Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court No. 97889 of Fresno County. Jane A. Cardoza, Judge.
Gino de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant.
Janelle E. Kelley, Interim County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Gomes, J., and Dawson, J.
OPINION
INTRODUCTION
Appellant, L.C., appeals from an order of the juvenile court denying her request, during a Welfare and Institutions Code section 366.3, subdivision (e) (subdivision (e)) review hearing, to modify the visitation order limiting her to supervised visitation with her daughters, A.H. and J.H. Because the juvenile court summarily denied appellant an opportunity to present evidence on this point, we will reverse the order of the juvenile court denying appellant an opportunity to raise the issue of visitation at the review hearing.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
Domestic violence and child endangerment by appellant in 2000 led to the underlying dependency proceedings. Appellant’s children, two girls, A.H. and J.H., and a boy, H.B., 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.
Appellant received reunification services, including psychiatric treatment, until February 2003 when the court terminated services and placed the children into long-term foster care. In August 2007, the court changed H.B.’s permanent plan from long-term foster care to legal guardianship. Soon thereafter and following an overnight visit with her children, appellant failed to return them to their respective homes and absconded with them to Stockton, California. Since then, the juvenile court ordered visits to occur on a supervised basis.
The most recent appeals from this case to this court are in case Nos. F053790, F054193, and F055095. Appellant has continued to seek to reunify with her children and/or to obtain unsupervised visitation.
There have been recent unsuccessful attempts by appellant to modify court orders through section 388 petitions. On December 18, 2007, the juvenile court denied appellant’s section 388 petition seeking unsupervised visits with her children even though appellant’s counsel asserted that the children expressed an interest in visiting their mother in an unsupervised setting. On December 19, 2007, the juvenile court received a new request from appellant to change its prior orders. On January 15, 2008, the juvenile court denied the petition by appellant to modify prior orders of the court to permit reunification and unsupervised visitation.
The document appears to have been prepared by appellant. It contains letters, certificates of completed courses, and a rambling statement by appellant.
The instant appeal arises in the context of a subdivision (e) status review hearing on January 23, 2008. The Department of Children and Family Services/Child Welfare Services (department) filed a status review report on January 8, 2008. A.H. and J.H. lived in a foster home. The children were both healthy. A.H. was in an independent living program. The children were having supervised visits with their mother. The visit on December 19, 2007, was stopped after 20 minutes because the children were upset that their mother did not return their clothes. Appellant returned their clothes the next day. On December 26, 2007, there was another visit that included the children’s brother. During that visit, everyone was happy and laughing. The girls kissed their mother goodbye.
A.H. is now 18 years old. J.H. is now 17 years old.
The social worker noted the parents had not ameliorated the conditions that initially prompted the court’s jurisdiction. There was still sufficient risk to the children to warrant out-of-home placement. The care provider for A.H. and J.H. was not willing to pursue a more permanent plan. The foster home, however, continued to meet the needs of both children, providing a safe and stable home environment. Continued dependency was necessary for both children. The social worker recommended supervised visitation for the children.
On January 23, 2008, appellant’s counsel requested a contested hearing on the issue of visitation. The court asked appellant’s counsel for an offer of proof. Counsel stated there was no showing of danger to the children, the children were older and would not be at risk, and even though appellant absconded with the children, she did not harm them. The court noted that appellant violated the order of the court concerning visitation, the children were happy to see their mother in a supervised setting, and denied appellant’s motion for a contested hearing.
DISCUSSION
Appellant relies primarily on the case of In re Kelly D. (2000) 82 Cal.App.4th 433 (Kelly D.) to support her position. In Kelly D., in a report prepared for a status review hearing, the social worker mentioned problems with the behavior of the minors after visitation with the father, but did not recommend a change in the frequency of the minors’ visitation. (Id. at pp. 435-436.)
At the hearing, the department proposed a reduction in the frequency of visitation between the father and the children. Counsel for the minors opposed the proposed reduction and asked for a contested hearing on the issue. The juvenile court found that the father did not have the right to a contested hearing on the issue and reduced the frequency of visitation. (Kelly D., supra, 82 Cal.App.4th at p. 436.)
The father appealed, claiming he did not receive proper notice because the department failed to inform him of its intention to seek a reduction in visitation and that he was entitled to a contested hearing on the matter. (Kelly D., supra, 82 Cal.App.4th at pp. 436-437.) The appellate court found that the right to participate in a section 366.3 hearing confers on the parent the right to challenge or contest a proposed order. The court concluded that the juvenile court erred in failing to comply with the father’s request to contest the reduction of his visitation with his children. (Kelly D., supra, 82 Cal.App.4th at pp. 439-440.)
Kelly D. noted that review hearings are a critical aspect of California’s dependency system. (Kelly D., supra, 82 Cal.App.4th at p. 439.) The purpose of the post-permanency plan review hearing is for the juvenile court to determine the progress being made to provide a permanent home for the child, including the continuing necessity for and appropriateness of the child’s placement. (§ 366.3, subd. (e).)
Subdivision (e) expressly entitles the parents of a minor in long-term foster care to notice of and participation in the post-permanency plan review hearing. Notice of a subdivision (e) hearing must include notice to the parent of any proposed departmental modifications to existing juvenile court orders. To “‘participate’” in the hearing connotes involvement as a party to the proceedings, one essential aspect of which is the reasonable expectation that parents can challenge departmental proposals and proposed court modifications. (Kelly D., supra, 82 Cal.App.4th at p. 438.) To that end, parents have a right to testify and otherwise submit evidence, cross-examine adverse witnesses and argue their case. (Id. at p. 440.) Furthermore, the juvenile court may not deny a party the right to a contested review hearing, even if no offer of proof is tendered. (Id. at p. 439, fn. 4.)
We recognize that, at a post-permanency review hearing, the child is in a placement other than with his or her parent(s). However, that does not mean that such placement is permanent or that the parent is forever foreclosed from reunifying with his or her child. On the contrary, subdivision (e) allows the parent the opportunity to demonstrate that additional efforts at reunification will promote the best interests of the child. If the parent makes such a showing, the juvenile court may order further reunification services for the parent. (§ 366.3, subd. (e).)
Appellant made it clear at the review hearing that she wanted to challenge the court’s prior, and the department’s proposed, visitation order. We recognize that appellant had attempted to do the same thing with two prior section 388 petitions. The most recent of these petitions, however, was a petition apparently filed by appellant and not her attorney. Appellant was not required to make an offer of proof at the subdivision (e) hearing as demanded by the trial court.
We reject respondent’s argument that because the court was not changing any past orders, appellant is foreclosed from challenging its orders from the section 366.3 hearing. Clearly the court was reinstating its past orders, including its order on visitation.
At the January 23, 2008, hearing, appellant had no opportunity to testify, call witnesses, or to thoroughly argue her case. Given the fact that her children are older, A.H. is currently an adult, appellant should have been permitted the opportunity to call them as witnesses should she choose to do so. Even if the likelihood of success in appellant’s challenge to the order was low, she was still entitled to present her side of the case. Because the trial court summarily rejected her attempt to participate in the hearing, we will grant relief.
DISPOSITION
The trial court’s denial of appellant’s request to challenge the proposed visitation order is reversed. The juvenile court is directed to conduct a contested review hearing pursuant to subdivision (e). This opinion is final forthwith as to this court.