and review hearings.
A social report prepared for October 1, 2010, indicated the social worker had mailed a certified letter to mother’s address and had left three telephone messages asking mother to contact the social worker to sign the necessary family preservation services referral. However, the social worker had received no response from mother.
At the hearing, the juvenile court indicated the matter was on calendar for a progress report on the family preservation referral. Mother stated she had not spoken to anyone about family preservation services. The juvenile court advised mother family preservation services work with parents and their children in the home and usually are ordered in anticipation of returning children to the home. However, the services are voluntary and cannot be put in place unless the parent cooperates. Mother responded she saw no need for home visits and would not voluntarily participate in family preservation services. The juvenile court indicated it was trying to help mother and, given that mother had failed to participate in the individual counseling aspect of the case plan, family preservation services were needed to ensure the children would be safe in mother’s home. When the juvenile court advised mother to speak to her attorney about family preservation services, mother replied, “She never talks to me.”
A report prepared for November 4, 2010, indicated the children continued to reside with their adult sister and the “placement remains stable and appropriate for both youths.” Both children indicated they wanted to return to mother’s home as soon as possible, they missed residing with mother and they looked forward to visits with her.
At the hearing, mother requested return of the children. The juvenile court advised mother that, before the children could be returned, mother would have to agree to family preservation services, noting these services would not be provided by the Department but by a separate agency. The juvenile court again indicated it was concerned with mother’s failure to comply with the individual counseling component of the case plan and asked mother to speak to her attorney about family preservation services. The juvenile court inquired whether mother had received a written description of family preservation services, which was available in the courtroom. Mother responded her attorney did not talk to her and she had received nothing. At the close of the hearing, the juvenile court ordered the children to remain placed with their adult sibling.
10. B226884.
In B226884, mother appealed the denial of her section 388 petition filed July 9, 2010, and claimed the juvenile court erroneously failed to conduct a Marsden hearing to address counsel’s refusal to discuss family preservation services with mother.
We concluded the record supported the juvenile court’s finding mother’s progress under the case plan was insufficient to warrant return of the children to mother without family preservation services. We noted the juvenile court repeatedly had advised mother it was reluctant to return the children to her care because she failed to comply with the individual counseling aspect of the case plan. We further noted “the record contains substantial evidence indicating mother had mental health issues that affected her ability to supervise the children.” We concluded that: “Given the history of this case, the juvenile court was not unreasonable in refusing to return the children to mother’s care without family preservation services in place.” Thus, the juvenile court did not abuse its discretion in denying mother’s section 388 petition.
In rejecting mother’s claim of Marsden error, we noted mother’s assertion her attorney had refused to speak to her about family preservation services was not credible given that mother had refused to review readily available written material about family preservation or contact the social worker to discuss those services.
11. The most recent developments.
On January 4, 2011, mother filed a section 388 seeking return of the children, which the juvenile court summarily denied.
A status review report prepared for May 5, 2011, indicated the children continued to live with their adult sister, the placement remained stable and appropriate, and the children were in good health and well behaved. Unmonitored visits with mother went well and both children wished to return to mother’s home as soon as possible.
On May 5, 2011, the children’s attorney indicated the children wanted to return home. B.R. told the juvenile court she wanted to be a pediatric nurse and had applied to several nursing schools. M.R. said she was doing well in school. Counsel for mother asked the juvenile court to return the children to her, noting her unmonitored visitation had been successful.
The juvenile court responded: “I need a [section] 388 petition so that the [D]epartment can provide input on this. And as I stated on the record many times before, the reason why I have not been able to return [the children to mother] is I do not have confidence that Miss R. will abide by my orders. [¶] I would like for family preservation to be in place so that I have some monitoring, some contact with the family on a regular, consistent basis, and I’m not getting that input at this point.”
The juvenile court found continued jurisdiction was necessary, the Department had complied with the case plan and mother had made partial progress. The juvenile court indicated it had considered all permanency planning options and found by clear and convincing evidence the current placement was appropriate and ordered that placement as the permanent plan with a specific goal of returning the children home. The juvenile court set the case for further review on October 27, 2011.
CONTENTIONS
Mother contends the juvenile court erred in refusing to consider return of the children to mother’s care without a section 388 petition and improperly failed to exercise its discretion. Further, by requiring mother to file a section 388 petition before it would consider return of the children to mother, the juvenile court denied mother due process. Mother also contends the evidence showed immediate return of the children to her care was appropriate.
DISCUSSION
1. Review under section 366.3.
In re J.F. (2011) 196 Cal.App.4th 321, summarized the review process under section 366.3. “Section 366.3, subdivision (e), directs the reviewing body to inquire about the progress being made to provide a permanent home for the child and other matters, including the necessity for, and appropriateness of, the placement; the child’s safety; the extent of the agency’s compliance in making reasonable efforts either to return the child to the safe home of the parent or to complete whatever steps are necessary to finalize the child’s permanent placement; and the extent of progress the parent has made toward alleviating or mitigating the causes necessitating the child’s placement in foster care. (§ 366.3, subd. (e).)” (In re J.F., supra, at p. 330.)
