Opinion
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Orange County No. DP010159 Jane Shade, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant E.T.
Lisa A. Raneri, under appointment by the Court of Appeal, for Defendant and Appellant Efren C.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent Orange County Social Services Agency.
Hassan Gorguinpour, under appointment by the Court of Appeal, for Plaintiff and Respondent Victoria C.
Lori A. Fields, under appointment by the Court of Appeal, for the Minor.
OPINION
BEDSWORTH, ACTING P. J.
INTRODUCTION
A.C., the child who is the subject of this appeal, was removed from her mother’s care when she was three years old and placed with a foster family. A.C.’s father was nowhere to be found. Although offered reunification services for the statutory period, her mother was unable to profit from them, and the services were terminated. A.C.’s foster family wanted to adopt her, but, because the court found a strong bond with her mother, A.C. was placed under her foster mother’s guardianship instead.
Years passed. A.C.’s foster family still wanted to adopt her. Orange County Social Services Agency (SSA) strongly urged adoption – the preferred placement for children unable to reunify with their parents. A petition was filed and a hearing set, but before it could be held, A.C.’s father appeared – after six years of absence – and wanted to take her home. A.C.’s mother, who was still visiting, also opposed adoption and wanted her back. By this time, A.C. was nine years old.
The court denied A.C.’s father’s petition for custody or immediate visitation. The court granted part of her mother’s petition. The court did not, however, order A.C. restored to her mother’s custody. Instead, it continued the guardianship and ordered more reunification services for A.C.’s mother. Subsequently, pursuant to a stipulation, the court ordered one visit for A.C.’s father, with subsequent visits to depend on the outcome of the first visit, and once-a-week visitation between A.C. and her mother, which is what they had before the hearing.
We affirm the court’s order with respect to A.C.’s father. We agree that he did not carry his burden to show that granting his petition would be in A.C.’s best interests. The court’s subsequent order for at least one visit between A.C. and her father also somewhat moots the argument on appeal that he has been deprived of his right to establish a relationship with A.C. through visitation.
With respect to A.C.’s mother, we reverse. The California Legislature has made it very clear that family reunification services may be offered only for a finite period of time and under certain well-defined conditions. The court abused its discretion when it ignored these constraints on reunification services at this point in A.C.’s dependency. If A.C. could not be returned to her mother’s custody and if increased visitation was not warranted, the petition should have been denied, and the court should then have ruled on the adoption petition.
FACTS
In May 2004, when A.C was three years old, her mother, Victoria C., threatened to commit suicide in front of her and her 11-year-old brother. Victoria told A.C. to bring her a knife from the kitchen; when A.C. complied, Victoria threatened to stab herself. A roommate called the police, and SSA detained both children. Victoria tried to pass the incident off as a joke and a “misunderstanding.” Later on, however, she admitted that she had not been joking.
She told the police who responded to the domestic disturbance call that she meant to use the knife to cut flowers.
Both children were placed in foster care. At first, they were in separate homes; eventually, however, they were both placed with the T. family, where A.C. had been placed after being detained in Orangewood for just over a month.
The children’s father, Efren C., could not be located at the time of these events and for several years afterwards. During the first two years that the children were with the T. family, Victoria had two more sons, the first with the man she had been living with when the children were detained and the second with another man she knew briefly. Both men have since gone their own ways.
Victoria and Efren together have three more children, supposedly living in Mexico.
After A.C. and her brother were detained, Victoria visited A.C. regularly. Her visits were initially monitored ones. They became unmonitored in late 2005.
Victoria was provided with 18 months of reunification services, and she was psychologically evaluated in October 2004. During this time, she, and eventually her first new baby, moved from place to place, making it difficult for SSA to stay in contact with her. She also found it hard to find and keep a job.
Victoria was unable to complete her reunification requirements, and reunification services were terminated in January 2006. At the same time, the court ordered long-term foster care as the permanent plan. The SSA reports identified not only Victoria’s lack of financial resources and appropriate housing as impediments to reunification but also her inability to understand the responsibilities of parenthood and to engage in her children’s lives. For example, although she visited frequently, she never asked questions regarding A.C.’s progress. In August 2006, she gave birth to another son.
Victoria’s subsequent psychological evaluation placed her I.Q. at 80, plus or minus four points, which puts her in or near the mildly mentally retarded range. (Victoria’s psychological expert testified that 70, plus or minus 5, is considered mildly mentally retarded.) This assessment agrees with the first of the two bonding studies, performed in 2007, which put Victoria’s level of intelligence in the low-average range. The instructors in her parenting class, which she had to repeat, remarked on her inability to absorb information from classes.
In January 2007, SSA reported that A.C.’s foster parents, the T.s, wished to adopt A.C., whom they had begun to regard as their own child. Although Victoria was allowed to visit on both Saturdays and Sundays, in April 2007, A.C. began to refuse to see Victoria on Sundays, preferring to stay with her foster family. She continued to resist efforts to make her visit her mother more than once a week. SSA strongly recommended adoption for A.C., who was now six years old.
