Opinion
D060189 Super. Ct. No. EJ3247
01-12-2012
In re NICHOLAS C., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. JACQUELINE C., Defendant and Appellant,
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from an order of the Superior Court of San Diego County, Michael J. Martindill, Juvenile Court Referee. Affirmed.
Jacqueline C. appeals an order authorizing her son, Nicholas C., to travel with his foster parents to Tijuana, B.C., Mexico. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Nicholas C., born January 2001, is a special needs child who was adopted by his older sister, Jacqueline, in early 2009. Nicholas's condition was diagnosed as moderate mental retardation, disruptive behavior, intractable epilepsy and enuresis. Nicholas experienced atypical absence seizures, tonic seizures and astatic seizures. He had difficulty walking and wore a protective helmet. At age nine, he functioned at a two-to-four year age level academically and emotionally. He could write his name and count to 15, but he could not read letters or numbers. Nicholas was generally capable of communicating his wants and needs.
In August 2010, the juvenile court adjudicated Nicholas to be a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivision (b), because of Jacqueline's inability to provide regular care to him. Nicholas jumped out of a second story window numerous times, ran away wearing only his underwear, displayed aggressive behaviors, including an attempt to set Jacqueline on fire, and used his bedroom as his bathroom, which Jacqueline did not clean. Jacqueline, who was then 22 years old, appeared to be overwhelmed caring for Nicholas and refused in-home services for him.
All statutory references are to the Welfare and Institutions Code.
Jacqueline had also adopted her younger sister, who was a teenager with two young children.
Nicholas was initially placed at Polinsky Children's Center (PCC). Nicholas hit staff members and other children, and destroyed property. His behaviors included biting, kicking, throwing items and swearing. The frequency and severity of those behaviors decreased over time.
In January 2011, after seven months at PCC, the San Diego County Health and Human Services Agency (the Agency) placed Nicholas with foster parents who were specially trained to meet the needs of medically fragile children and children with behavioral issues.
The six-month status review hearing was held on March 18. The social worker reported that Jacqueline's unsupervised visits with Nicholas were sporadic. After Jacqueline brought Nicholas to her home during a visit and he left the home while she was in the bathroom, the Agency required the visits to be supervised. On average, Jacqueline visited Nicholas once or twice a month until he was placed in foster care, when she stopped visiting him to allow him to adjust to his new placement. She regularly telephoned the foster parents to check on his well-being.
By February Nicholas began to establish a routine. He developed a bond with the foster father. Nicholas said he liked living with a family. With the social worker's encouragement, Jacqueline and Nicholas had a supervised visit on March 8. The juvenile court found that returning home would be detrimental to Nicholas's safety and well-being and continued his placement in foster care.
In May the social worker requested a special hearing to address the foster parent's request to take Nicholas with them on their visits to Tijuana, B.C., Mexico, to see their family. The Agency did not submit a written report for the hearing. Jacqueline opposed the request.
At the special hearing, county counsel reported that the foster parents traveled to Tijuana two to three times a month to see their family. The foster parents wanted to include Nicholas in their trips. They had not done so because Jacqueline objected. She did not believe Tijuana was a safe place for Nicholas. However, the foster parents visited their family when in Tijuana and did not stay in any public place. They had not experienced any safety problems during their previous visits. Nicholas felt left out of the foster family's event.
Minor's counsel supported the Agency's request, stating it was his understanding that Nicholas suffered and decompensated when he could not join the foster parents.
Jacqueline's counsel said Jacqueline opposed the trips because she was concerned about the crime in Mexico. Further, the trips could "conceivably at some point interfere with [her] visitation." Jacqueline asked the court to allow Nicholas to stay with her during the foster parents' weekend visits to Tijuana.
County counsel acknowledged Jacqueline's concerns about visitation. She represented to the juvenile court that the Agency would continue to provide visitation to Jacqueline and notify her of the foster parents' trips at least 48 hours in advance. The Agency would authorize each trip and know when Nicholas was in Mexico and when he returned to San Diego County.
