Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Jane Cardoza, Judge. Super. Ct. No. 97889-1,2,3
Gino de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant.
Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Vartabedian, A.P.J., Harris, J., and Wiseman, J.
L.C. appeals from August 2007 juvenile court orders denying her modification petition (Welf. & Inst. Code, § 388) and selecting legal guardianship as a permanent plan for the youngest of her three children. She contends the court denied her a meaningful hearing by not compelling her children to testify and abused its discretion by denying her request to return the children to her care. On review, we will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
Domestic violence and child endangerment by appellant in 2000 led to the underlying dependency proceedings. Appellant’s children, two girls and a boy, then ranged in age from ten to six years old. The girls were placed together in one foster home while their younger brother was placed in a separate foster home. Appellant received reunification services, including outpatient psychiatric treatment, until February 2003, when the court terminated services and ordered the children placed in long-term foster care.
Over the ensuing years, the children fared well in foster care but their relationship with appellant grew strained because of appellant’s increasingly erratic and confrontational behavior. Nevertheless, appellant attempted several times without success to either regain custody of her children or reinstate reunification services. Over the years, visitation varied from supervised to unsupervised depending on appellant’s circumstances.
By early 2007, unsupervised visitation resumed and the foster parents of appellant’s son, 12-year-old H.B., sought to become his legal guardians. H.B. was also in agreement with his foster parents’ request. At a January 2007 status review hearing, appellant, who was present and represented by counsel, generally objected to the proposed change in H.B.’s permanent plan but did not offer any evidence in opposition. Upon the hearing’s conclusion, the court continued long-term placement for appellant’s daughters and set a section 366.26 hearing to consider placing H.B. in legal guardianship. The court also authorized liberal visits between appellant and her daughters.
Our summary of the proceedings to this point comes from our opinion upholding the setting order in L.C. v. Superior Court (F052211), filed in April 2007.
The department subsequently prepared a report for the court in which it recommended the court select legal guardianship as a new permanent plan for H.B.
On the figurative eve of the section 366.26 hearing, appellant submitted yet another section 388 petition to regain custody of all three of her children. She alleged their visits were good, the children were happy, and the girls were living in her home most of the time. Appellant also alleged an order returning custody to her would be better for the children because they needed to be home with her as their mother, they were not being properly cared for in foster care, her daughters had been living with her the previous two months, and there would be no detriment.
Because appellant contested the department’s legal guardianship recommendation as well and the department wished to respond to appellant’s custody request, the court continued both the section 366.26 and section 388 hearings. Soon thereafter, appellant asserted her right to cross-examine H.B. “as to the alleged incidents and his wanting to live with his mother[.]” Initially, the court deferred ruling on whether to compel H.B. to testify. The parties agreed, however, in July 2007 the children could testify and their testimony would be out of appellant’s presence.
The court eventually conducted its hearing on the department’s legal guardianship recommendation for H.B. (§ 366.26) and appellant’s section 388 petition as well as its status review of the older girls’ dependency in late August 2007. In the interim, the department prepared and submitted four addendum reports in opposition to appellant’s section 388 petition and its status review report as to the older girls.
In its first addendum report dated “6/19/07,” the department described a series of complaints from school officials at the high schools the girls attended regarding appellant’s disruptive behavior on campus. Over the preceding two months, appellant posed a constant threat to school staff. School officials were considering seeking a new restraining order on appellant. Appellant’s behavior also both embarrassed and troubled her daughters. In addition, daughter A. ran away from appellant’s home during a June liberal visit. When A. returned to her aunt’s home, A. told her social worker she no longer wanted to stay with appellant for liberal visits. Both daughters reported they could not deal with the tension their mother caused. The department included no additional information in this report regarding H.B. Meanwhile, the parties agreed in July 2007 to liberal visits no longer than three consecutive days pending the evidentiary hearing.
They previously obtained such an order; however, it expired in 2005.
In late July, the department submitted its status review report on appellant’s daughters. Each girl was doing well in their aunt’s care. 17-year-old A. told her social worker she did not want to be placed back in appellant’s care. A. preferred to continue liberal visits with her mother. Similarly, 16-year-old J. did not want to be placed back in appellant’s care and liked the liberal visits. Each teenager felt they could discuss their feelings with their aunt more than they could with appellant.
With regard to appellant, the department reported she tested positive for opiates in February 2007 and was “N/S” in both March and May. In addition, appellant had not ameliorated the conditions that initially prompted the court’s jurisdiction. According to the department, she had not been able to demonstrate her ability to appropriately parent her children, understand age appropriate expectations or accept statements and/or expressed emotions from her children regarding incidents during their dependency.
We infer from the context that “N/S” means no show.