A contested periodic review took place between May 16 and June 5, 2007. After hearing testimony from various witnesses, including A.C. in chambers, the court set a selection and implementation hearing under Welfare and Institutions Code section 366.26 for October 2, 2007. The court ordered a bonding study for the October 2007 hearing on A.C.’s placement. During this period, Victoria petitioned under section 388 to have both children returned to her or to be provided with more reunification services.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The hearing eventually took place on December 19, 2007. The court denied Victoria’s section 388 petition, finding that she had not demonstrated the necessary changed circumstances. The court found a strong bond between Victoria and A.C. existed, apparently based in for the most part on the visitation record. The court therefore determined that guardianship, with Mrs. T. (E.T.) as guardian, and continued visitation with Victoria was best for A.C. Letters of guardianship were issued to Mrs. T. on January 14, 2008. The court did not terminate Victoria’s parental rights.
Two more periodic reviews took place, in July 2008 and in January 2009. At the latter review, SSA recommended another hearing to consider A.C.’s adoption. The court ordered another bonding study and set a hearing date of May 19, 2009.
The second bonding study was completed in April 2009.
Then A.C.’s father, Efren, showed up. He had been living in Modesto for about six years with his girlfriend and her children. Efren claimed that he had not known where A.C. was living between August 2003, when he abandoned the family, and March 2009, when SSA finally found him. The court granted Efren presumed father status on June 24, 2009. A.C. was by that time eight years old. The court ordered therapy for A.C. to deal with this new person in her life. A.C. began therapy in August 2009.
The record does not explain how SSA finally found Efren.
SSA filed a petition seeking a termination of parental rights and adoption by the T.s under section 366.26 in April 2009. Victoria, Efren, and A.C. each filed petitions under section 388. At the hearing on September 8, 2009 (continued from May), all three petitions were withdrawn pursuant to stipulation. The court confirmed the legal guardianship, and a new visitation schedule, which included a change from unmonitored to monitored visitation, was implemented for A.C. and Victoria. The court ordered SSA to use its best efforts to facilitate visitation between Efren and A.C. in a therapeutic setting, with input from A.C. and her therapist.
SSA continued to believe adoption to be the best plan for A.C., and it filed a third petition under section 366.26. The hearing was set for June 2010 and was continued several times. In the meantime, Mrs. T. filed for de facto parent status and prospective adoptive parent status. These petitions were granted in June 2010.
The preliminary hearing alone had to be continued several times while SSA tried to find Efren – who had become lost again – to give him notice.
A “de facto parent” is a “person who, on a day-to-day basis, assumes the role of parent, seeking to fulfill both the child’s physical needs and his psychological needs for affection and care.” (In re B.G. (1974) 11 Cal.3d 679, 692, fn. 18; see also Cal. Rule of Court, rule 5.502, subd. (10).)
On August 23, 2010, Efren filed his section 388 petition (the subject of this appeal), asking to change the guardianship of A.C., which the court had ordered in December 2007. In this petition, he asked that A.C. be placed in his care under a family maintenance plan. Failing that, he wanted a 60-day trial return or “liberal visits.” He also asked that SSA’s section 366.26 hearing be continued for 60 days.
Three previous attempts to file this petition were denied without prejudice because of procedural defects.
Victoria also filed a section 388 petition on the same day. She asked to set aside the guardianship and return A.C. to her care. Alternatively, she wanted family reunification services or, third choice, increased unmonitored visitation and telephone calls.
The hearing on the three petitions – SSA’s section 366.26 petition, Efren’s section 388 petition, and Victoria’s section 388 petition – took place between August 23 and October 5, 2010. The court heard testimony from Victoria; Efren; A.C.’s social worker and her therapist; Victoria’s psychological expert, Dr. Gomez; Ms. Gonzalez, who had been monitoring Victoria’s visits since the previous November; Victoria’s sister; a therapist who had worked briefly with Victoria in the spring of 2010; and Dr. Canul, the psychologist who had performed the two bonding studies.
Dr. Gomez, whom Victoria hired to evaluate her, saw only Victoria. He never saw A.C., and he never observed Victoria and A.C. together.
The court denied Efren’s section 388 petition on the grounds he had not carried his burden to show that the modifications he requested would be in A.C.’s best interest or that circumstances had changed. The court particularly noted his total absence from A.C.’s life for five or six years and his feeble attempts to find her after he lost contact with her at age two. The court was also not impressed by his efforts to make up for lost time once SSA had found him and informed him of A.C.’s situation. Although he had attended some counseling sessions, as required before he could be re-introduced to A.C. through visitation, and although he had written some cards and letters to her, he did not appear to have gained enough insight into either his own behavior or A.C.’s needs to make visits beneficial to her. The court did not explicitly rule on the other alternatives suggested in Efren’s petition – placement with him or 60-day trial return – but it is clear that Efren had also failed to support these alternatives, involving more contact than visits. As the final day for the hearing on the petitions came to an end, Efren’s counsel orally requested reunification services for Efren. The court denied the request.