The juvenile court, noting that Jacqueline's visitation was supervised, found that it was in Nicholas's best interests to travel with the foster parents to see their family. The court acknowledged traveling to Mexico was not completely safe, but San Diego's culture included Tijuana and the court had safely placed children with relatives in Tijuana. The court acknowledged Jacqueline's concern that the trips would interfere with her visitation and required the Agency to provide 48 hours advance notice before each trip to Jacqueline's counsel and minor's counsel.
DISCUSSION
A
The Parties' Contentions
Jacqueline contends the juvenile court abused its discretion when it granted the Agency's request to allow Nicholas to travel to Tijuana with his foster parents. She argues the Agency did not present any evidence, either in the form of a written report or sworn testimony, to show that travel to Tijuana was in Nicholas's best interests. Jacqueline further argues if this court accepts the statements of counsel as providing an evidentiary basis for the juvenile court's order, there is not sufficient evidence to support the order.
The Agency argues Jacqueline had the burden of proof to show that travel to Mexico would be detrimental to Nicholas, and forfeited her right to raise the issue on appeal by not arguing in juvenile court that insufficient evidence supported the court's order. Alternatively, the Agency contends that in view of the entire record, the court's travel order fell within its broad discretion to make orders respecting the welfare of the child.
B
Jacqueline Did Not Have the Burden of Proof
We are not persuaded by the Agency's argument Jacqueline had the burden of proof to show that travel with the foster parents to Tijuana would be detrimental to Nicholas. The Agency does not cite any authority pertaining to juvenile dependency proceedings, instead relying on In re Marriage of Abargil (2003) 106 Cal.App.4th 1294, a case concerning an international relocation child custody case under the Family Code.
Relocation cases under the Family Code are not pertinent here. (See, In re Chantal S. (1996) 13 Cal.4th 196, 200 [dependency proceedings are special proceedings with their own set of rules, governed in general by the Welfare and Institutions Code].) Instead, for special requests such as this one, the juvenile court considers whether granting the request is in the child's best interests, within the meaning of the California dependency scheme. (See, e.g., § 300.2 [the focus of the dependency scheme is on the safety, protection, and physical and emotional well-being of the child], cf. § 388, subd. (d), Cal. Rules of Court, rule 5.570(a) [court may grant a petition filed under section 388 if it appears that the best interests of the child may be promoted by the proposed change of order].)
Here, in its petition for a special hearing, the Agency implicitly asserted that traveling with the foster parents to Mexico two to three weekends a month was in Nicholas's best interests. (Evid. Code, § 500 [the party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting]; cf. People v. Williams (1999) 20 Cal.4th 119, 128 [generally, the party that has the burden on raising an issue also has the burden of proof with respect to that issue].) Here, the special hearing was similar to a hearing under section 388 in which the petitioner bears the burden of showing that the proposed change of order is in the child's best interests. (§ 388, subd. (d).) Thus Jacqueline did not have the burden to show it was in Nicholas's best interests not to be permitted to travel to Mexico with his foster parents.
The Agency used form "JV-137 (new 2-99)." It is no longer on the list of forms approved by the Judicial Council. (See California Courts, The Judicial Branch of California <http://www.courts.ca.gov/13889.htm> [as of Dec. 8, 2011].)
The Agency had the burden to show that the order it was seeking was in Nicholas's best interests. Jacqueline was not required to object to the juvenile court's order as unsupported by substantial evidence. (Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11, 23, fn. 17 [the argument a judgment is not supported by substantial evidence is "an obvious exception" to the rule of forfeiture].) Thus the issue is not forfeited on appeal. (See, generally, In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.)
C
The Juvenile Court Did Not Abuse Its Discretion When It Granted the Travel Request Jacqueline contends the Agency did not present any evidence to support its request to allow Nicholas to travel to Tijuana with the foster parents, and there is an insufficient evidentiary basis to support the juvenile court's order.