The department submitted two additional addendum reports dated “8/22/07,” one related to the girls and the other related to H.B. The addendum as to the girls addressed two recent incidents. First, on a Sunday in late July 2007, appellant refused to transport her daughters to church. She stated it was not her responsibility. The girls wanted to attend church in order to participate in the choir. A few weeks later, appellant damaged her sister’s car by using a broom to “bust out” the car windows when the aunt arrived to pick up the girls. The addendum in H.B.’s case continued to recommend legal guardianship for him. It also characterized appellant as uncooperative and verbally abusive when she did not receive visitation with H.B. at the time she wanted it. Appellant had a habit of requesting weekend visits on Friday afternoons rather than making her request earlier in the week before H.B. had other plans. In the department’s view, appellant attempted to wear down social workers in an effort “to get her way.” On August 21, 2007, for instance, appellant called the department over 40 times and was argumentative.
On August 22, 2007, the court called the case for hearing. Having received the latest reports and done some further investigation, appellant’s counsel announced “at this time, we would be submitting.” The other parties submitted as well. As the court completed its findings to select legal guardianship as the new permanent plan for H.B., appellant interrupted the court. She voiced her disagreement with her attorney’s submission. In response to the court’s questions, appellant admitted she had an opportunity to speak with her attorney about the children’s cases, the different reports and the basis for those reports. Her attorney acknowledged appellant wished to testify but he had advised against it based on his investigation.
The court in turn offered appellant an opportunity to make a statement at which point she contradicted herself and claimed she had not reviewed the reports. The court took a recess for appellant to review the documents. Once the court recalled the case, appellant’s trial counsel reported “my client for whatever reason wants a continuance to look at the reports.” The attorney added he went over all the reports and that appellant “knew exactly what was going on in the cases, but she’s now saying she hasn’t seen these reports.” The court confirmed that appellant currently had all the reports. It also expressed a willingness to once more continue the hearing.
When appellant once again spoke out of turn, the court advised her:
“[Appellant], I’m ready to hear it today. And so, I’m just being nice. So we can pick a day. I’m going to give you a reasonable period of time to read the reports, and so I’m going to check with [appellant’s counsel] as to his availability. We’ve had a busy day. I believe the children have been here, and frankly, given the reports, I don’t see a need to have the children here at the next court date.”
According to the court’s minute order, all three children were present for the hearing; they waited in their attorney’s office.
No one expressed any disagreement with the court’s observation about the children and their presence. Once the parties and the court selected a continued hearing date of August 31st, the children’s counsel asked “And, Your Honor, the children need not be made available as witnesses that day?” The court replied “Correct.” Once again, no one questioned the court on this point.
On the 31st, the department submitted one final addendum report for A. and J. In it, a new social worker to the girls’ case reported that by June 2007 they had been primarily living with appellant. Their maternal aunt had moved and the department did not approve her new residence for placement purposes. According to this latest report, appellant took care of their daily needs. In the social worker’s words, the girls had been “indecisive” over the summer regarding where and with whom they wanted to live. In late July, they did not want to live in their mother’s home. Days later, as the department prepared to temporarily place them at the Craycroft Center, the girls stated they wanted to stay with their mother. Later still, J. clarified she would rather stay with her mother than go to foster care. A. in the meantime wanted to be placed with a mentor who had been one of her former social worker’s. The new social worker also seemed to excuse appellant’s confrontations with her sister, the girls’ schools, and the department. While she did not recommend a return of custody, the new social worker did recommend “extended visits” between appellant and her daughters.
According to Fresno County Superior Court’s local rules related to the juvenile court, “extended visits” means visits which last beyond 13 consecutive days without constituting a placement. (Fresno County Sup. Ct., Local Rules of Court, rule 6.4.10(C)(4).)
At the August 31st hearing, the court began by considering guardianship recommendation for H.B. The other parties submitted the matter on the department’s various reports while appellant objected to the legal guardianship recommendation for H.B. and asked to take the witness stand.
She testified her visits with H.B. were “normally . . . really good visits.” If he were returned to her home, she believed she would provide him a safe home and proper care. According to appellant, H.B. also asked her why he was not living with her and when would he come home.
Following appellant’s testimony, the court heard argument. In particular, the children’s attorney, who supported the legal guardianship recommendation, represented H.B. told him (counsel) that he (H.B.) felt better living with his foster family of many years. They were not a cause for embarrassment for him. H.B. felt as though they were his extended family.
Once the matter was submitted, the court began by noting it had monitored the case closely and H.B. clearly stated where he wished to live. Again, appellant interrupted the court’s ruling. “Why can’t he testify? This is only hearsay, and a lot of stuff on this report is not true.” The court continued with its ruling and selected legal guardianship as the appropriate permanent plan for H.B.