As to Victoria, the court granted only the portion of her section 388 petition that requested more reunification services. The court found that Victoria had demonstrated the changed circumstances necessary for a successful section 388 petition, relying especially on the testimony of Ms. Gonzalez (the monitor) and Dr. Gomez (Victoria’s psychologist-expert). The court referred specifically to the monitor’s testimony about the activities that Victoria and A.C. engaged in during their visits. It also was impressed by Victoria’s ability to recall dates when visits with A.C. had been cancelled. The court regarded this testimony as refuting evidence from the previous psychologists regarding Victoria’s intellectual limitations. “So it seems to me that the circumstances have changed, and that it’s in the best interest of [Victoria] to grant her request to change the court order.” The court was particularly concerned that “there’s an appropriate continuous contact with [Victoria], and I want to make sure that contact continues in the way that’s appropriate.” The court ordered that further reunification services be provided for Victoria and vacated the hearing on SSA’s section 366.26 petition. The court did not, however, order a termination of the guardianship.
Ms. Gonzalez testified that she had been monitoring the visits between Victoria and A.C. from November 2009 to the time of the hearing. Between November and March 2010, Victoria showed little interest in A.C. during the visits. Ms. Gonzalez began prompting Victoria in November to become more involved with A.C., suggesting activities they might engage in. From November to March, this prompting had no effect, but at the end of March or the beginning of April 2010, Victoria began to “take the lead of organizing herself a little bit more with activities for the kids....” Victoria was also more affectionate with A.C., whereas before she had just sat and watched A.C. play with her younger half-brothers. Since the end of March 2010, Ms. Gonzalez testified, Victoria has “grown to get to know her child” and she and A.C. were “getting to know each other, so they’re close.” A.C. was, as this point, nine years old.
Victoria’s counsel, obviously realizing that the court was using the wrong standard, attempted to get the court to correct the statement about whose best interests were being served by changing the order. The court, however, reiterated that it was basing the ruling on Victoria’s best interests and, as an afterthought, on A.C.’s as well.
SSA prepared a new case plan after the court’s decision. The new case plan specified conjoint therapy for Victoria with A.C. and individual therapy with an eye toward reunification. The case plan also specified monitored visits for five hours on a Saturday, with visits monitored by SSA or an individual approved by SSA.
A stipulation approved by all parties was filed on October 19; it confirmed the weekly visits and specified that Victoria did not have to provide the monitor. The parties also stipulated to a visit between Efren and A.C. “in a therapeutic context, ” with further visits depending on the outcome of the first visit.
The court entered an order on October 27, 2010, approving the one-page stipulation and setting some hearing dates, but saying nothing about the new case plan itself. Although the court generally ordered family reunification services at the end of the hearing on October 5, it has not yet ordered any specific reunification services. The October 27 order did not incorporate the new case plan, which is where the potential reunification services were specified.
The order provides, “All prior orders to remain in full force and effect.” The “prior orders, ” however, did not encompass the new case plan.
Efren has appealed from the order denying his section 388 petition on the grounds that the court abused its discretion in refusing to grant liberal visitation and reunification services. Mrs. T. and A.C. have appealed from the order granting Victoria’s section 388 petition. A.C. has also appealed from the order entered on October 27, 2010. SSA has opposed Efren’s appeal.
DISCUSSION
All three appeals must be viewed against the statutory scheme established by the California Legislature to deal with neglected and abused children. The relevant code sections taken together create a two-phase system. During the first phase, the state must do all it can to get the parents and the children back together again. It must normally offer the parents assistance to try to correct whatever deficiencies caused the children to be removed and detained. The parents’ right to a family that includes their children has priority. (See In re Jasmon O. (1994) 8 Cal.4th 398, 420; In re Marilyn H. (1993) 5 Cal.4th 295, 308.)
After the lapse of a certain amount of time, however, phase two kicks in. No longer are the parents’ rights and problems paramount. They have had their shot; now the child’s right to a stable and permanent home comes to the fore. (In re Jasmon O., supra, 8 Cal.4th at p. 420; In re Marilyn H., supra, 5 Cal.4th at p. 309.) Changing this focus acknowledges an irrefutable fact: what may seem a short period of time to an adult “can be a lifetime to a young child.” (Id. at p. 310.) The statutory scheme therefore sets up time limits and a series of actions intended to lead to one goal – a safe and permanent home for the child. If the parents cannot provide such a home within the prescribed time, then somebody else assumes this task. Before the reunification period ends, it is the state’s burden to show why the parent and child should be kept apart; afterwards, the parent has the burden of showing why they should be together. (In re Dakota H. (2005) 132 Cal.App.4th 212, 223.)
