Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Bradley O. Snell, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.), Super. Ct. No. SWJ007051
Teri A. Kanefield, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
Leslie A. Barry, under appointment by the Court of Appeal, for Minors.
RICHLI, Acting P.J.
S.M. (Mother) is the mother of now-18-year-old A.N., 12-year-old B.N., and five year-old A.R. On appeal, Mother contends (1) the juvenile court abused its discretion in denying her petition for modification (Welf. & Inst. Code, § 388); and (2) the juvenile court abused its discretion in terminating jurisdiction after establishing a legal guardianship as the permanent plan. We agree that the court erred in terminating jurisdiction but reject the remaining contention.
She is also mother to an older sibling not part of this dependency. The alleged fathers of these children are also not parties to this appeal and had been incarcerated during these proceedings.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
I
FACTUAL AND PROCEDURAL BACKGROUND
The children came to the attention of the Riverside County Department of Public Social Services (DPSS) in December 2006 when numerous referrals were received alleging that the children had been left in the care of their 82-year-old maternal grandmother, who was incapable of caring for the children or her home, when Mother was arrested for being under the influence of heroin and was incarcerated. Mother had prior referrals regarding the children’s safety and care and had previously been offered family maintenance services in Orange County in 2001. She also had a long-standing substance abuse problem and incarcerations related to her drug problem. Due to these problems, Mother had permitted the grandmother to raise the children for the most part. The children had confirmed Mother’s arrests and claimed they felt comfortable in the grandmother’s home.
When the social worker visited the grandmother’s home three times, she found the home to be unsanitary, with stove burners being used to heat the house and an inadequate food supply. DPSS provided a safety plan, but the grandmother did not appear to understand what was required and did not follow the plan. When the social worker found marijuana belonging to the children’s adult sibling, the children were removed from the grandmother’s home.
On February 9, 2007, a petition pursuant to section 300, subdivisions (b) and (g) was filed on behalf of the children. The children were subsequently detained from both Mother and the maternal grandmother and placed together in a foster home.
Following several continuances, the jurisdictional/dispositional hearing was held on June 27, 2007. The allegations in the petition were found true as amended, and Mother was provided with reunification services. The children remained placed together in a foster home and reportedly liked this home.
Mother was expected to be released from prison on December 26, 2007, and was interested in reunifying with the children. She initially was complying with her case plan, and DPSS recommended that Mother be provided with 12 additional months of services. Mother and the children communicated via correspondence while in prison. Mother’s reunification services were continued.
Mother’s participation in her case plan diminished, however, after her release from prison on December 29, 2007. After her release, she resided with the grandmother and repeatedly failed to participate in random drug testing; she also failed to complete a substance abuse assessment for a program to which she was referred by the social worker. In addition, she had not obtained any employment, and on March 10, 2008, her drug test result showed she had used opiates. She also admitted that while participating in an outpatient substance abuse program she had used heroin on one occasion in May 2008 and was eventually discharged from the program in July 2008 for multiple absences. Mother had also only attended two sessions of counseling. Accordingly, by the time of the 18-month review hearing, DPSS recommended terminating Mother’s services and setting a section 366.26 hearing.
After her release from prison, Mother and the children had telephone contact, and DPSS was actively arranging supervised visits. Mother and the children were participating in those visits, and the visits appeared to be going well.
A.N. had adjusted to foster care and was participating in the Independent Living Skills program. She missed her family and friends, however, and counseling was being sought to address her feelings of sadness. After four sessions of therapy, it was determined that A.N. did not meet the “severity criteria,” and A.N. declined any further therapy sessions. A.N. had been honored for her academic achievements by the Perris Chamber of Commerce and was thriving.
B.N. had also adjusted to foster care but displayed distrust of adults and was participating in counseling for issues related to abandonment and loss. A.N. and B.N. looked forward to visiting Mother, and both had reported that they wanted to return to their home.
A.R. had also adjusted to foster care and appeared to be attached to his caregiver. He had made developmental and educational accomplishments and was thriving in his foster home. The caregiver reported that all three children were very good children; she enjoyed caring for them and did not have any problems with them.
The 18-month review hearing was held on September 3, 2008. The juvenile court found that Mother had made inadequate progress in her reunification services and terminated them. The section 366.26 hearing was set for December 18, 2008.
DPSS recommended the children’s permanency plan be legal guardianship. The foster care parents had confirmed that they were interested in being appointed legal guardians and might eventually request adoption of the younger two children. A.N. reported that she felt safe in the foster home and that she would like her siblings to remain in the home in the event they could not return to Mother’s custody. A.N. had completed high school as well as a Transitional Independent Living Plan. B.N. also reported that she would like to remain in her foster home and have the caregivers appointed as her legal guardians. B.N. was in the fifth grade and still required therapy to address her difficulty in trusting adults. A.R. continued to be attached to his caregivers and was doing well in kindergarten.