“Unless parental rights have been permanently terminated, the child’s parent is ‘entitled to receive notice of, and participate in, those hearings.’ (§ 366.3, subd. (f).) Continued foster care is presumed to be in the child’s best interests unless the parent proves by a preponderance of the evidence that further efforts at reunification are the best alternative for the child. (Ibid.)” (In re J.F., supra, 196 Cal.App.4th at p. 330.)
“The court is required to consider all permanency planning options, including whether the child should be returned to the home of the parent, placed for adoption, appointed a legal guardian or placed in another planned permanent living arrangement. (§ 366.3, subd. (h).) The court must set a section 366.26 hearing unless it determines by clear and convincing evidence there is a compelling reason that a section 366.26 hearing is not in the child’s best interest. (§ 366.3, subd. (h).) A compelling reason exists when the child is being returned to the home of the parent, the child is not a proper subject for adoption or there is no one willing to accept legal guardianship of the child. (Ibid.)” (In re J.F., supra, 196 Cal.App.4th at p. 330.)
With these provisions in mind, we turn to mother’s contentions.
2. Any error in requiring mother to file a section 388 petition was harmless.
Mother contends the juvenile court improperly refused to consider whether mother could rebut section 366.3’s presumption the children could not be returned to her care. Mother claims that, in failing to consider her request without a section 388 petition, the juvenile court used the wrong legal standard, failed to exercise its discretion and placed a non-statutory burden upon mother. Mother argues the requirement that she file a section 388 petition before the juvenile court would consider return of the children to her care was tantamount to requiring mother to make an offer of proof before allowing her to be heard at the section 366.3 hearing, thereby denying mother due process. (See In re J.F., supra, 196 Cal.App.4th at pp. 326-327, 335-336 [juvenile court may not condition a parent’s right to be heard at a post-permanency review hearing on an offer of proof].) Mother asserts that, because the matter was set for a section 366.3 hearing and return to the parent is an issue at such a hearing, the Department should have been prepared to address that issue.
Mother notes the juvenile court did not consider mother’s request for return and did not inquire whether mother would accept family preservation services. Mother claims it is impossible to determine on the present record why the juvenile court was certain mother would not accept family preservation services, noting mother stated at two previous hearings that her attorney would not speak to her about family preservation services. Mother concludes the matter must be reversed and remanded to the juvenile court with directions to consider whether mother can overcome the statutory presumption for continued placement.
Mother’s claims are not persuasive. Although mother argues the juvenile court’s requirement that she file a section 388 petition prevented mother from presenting evidence, the record indicates mother did not offer any evidence. Rather, she merely reiterated her request for return of the children. By asking mother to file a section 388 petition, the juvenile court indicated its willingness to address the issue on the merits. Mother could have achieved the result she seeks on appeal, remand with directions to consider mother’s request for return of the children, merely by complying with the juvenile court’s request that she file a section 388 petition. Mother previously has filed numerous section 388 petitions in this matter on the forms provided for that purpose.
Further, the juvenile court’s order was not tantamount to requiring mother to provide an offer of proof. Rather, the juvenile court requested the filing of a section 388 petition to provide a means of obtaining input from the Department on the issue. Concededly, the juvenile court could have obtained input from the Department by ordering it to address the issue in a supplemental report. Thus, we agree with mother that a section 388 petition was not necessary to the juvenile court’s consideration of the issue. However, in the circumstances presented, the request was not so unreasonable or burdensome as to amount to an abuse of discretion or a denial of due process.
Mother claims it cannot be determined whether she understood the nature of family preservation services in that mother twice previously advised the juvenile court her attorney would not speak with her about family preservation services. However, the record indicates the juvenile court repeatedly has explained the nature of family preservation services to mother but mother steadfastly refuses to cooperate in the provision of those services.
The record further indicates the juvenile court has identified return of the children to mother as the appropriate permanent plan and the juvenile court frequently has considered mother’s request to implement that plan. However, mother remains unwilling to cooperate in family preservation services. Given this backdrop, any error in requiring mother to file a section 388 petition must be seen as harmless. We conclude the juvenile court adequately performed the requisite statutory functions and affirm the orders made at the section 366.3 review hearing.
3. Mother fails to demonstrate error in the juvenile court’s placement order.
Mother contends that, even under the deferential substantial evidence standard of review, the juvenile court erred when it found continued out-of-home placement was necessary. Mother notes that, while a child’s wishes are not determinative, they are to be given credence and may demonstrate that return to the parent is in the child’s best interest. (In re Julian L. (1998) 67 Cal.App.4th 204, 208-209; In re Michael D. (1996) 51 Cal.App.4th 1074, 1087.)
However, as we previously held in B224886, the juvenile court’s refusal to return the children is not inappropriate given the history of the case and mother’s refusal to accept family preservation services. Further, mother has presented no new evidence that might have shown that return to mother was appropriate. We therefore decline to modify the juvenile court’s placement order.
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: CROSKEY, J.KITCHING, J.