The route laid out in the code has several well defined milestones along the way. First, a child must be found to be a dependent of the court because of some threat to his or her physical or emotional well-being. (§ 300.) The parent has the opportunity to challenge the court’s jurisdiction over the child at that point. (In re David M. (2005) 134 Cal.App.4th 822, 826.) If the challenge is unsuccessful and the child is placed elsewhere, then the court typically orders the county to provide reunification services. (§ 361.5.) For children in foster care, the court checks at six-month intervals to see how the parent and child are progressing. (§ 366, subd. (a)(1).) Unless social services can show detriment to the child at the 18-month point, the child goes home. (§ 366.22, subd. (a).)
The circumstances under which the court need not order reunification services are set forth in section 361.5, subdivision (b).
Reunification services do not go on indefinitely. Their statutory definition emphasizes their temporary nature: “[F]amily reunification services are activities designed to provide time-limited foster care services to prevent or remedy neglect, abuse, or exploitation, when the child cannot safely remain at home, and needs temporary foster care, while services are provided to reunite the family.” (§ 16501, subd. (h).) For a child who was at least three years old at the time of detention (as A.C. barely was), services are provided between the date of the dispositional hearing and the permanency hearing under section 366.21, subdivision (f), which hearing must be held no later than 12 months after the child entered foster care. (§ 361.5, subd. (a)(1)(A).) This period can be extended at the permanency hearing to a maximum of 18 months from the date the child was originally removed from the parent’s custody (§ 361.5, subd. (a)(2), italics added), or at the continued hearing under section 366.22 to a maximum of 24 months from the date the child was originally removed from the parent’s custody. (§ 361.5, subd. (a)(3), italics added.) In both cases, however, the extension is conditioned on a showing that “the permanent plan for the child is that he or she will be returned and safely maintained in the home within the extended time period. The court shall extend the time period only if it finds that it is in the child’s best interest to have the time period extended and that there is a substantial probability that the child will be returned to the physical custody of his or her parent....” (§ 361.5, subds. (a)(2), (a)(3), italics added; see also Cal. Rule of Court, rule 5.720, subd. (b)(3)(A).)
Additional reunification services may also be provided to parents if a guardianship is revoked or terminated and the parents demonstrate that reunification with them is the best alternative for the child (§ 366.3, subd. (b)), or if the child is not in a legal guardianship and a parent whose rights have not been terminated establishes that further efforts at reunification are in the child’s best interests. (§ 366.3, subds. (d), (f).)
If this time period has expired without a successful completion of reunification services, the services are terminated, and the court must hold a hearing to consider the statutory alternatives for permanent placement. The Legislature has ranked them in order of preference: adoption, guardianship, long-term foster care. (§ 366.26, subd. (b).) Once again the emphasis is on stability and permanence for the child.
Relative guardianship is preferable to adoption when no adoptive family has been identified at the time of the hearing. (§ 366.26, subds. (b)(2), (b)(3).) An appropriate adoptive family must be found within six months. (Id., subd. (b)(3).)
There are “escape mechanisms” built in along this route in the form of burdens of proof and opportunities to modify orders. (In re Marilyn H., supra, 5 Cal.4th at pp. 308-309; see also In re Zeth S. (2003) 31 Cal.4th 396, 410-411; In re Hashem H. (1996) 45 Cal.App.4th 1791, 1800.) These mechanisms, however, are not unconditionally available. And they must be employed with due attention to the ultimate goal.
A parent whose parental rights have not been terminated may petition at any time for “a hearing to change, modify, or set aside any order of the court previously made or to terminate the jurisdiction of the court.” (§ 388, subd. (a).) This is one of the “escape mechanisms, ” meant to insure that the parent has every chance to reform before it is too late. A petition made after reunification services have been terminated, however, is made at the eleventh hour. By this time, a child over the age of three has usually been in someone else’s care for nearly two years, at a minimum. For a child removed at a very young age, this may well be close to half of his or her life. The emphasis now is on getting the child into a stable and permanent home, one the parents have demonstrated they are unable to provide.
Accordingly, the parent seeking to halt the train at this point must show “change of circumstance or new evidence” which would “require the change of order or termination of jurisdiction.” (§ 388, subd. (a).) The parent must also show that the change of order or termination of jurisdiction is in the child’s best interest. (Cal. Rule of Court, rule 5.570, subd. (e)(1).) In determining whether to modify an order, the court considers “the seriousness of the problem leading to the dependency and the reason for its continuation; the strength of the parent-child and child-caretaker bonds and the time the child has been in the system; and the nature of the change of circumstance, the ease by which it could be achieved, and the reason it did not occur sooner.” (In re Amber M. (2002) 103 Cal.App.4th 681, 685.)