In September 2008, Mother had enrolled in an inpatient substance abuse program and was participating in bimonthly supervised visits with the children. At one visit, Mother had asked the children for their allowance money, claiming there was not enough food at her inpatient facility.
On December 18, 2008, Mother filed a section 388 petition to change the court’s order, requesting that services be reinstated or the children be returned to her care on family maintenance services. In support, Mother stated that she had completed the 60 day inpatient drug program and was participating in an after-care substance abuse program. She further claimed that she was looking for employment and housing.
The section 366.26 hearing was held on December 18, 2008. At that time, the court also heard Mother’s section 388 petition. After acknowledging that Mother was making changes in her life and had been sober for over 90 days and that the children desired to return to her care, the court denied the petition, noting that it could not ignore the fact that Mother had a 25-year addiction to heroin. The court found that Mother’s circumstances were changing, but they had not changed for the purposes of satisfying the requirements of section 388.
Thereafter, the court found that terminating parental rights would be detrimental to the children and that an exception to adoption applied in this case. Therefore, the children’s foster parents were appointed as the children’s legal guardians. The matter was referred to mediation to determine visitation, and the dependency was terminated.
II
DISCUSSION
A. Section 388 Petition
Mother contends the juvenile court erred by denying her section 388 petition.
“A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new or changed circumstances exist, and (2) the proposed change would promote the best interest of the child. [Citation.] The parent bears the burden to show both ‘“a legitimate change of circumstances”’ and that undoing the prior order would be in the best interest of the child. [Citation.] The petition is addressed to the sound discretion of the juvenile court, and its decision will not be overturned on appeal in the absence of a clear abuse of discretion. [Citation.]” (In re S.J. (2008) 167 Cal.App.4th 953, 959-960 [Fourth Dist., Div. Two].) “... ‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” [ Citation.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319, original quotation marks corrected.)
Here, the juvenile court could reasonably find that there were no material changed circumstances. “‘A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent... might be able to reunify at some future point, does not promote stability for the child or the child’s best interests. [Citation.] “‘[C]hildhood does not wait for the parent to become adequate.’”’ [Citation.]” (In re Mary G. (2007) 151 Cal.App.4th 184, 206.)
The major problems that led to the dependency were Mother’s drug abuse and her multiple incarcerations as a result of her drug use. She had a 25-year history of abusing heroin, and, as noted by her attorney, “this was essentially her first commitment to sobriety.” “[R]elapses are all too common for a recovering drug user. ‘It is the nature of addiction that one must be “clean” for a much longer period than 120 days to show real reform.’ [Citation.]” (In re Cliffton B. (2000) 81 Cal.App.4th 415, 423-424.) Here, Mother had only been clean for about 90 days. Moreover, she had been in an inpatient drug treatment program until about 40 days before the hearing. This was not enough time to show that she could stay drug free on her own.
A little over three months of sobriety, in light of a 25-year heroin addiction, demonstrated a mere changing circumstance. This short period of progress is not enough to demonstrate that Mother had truly overcome her substance abuse to the extent that she had the ability to maintain her sobriety over a substantial period of time or while dealing with the responsibilities of parenthood. It was Mother’s burden to show a complete reformation; to show merely that she had made progress toward such a reformation is not enough. (See In re Kimberly F. (1997) 56 Cal.App.4th 519, 528.) Mother still had not obtained employment and was residing with her mother. Mother’s attempts to distinguish her circumstances from that of the parent in In re Mary G., supra, 151 Cal.App.4th 184, In re Cliffton B., supra, 81 Cal.App.4th 415, and In re C.J.W. (2007) 157 Cal.App.4th 1075 are unavailing.
The court’s finding that Mother had demonstrated no more than “changing” circumstances rather than a completed transformation is therefore supported by substantial evidence. (See, e.g., In re C.J.W., supra, 157 Cal.App.4th 1075, 1081; In re Casey D. (1999) 70 Cal.App.4th 38, 47-49; In re Kimberly F., supra, 56 Cal.App.4th at p. 531, fn. 9.) Consequently, we see no abuse of discretion.
Separately and alternatively, the juvenile court could also reasonably find that granting the petition would not be in the best interest of the children. “Once services have been terminated, the juvenile court’s focus shifts from family reunification to the child’s permanent placement and well-being, and the burden accordingly shifts to the parent to show that a termination of parental rights is not in the child’s best interests. [Citations.]” (In re Nolan W. (2009) 45 Cal.4th 1217, 1235.) Though the children had stated that they wanted to return to Mother’s care and though the court did not terminate parental rights, the record also shows that the children wanted to remain in the foster parents’ home and that they were bonded to them, especially the youngest child. In addition, there was evidence that the children were thriving with their foster parents. In sum, the juvenile court could reasonably conclude that the children’s best interest lay in the permanence they would gain from legal guardianship, rather than in delaying that permanence in the sentimental hope that the children could be reunited with a mother who for the very first time had maintained sobriety for over three months after a 25-year battle with heroin addiction.