No testimony was offered with regard to A. and J. The parties submitted on the department’s various reports. Appellant’s counsel relied heavily on the latest addendum report from the new social worker that appellant was providing for the girls’ daily needs. The children’s attorney on the other hand summarized the department’s previous reports and recommendations while characterizing the latest report and change in recommendation as “simple capitulation to the pressure that mother brings to bear on the department.”
“And we’ve actually been there before with the department where the mother has come there and been disruptive and made threats. There was a period of time after mother threatened to blow the Children and Family Services building there was a restraining order for a long time. When the case gets transferred to somebody new, they try to get rid of the problem with mother by sacrificing the children. And that’s what they’re doing in this situation here.
In counsel’s view, it was no wonder the girls had asked earlier that month to live with appellant. The alternative, Craycroft Center, after being
“in the system over seven years now [was] like going to juvenile hall for them. They don’t have the access to their friends, whether or not they go to their own school.”
The girls did not want to go there. According to their attorney, what the girls wanted was to be able to resume living with their aunt or in mentor homes. As had her sister, J. had identified a mentor with whom she wished to live but asked counsel that the mentor’s name and number not be provided to appellant as J. did not want her mother to create problems for that person.
Upon submission, the court announced it agreed with the children’s counsel having reviewed the department’s various reports. “It depends on who the social worker is . . . .” The court conducted its status review and found continued foster care remained appropriate and the extent of appellant’s progress towards alleviating or mitigating the causes necessitating foster care placement was minimal. As for appellant’s section 388 petition, the court denied it. The court specified there was no significant change of circumstances nor showing that it would be in the children’s best interests to change the court’s order.
DISCUSSION
Appellant contends the court denied her a meaningful evidentiary hearing on her section 388 petition because her children did not testify. She relies on her earlier request for and the court’s order that the children be present to testify. She adds she did not waive the children’s testimony when the court subsequently directed that the children need not be brought to court for the August 31 hearing. According to appellant, she intended to establish by their testimony that the children were willing to return to her custody. Thus, in her view, the court’s error was prejudicial. Alternatively, she contends the court abused its discretion in denying her section 388 petition. Having reviewed the record, we disagree with each of appellant’s claims of error.
The children were present and available to testify at the August 22nd hearing. However, they were never called. Instead, appellant’s counsel, after conducting further investigation, elected to submit the matter on the record currently before the court. Notably, at this point, appellant, who clearly understood her attorney’s meaning, did not object nor did she ask that the court hear from the children.
It was only after the court ruled against her by granting H.B. legal guardianship that appellant balked over her attorney’s earlier submission and claimed for the first time she had not read the department’s reports. The record from this point on supports more than a reasonable inference that appellant resorted to gamesmanship to avoid the denial of her section 388 petition and the granting of the legal guardianship in H.B.’s case. The court’s remarks, as quoted above, strongly suggest it drew that inference and thus proposed not requiring the children’s presence on the continued hearing date. If anyone disagreed with the court’s proposal, it was incumbent on the party at that point to voice opposition and ask the court to exercise its discretion and hear directly from the children. (See In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.) Having instead acquiesced to the court’s proposal, appellant has forfeited her claim of error on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293.)
Alternatively, while appellant complains about the lack of a meaningful hearing, we observe that had the court summarily denied appellant any hearing on her petition, we could have affirmed such a ruling. This is because her petition was woefully inadequate with regard to alleged changed circumstances. (In re Edward H. (1996) 43 Cal.App.4th 584, 593.)
Her allegation that her visits with the children were good, they were happy, and the girls were living in her home most of the time were not changed circumstances to warrant a return of custody. Appellant failed to allege or make any showing that she had ever completed the requirements required for reunification or otherwise made progress towards alleviating or mitigating the causes necessitating the children’s out of home placement. Indeed, we note the court found and appellant does not dispute on appeal that the extent of her progress was minimal. That the girls were primarily living with her by June 2007 as a result of the aunt’s residence change did not amount to sufficient changed circumstances warranting an order returning custody of her daughters, much less all three children.
In any event, we note there was also the department’s evidence that appellant’s circumstances had not changed. In the first half of 2007, she tested positive for opiates and failed to appear for testing on two other occasions. By her conduct over the summer of 2007, appellant remained a disruptive and uncooperative force in her children’s lives. Also, while appellant complains at length about her children not testifying, we observe that when she had the opportunity to testify, appellant did not refute the department’s reports regarding her recent conduct in connection with her children. Thus, we conclude the court did not err in denying appellant’s section 388 petition.
DISPOSITION
The orders denying appellant’s modification petition (§ 388) and selecting legal guardianship for her son are affirmed.