I. Standard of Review
The grant or denial of a section 388 petition is reviewed for abuse of discretion. “The essence of a section 388 petition is the petitioner’s assertion that she or he can demonstrate, by a preponderance of the evidence, that new evidence or a change in circumstances exists warranting a finding that the best interests of the minor child will be served if a previous order of the court is changed, modified, or set aside. The petition is addressed to the dependency court’s discretion and in an appeal from the order on the petition, the task of the reviewing court is to determine whether that discretion has been abused.” (In re Marcos G. (2010) 182 Cal.App.4th 369, 382; see also In re Vincent M. (2008) 161 Cal.App.4th 943, 954 [grant of section 388 petition reviewed for abuse of discretion].)
“Abuse of discretion” is customarily defined as “exceeding the bounds of reason.” (See, e.g., Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) Abuse of discretion is not, however, confined to decisions demonstrating that a judge has lost his or her marbles. It also applies to decisions that “transgress[] the confines of the applicable principles of law.” (City of Sacramento v. Drew (1989) 207 Cal.App.3th 1287, 1297.) The court must exercise its discretion so as to best effectuate the law being applied. A court may be mistaken about the scope of its discretion, even though its mistake may not be illogical or unreasonable. (See Id. at pp. 1297-1298.) Nevertheless, if it bases its ruling on this mistaken assumption, it has abused its discretion.
II. The Disposition of Victoria’s Section 388 Petition
A.C. was removed from Victoria’s custody on May 11, 2004. The date of the jurisdiction and disposition hearing was June 25, 2004. At the time she was removed, A.C. was three years old. Under section 361.5, subdivision (a)(1)(A), Victoria could receive reunification services between the disposition hearing and a date that was 12 months after A.C. “entered foster care as defined in Section 361.49.” (§ 361.5, subd. (a)(1)(B).) Section 361.49 in turn pinpoints the date on which a child entered foster care as “the earlier of the date of the jurisdiction hearing held pursuant to Section 356 or the date that is 60 days after the date on which the child was initially removed from the physical custody of his or her parent....”
Sixty days after A.C. was removed from Victoria’s custody was July 11, 2004; therefore, the date on which A.C. “entered foster care” was June 25, 2004. Victoria could receive reunification services under section 361.5, subdivision (a)(1)(A) until June 25, 2005. Her reunification services were actually terminated in January 2006, when A.C. was nearly five years old.
Under section 361.5, subdivision(a)(3), reunification services can be extended up to a maximum period of 18 months from removal from custody under certain conditions, and under section 361.5, subdivision (a)(4), they can be extended up to a maximum period of 24 months from removal under certain conditions. One of these conditions is a court finding of “substantial probability that the child will be returned to the physical custody of his or her parent... within the extended time period....” (§ 361.5, subds. (a)(3), (a)(4).)
Eighteen months from the date of A.C.’s removal elapsed on November 10, 2002. Twenty-four months from her removal elapsed on May 10, 2003. There was never any probability, let alone a substantial probability, that A.C. would be returned to Victoria during either period. (Cf. A.H. v. Superior Court (2010) 182 Cal.App.4th 1050, 1060 [to extend reunification services beyond target dates, “there must be more than a mere hope that additional services will facilitate reunification.”].)
This situation resembles the one in In re N.M. (2003) 108 Cal.App.4th 845. In that case, a child under three was removed from his parents after they had been caught using drugs. The child was allowed to reside with his mother under a maintenance program, and eventually the father was also allowed to move back home, after he had completed a drug program and a parenting program. (Id. at pp. 848-849.) The parents started using drugs again, and social services took the child away again. The court found that the child could not be returned to his parents immediately, but ordered more reunification services. (Id. at p. 851.)
The appellate court reversed. The parents had had the full reunification period to which they were statutorily entitled, and they were not entitled to a return to “‘“square one.”’ [Citations.]” (In re N.M., supra, 108 Cal.App.4th at p. 853.) Instead, the resumption of reunification services is governed by statute. (Ibid.)
The same reasoning applies here, for the same reason. Victoria’s reunification services were terminated in January 2006, after the period prescribed by statute. Extending reunification services beyond this period is act in excess of the dependency court’s jurisdiction and therefore an abuse of discretion. (Los Angeles County Dept. of Children Etc. Services v. Superior Court (1997) 60 Cal.App.4th 1088, 1091; see also Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1510 [“‘[T]he statutory mandate for limiting reunification services to a maximum of 18 months from the date of the original removal will control over any conflict in the statutes.’ [Citation.]”].)
In 2010, over four years after Victoria’s reunification services were terminated, SSA filed its third petition under section 366.26, seeking adoption for A.C. Victoria was entitled to ask for a change in the court’s order of guardianship under section 388, because her parental rights had not been terminated. But she was not entitled to an order for more reunification services. Although, as stated in In re Hashem H., supra, 45 Cal.App.4th at p. 1800, a section 388 petition may “revive the reunification issue” before parental rights are terminated, that does not mean it can revive the reunification services issue.