Except when there is a contested issue of fact or law, dependency proceedings are informal nonadversary proceedings. (§ 350, subd. (a) [the juvenile court controls all proceedings during the hearings with a view to the expeditious and effective ascertainment of the jurisdictional facts and future welfare of the person upon whose behalf the petition is brought].) Here, the overarching legal principle governing the subject of the action is whether the requested order was in Nicholas's best interests. (Cf., § 388, subd. (d).) In determining a child's best interests, the juvenile court considers a number of factors, including the child's physical and emotional well-being, safety and protection, with the goal of securing for a child placed in out-of-home care the "custody, care, and discipline as nearly as possible equivalent to that which should have been given by his or her parents." (§§ 202, subd. (a), 300.2.)
We review the grant or denial of a request for a special order for an abuse of discretion. (Cf., In re Shirley K. (2006) 140 Cal.App.4th 65, 71 [applying abuse of discretion standard to orders made under section 388].) While the abuse of discretion standard gives the trial court substantial latitude, "[t]he scope of discretion always resides in the particular law being applied, i.e., in the 'legal principles governing the subject of [the] action . . . .' Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an 'abuse' of discretion. [Citation.]" (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.) The juvenile court has broad discretion to "make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child." (§ 362, subd. (a).)
Although the Agency should have filed a report with the court, at the special hearing county counsel summarized the Agency's position and made an oral report to the court. Jacqueline did not dispute the factual assertions that Nicholas wanted to travel with the foster parents instead of being placed in respite care, and he felt left out when he was not permitted to join his foster parents on their weekend visits to Tijuana. The record shows that the social worker was present at the special hearing. Had Jacqueline wanted to contest county counsel's oral report, she could have presented evidence or cross-examined the social worker. Instead, she chose to proceed informally, and advised the court of her concerns about allowing Nicholas to travel to Tijuana. Thus she cannot show she was prejudiced by the procedure at the special hearing.
Although minimal, the material presented to the juvenile court at the informal special hearing allowed it to expeditiously and effectively ascertain the facts concerning the request, and make a decisions concerning Nicholas's welfare. (§§ 350, subd. (a), 362, subd. (a).) The undisputed facts at the special hearing were (1) the foster parents visited Tijuana two or three weekends a month; (2) Nicholas felt "left out" when he was not permitted to accompany the foster parents; (3) Nicholas needed consistency and structure and respite care with another foster family or at PCC tended to destabilize him; and (4) Tijuana had a high crime rate and was not a particularly safe city.
The juvenile court did not abuse its discretion when it determined that allowing Nicholas to accompany his foster parents on their visits to Tijuana was in his best interests. The record shows that Nicholas enjoyed living with a family and was bonding with his foster father. The court could reasonably determine that Nicholas' inclusion in the foster parent's family events would promote his sense of security and emotional stability. The court reasonably determined the visits to Tijuana would not interfere with Jacqueline's exercise of her visitation with Nicholas, which was approximately once or twice a month, and in the event there was a scheduling conflict, alternate visitation arrangements could be made. With respect to Tijuana's high crime rate, the court acknowledged there were safety concerns. However, the court could reasonably infer that the foster parents stayed with their family and would not take any unnecessary risks with their own or Nicholas's safety. We conclude that the court did not abuse its discretion when it found that the Agency's request to allow Nicholas to travel to Tijuana with his foster parents was in his best interests.
Although it would have been the better practice for the Agency to file a report with the court with its request for a special hearing, in view of the nature of the request and its minimal impact on Jacqueline's visitation with Nicholas and her reunification services, we conclude that the court reasonably exercised its discretion both procedurally and substantively, and Jacqueline was not prejudiced by the travel order. (Cal. Const.,
art. VI, § 13.)
DISPOSITION
The order is affirmed.
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HALLER, J.
WE CONCUR: ____________
BENKE, Acting P. J.
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NARES, J.