Victoria argues the dependency court could make any order it pleased under section 388, citing Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872 (Sheila S.). In Sheila S., social services filed a petition under section 388 seeking to change a dispositional order providing reunification services to the mother of three detained children. In light of the mother’s profoundly compromised psychological state, social services wanted to bypass reunification services altogether and go straight to selection and implementation. (Id. at pp. 876-877.) The court upheld the use of section 388 for this purpose, on the grounds that section 388 was a specific statute allowing a court to modify “any order” in any way. (Id. at p. 878.)
If Sheila S. stands for the proposition that a court can make any order it wants regarding reunification services, then we disagree with Sheila S. We cannot agree that reunification services, which are, by definition, provided only during foster care
(§ 16501, subd. (h)) can be provided during a guardianship. We cannot agree that the specific statutes dictating the duration of reunification services and the conditions under which they can be obtained may be disregarded in favor of a general statute. (See Code Civ. Proc. § 1859.) Above all, we cannot agree that a court can, without specific statutory authority, turn back the clock to the reunification-services point when the legislative intent is stability and permanency for a child, and as quickly as possible.
The definition of reunification services, as noted above, makes them unavailable in this setting. They are “time-limited foster care services” provided to children who need “temporary foster care.” (§ 16501, subd. (h), italics added.) A.C. was not in foster care; that ship had sailed in December 2007. The carefully crafted reunification services program, including the mandatory time limits, must take precedence over section 388 .
Victoria claims that the court’s ruling was justified because “A.C. was frightened of her guardians” and was “terrified of [her] guardians, likely because they hit children with belts and spoons.” She also claims that the order was justified because Mrs. T. had interfered with A.C.’s visits. These assertions seriously misrepresent the record.
Victoria began accusing Mrs. T. of hitting A.C. in mid-2007, at the time of the contested periodic review. A.C. herself testified at the hearing on this review that Mrs. T. hit her on the hand. The court, however, did not find evidence of corporal punishment credible. The charges were investigated again in the fall of 2007, but the investigation was inconclusive because A.C. kept changing her story. Mrs. T. denied hitting A.C., and A.C. told her social worker she had not been hit. Victoria continued to accuse Mrs. T. of hitting A.C. These accusations were turned over to the Child Abuse Registry and to foster care licensing. Neither agency supported them. Victoria reiterated the charges in her withdrawn section 388 petition. The social worker then spoke to A.C. about them, and A.C. denied being hit or maltreated.
By the time Victoria made these accusations again in the most recent section 388 petition, they had been investigated several times and had never been substantiated. They fared no better in the court’s decision on the petition before us. Far from basing its ruling on A.C.’s “terror” of her guardian, the dependency court went out of its way to compliment the T.s “for their wonderful care of [A.C.] for so many years. ... They love her. They have taken loving care of her. And I recognize the legal guardians’ care.... [¶]... [P]lease let the legal guardians know... how much I and [SSA] appreciate their good care of [A.C.] over all of these years. Because I know they have loved her and cared for her.... And that is very, very recognized.” Had the court even suspected the T.s of abusing A.C., or that she was “terrified” of them, it would have been obliged to make inquiries and, if necessary, to remove her from their home immediately. The fact it did not do so, the fact that, on the contrary, it continued the guardianship and heaped praise on the T.s for their “loving care” of A.C., clearly demonstrates the court’s opinion of these accusations. Likewise, the court made no finding whatsoever that Mrs. T. had interfered with A.C.’s visits. Once again, the court made the opposite finding: “[Victoria] has been having very consistent and regular visitation with [A.C.] and very regular contact with [A.C.].” The court based its ruling entirely on the perceived necessity to maintain this contact between Victoria and A.C. – mainly, it must be said, to benefit Victoria. An argument that the court based its ruling on A.C.’s fear of her guardians or on interference with visitation finds no support whatsoever in this record.
The court went on to express “how much I appreciate the work that the family has done for [A.C.] and that the family continues to do for [A.C.], that they have really done so much for this little girl.”
The main issue Victoria’s petition placed before the court was whether A.C.’s best interests and a change in the circumstances existing between 2004 (when A.C. was detained) and 2010 would justify a change in A.C.’s placement. (In re Casey D., (1999)70 Cal.App.4th 38, 48.) A change in her placement would mean a termination of Mrs. T.’s guardianship. More specifically, the new circumstances must justify the termination of Mrs. T.’s guardianship now, not at some possible distant date in the future after Victoria had perhaps completed more reunification services. Changing circumstances, as opposed to changed circumstances, are not grounds for granting a section 388 petition. (In re Casey D., supra, 70 Cal.App.4th at p. 49; see also In re B.D. (2008) 159 Cal.App.4th 1218, 1230; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 608, 610.) The court was clearly, and correctly, not prepared to hand A.C. over to Victoria immediately.
Another issue that Victoria’s petition placed before the court was an increase in her visitation with A.C. The court could have ordered additional visitation between A.C. and Victoria. In fact, however, the court’s subsequent order, granted pursuant to stipulation, maintained the same visitation that A.C. had had before the hearing.
This alternative disposes of Victoria’s argument that the only two choices before the court were “do nothing or else dissolve the guardianship immediately.” The court could have ordered overnight visitation or visits spanning an entire weekend, while maintaining Mrs. T.’s guardianship.
The main obstacle to increased visitation appears to be A.C. herself, not Mrs. T. or SSA. Ever since she was old enough to make people listen to her, A.C. has steadfastly refused to visit Victoria more than once a week. The visitation order entered after the section 388 petition hearing, to which all parties stipulated, suggests A.C. has not changed her mind. She still wants to see Victoria only on Saturday afternoons from one to five. She clearly regards Victoria as someone who is fun to spend time with. But she lives with the T.s.
Victoria’s section 388 petition actually placed three alternatives before the court: terminate Mrs. T.’s guardianship, continue the guardianship with additional visitation, or deny the petition and continue the guardianship without change. The order the court made – continue the guardianship but offer Victoria more family reunification services – was not among the choices allowed by law. On remand, the court must rule on Victoria’s section 388 petition by selecting among the permitted options. It must then rule on SSA’s section 366.26 petition regarding A.C.’s adoption.
III. Denial of Efren’s Section 388 Petition and Request for Reunification Services
Efren has appealed only from the denial of his requests for visitation and reunification services. He did not request reunification services in his section 388 petition. His counsel mentioned reunification services in passing twice during the course of the hearing. As the hearing on his and Victoria’s section 388 petitions was winding up, his counsel made an oral request for reunification services for him. The court denied the request.
A. Visitation
The court properly found that Efren had failed to carry his burden to show that changed circumstances and A.C.’s best interests would justify modifying the existing orders to allow him “liberal visits” with A.C. Applying the Amber M. changed-circumstances test, we can see that Efren fails at every point. (See In re Amber M., supra, 103 Cal.App.4th at p. 685.)
With respect to the “seriousness of the problem leading to dependency, ” the problem in Efren’s case was that he had completely abandoned A.C. at a young age and had made only desultory efforts to contact her immediately afterwards. He was thereafter totally absent from her life. This is a very serious problem. The “reason for its continuation” was obviously that Efren had other priorities: a life with his girlfriend and her children among them. As for the “strength of the parent-child... bond, ” A.C. had no bond whatsoever with Efren. She was two years old when he abandoned her; she had been living with the T. family since she was three and had only the vaguest memory of Efren. By contrast, her bond with Mr. and Mrs. T., her caretakers, was very strong. By the time Efren surfaced, A.C. had “been in the system” for six of her nine years – all six of which had elapsed without any contact with her father. Finally, the “nature of the change in circumstances” was that SSA, through some extraordinary diligence, had located Efren – not that he had made any effort to contact his daughter. He could easily have found her; his own mother had been visiting A.C. for years along with Victoria. The reason the change did not occur sooner can be only that Efren simply did not take his role as A.C.’s father very seriously as she was growing up and needed a strong parental figure while Victoria was floundering. “Neither the child nor the law can wait for a parent to decide, at leisure, when he or she will accept in full the responsibilities of parenthood.” (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1164.)
Efren’s mother testified in June 2007 that she had been visiting A.C. and her brother on Saturdays and Sundays, along with Victoria, for two years.
Efren also did not present the dependency court with any practical plan for bringing about the requested “liberal visits.” Was he going to travel from Modesto to Orange County and back several times a week? Did he plan to have A.C. transported to Modesto and back? Was he going to move to Southern California in order to be near her? The lack of specific detail reveals that “liberal visits” was not a fully matured plan that Efren truly expected to carry out.
Efren argues SSA prevented him from having any visitation with A.C. and thus from building up a relationship with her, citing In re Hunter S. (2006) 142 Cal.App.4th 1497. But the circumstances were far different in Hunter S. Hunter’s mother had a close relationship with him for the first five years of his life, before he was removed from her care. (Id. at p. 1500.) She maintained this relationship even while she was in prison, through monthly letters to her son. (Id. at p. 1501.) When she got out, she completed her case plan and continued her efforts to remain in contact with her son, despite his refusal to see her or have anything at all to do with her. (Ibid.) Although there was a visitation order in place, it was never enforced, because Hunter refused to see his mother. (Id. at p. 1502.) In the meantime, she was besieging the court and family services with requests to see her son, in therapy or in any setting whatsoever, all to no avail. (Id. at pp. 1502-1503, 1505.) When she finally petitioned for relief under section 388, she had had only one visit with her son in approximately three years.
Efren made no such efforts to be part of A.C.’s life. He simply vanished when she was two years old, for at least six years. During that time his daughter had been removed from her home; family reunification services had been offered, received, and terminated; A.C. had formed strong bonds with a foster family; a guardianship had been established; and A.C. was being considered for adoption. After he reappeared in 2009, A.C.’s therapist counseled against permitting Efren to visit A.C. until he had completed his own therapy and until A.C.’s therapist had a better idea of what role he expected to play in A.C.’s life. Unlike his mother was to Hunter S., Efren was a total stranger to A.C. She did not even know his name. Her therapist was rightly wary of springing a “father” on A.C. after so many years without vetting him thoroughly first.
Moreover, the dependency court in this case did not leave the issue of visitation solely up to A.C. and her therapist. (See Hunter S., supra, 142 Cal.App.4th at p. 1505.) On the contrary, the court reviewed the visitation issue when it came up between the time it was ordered in September 2009 and the time Efren’s petition was denied in October 2010. The court determined that allowing Efren to visit A.C. before he had completed his therapy and had provided A.C.’s therapist with a report about it would not be in A.C.’s best interest. “[T]he court may appropriately rely upon an evaluation by treating therapists of the children’s emotional condition and evolving needs.” (In re Julie M. (1999) 69 Cal.App.4th 41, 51.) It is perfectly in order to seek input from A.C. and her therapist regarding Efren’s visitation, so long as the court itself makes the ultimate decision.
We should also note that the October 27, 2010, order set up a visit for Efren, with subsequent visits depending on the outcome of the first visit.
A court may not abdicate its oversight of the visitation process and vest the child, SSA, or the child’s therapist with absolute veto power over visits. (See In re S.H. (2003) 111 Cal.App.4th 310, 317-318.) But a court may impose conditions on the commencement of visitation, conditions such as the successful completion of therapy. (In re Chantal S. (1996) 13 Cal.4th 196, 213-214.) That is what happened here. The difficulties arose because Efren appeared so late in the process. These difficulties are, however, of his own making. His daughter, with whom he had had no contact for most of her life, was at the point of being adopted by her foster family. Under the circumstances, he would have to scramble to complete his therapy and to get himself re-introduced into A.C.’s life in a way that would benefit her more than a permanent home with people who had cared for her since she was three years old. As the court noted, no such scrambling took place.
Neither SSA nor the court prevented Efren from having a relationship with his daughter. He did that himself. Allowing him to wander back into her life could in no conceivable way have been in her best interests. The dependency court did not abuse its discretion is denying his request for liberal visits.
B. Reunification Services
Efren did not include reunification services in his section 388 petition, so this request was not strictly before the court. His counsel did, however, make an oral request for reunification services at the end of the section 388 petition hearings, a request the court denied. The request was properly denied for the same reason that it was improper to order them for Victoria: the time for reunification services had long passed.
Efren argues that the court should have granted him reunification services because he is a “fit parent” and because these services would be in A.C.’s best interest. The Legislature has dropped “fitness” as a standard, in favor of requiring courts to make a finding of detriment to the child. (In re Dakota H., supra, 132 Cal.App.4th at p. 224, fn. 3.) On January 23, 2006, the court found, by clear and convincing evidence, no substantial compliance on A.C.’s parents’ part with the reunification service plan and accordingly terminated reunification services. At the same time, the court found that returning A.C. to her parents “would create a substantial risk of detriment to [her] physical and emotional well being.” The court terminated reunification services on that date.
The reunification-services period has expired as to Efren, as it has for Victoria. A.C. has been in the system since she was three. She turned 10 in February 2010. She deserves, and needs, a permanent home, not another round of reunification services. Denying Efren reunification services did not constitute an abuse of discretion.
IV. The October 27 Order
A.C. has appealed from the order of October 27, 2010, which she characterized as “ordering family reunification services.” As discussed above, the October 27 order dealt only with visitation, not with reunification services. And, as A.C. points out, the visitation afforded Victoria by this order was exactly the same visitation she was receiving before the court ruled on her section 388 petition. It was, in fact, less than the court had authorized before the section 388 hearing. Moreover, the order was entered pursuant to stipulation by all parties, so A.C. cannot appeal from it. (See Grunsky v. Field (1905) 1 Cal.App. 623, 626.) The court did not abuse its discretion in making this order.
The court had authorized an additional weekend visit every other week, but, as noted above, A.C. resisted visiting Victoria more than once a week.
DISPOSITION
The order denying Efren’s section 388 petition is affirmed. The order granting Victoria’s section 388 petition is reversed. The court is directed to re-hear this petition and choose from among the three permitted alternatives as set forth in this opinion, assuming that Victoria wishes have the petition re-heard. The order of October 27, 2010, is affirmed. The order vacating SSA’s section 366.26 petition hearing is reversed, and the court is directed to hold this hearing as soon as possible, allowing for time to permit all parties to update or add to the evidence that was before the court at the hearing in 2010.
WE CONCUR: O’LEARY, J., MOORE, J.