For these reasons, the juvenile court did not err by denying Mother’s section 388 petition.
B. Termination of Jurisdiction
Mother next contends the juvenile court erred when it terminated jurisdiction after establishing the legal guardianship. Minors’ counsel agrees, arguing the circumstances of this case necessitated continuing supervision. County Counsel responds that Mother waived this issue and, in the alternative, argues Mother’s contention lacks merit.
Preliminarily, we find that Mother did not waive this issue. At the section 366.26 hearing, when asked if she had any questions, Mother stated, “... I know this is a legal guardianship. Yeah. Okay. I get along with the foster lady..., but since she will have legal guardianship, she might stop my visits just because — ” Mother was then cut off from continuing her statement by her attorney. After Mother’s attorney conferred with Mother, Mother’s attorney asserted, “Your Honor, I’ve answered mom’s question and explained about the mediation process.” We believe Mother was attempting to bring to the court’s attention that if supervision was withdrawn there would be no guarantee that her visits would continue. Mother’s statement was sufficient to put the court and all parties on notice that Mother did not agree with the orders. (See In re S.B. (2004) 32 Cal.4th 1287, 1293.)
Separately and alternatively, we will exercise our discretion to address this issue as it presents an important legal question. In In re K.D. (2004) 124 Cal.App.4th 1013, 1018-1019 (K.D.), a juvenile court ordered legal guardianship and terminated jurisdiction for an adoptable child after finding it was in the child’s best interest to maintain the parental bond with his mother (former § 366.26, subd. (c)(1)(A)). (K.D., at pp. 1017-1018.) It also ordered at least twice-a-year supervised visits. (Id. at p. 1018.) On appeal, the mother argued the juvenile court should have maintained jurisdiction. Even though she waived her argument by failing to raise it in the juvenile court, the appellate court exercised its discretion to consider the issue because it concluded the order terminating dependency jurisdiction was “fatally inconsistent” with the juvenile court’s best-interest finding and visitation order. (Id. at pp. 1018-1019.) The K.D. court proceeded to hold that because the juvenile court found it was in the child’s best interest to preserve his bond with the mother, it was obligated to retain dependency jurisdiction and hold periodic review hearings to oversee visitation. (Id. at p. 1019.)
As minors’ counsel points out, this case presents an even more compelling situation to forego application of the forfeiture rule. Besides the orders being “fatally inconsistent,” the court here, unlike in K.D., did not make any specific visitation orders and terminated dependency before the letters of guardianship had been issued.
Accordingly, we will address Mother’s claim on its merit. In determining whether the court properly terminated jurisdiction, “the issue to be addressed is the best interest of the child.” (In re Robert L. (1998) 68 Cal.App.4th 789, 793.) “[E]xercise of jurisdiction must be based upon existing and reasonably foreseeable future harm to the welfare of the child. [Citation].” (Id. at p. 794, citing In re Melissa H. (1974) 38 Cal.App.3d 173, 175.) Because the decision to terminate jurisdiction falls within the sound discretion of the juvenile court, we reverse only where the hearing officer has “exceeded the bounds of reason.” (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
Here, we find the juvenile court erred for several reasons. First, it did not have the power to terminate jurisdiction when it did. Section 366.3 requires the juvenile court to retain dependency jurisdiction until such time as the legal guardianship is established. The court here selected legal guardianship and terminated dependency on December 18, 2008. However, letters of guardianship did not issue until December 30, 2008.
Second, the juvenile court did not comply with its statutory duty in regard to visitation. It is well established that it is the juvenile court’s responsibility to define the right to visitation. This means the juvenile court must make an order granting or denying visitation. In the event it orders visitation, it may not grant a third party complete and unfettered discretion as to whether or not visitation may occur, and to what extent. (In re Shawna M. (1993) 19 Cal.App.4th 1686, 1690; In re Robert A. (1992) 4 Cal.App.4th 174, 186-189; In re Elizabeth M. (1991) 232 Cal.App.3d 553, 570; In re Jennifer G. (1990) 221 Cal.App.3d 752, 757-758; see also In re Candida S. (1992) 7 Cal.App.4th 1240, 1253-1254; In re Kristin W. (1990) 222 Cal.App.3d 234, 256.) This does not mean, however, that “the juvenile court must specify all the details of visitation.” (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1373-1374.) In the present matter, the juvenile court’s order was simply for “reasonable visitation” and referred the matter to mediation to resolve the specific details. The juvenile court’s order, albeit not authorizing the guardian to determine whether or not Mother had the right to visitation, “gives [the guardian or mediator] no guidance as to when, how often, and under what circumstances visitation is to occur.” (Shawna M., at p. 1690; see also Jennifer G., at p. 757.) Accordingly, because there was no appropriate order defining visitation, the termination of dependency was inappropriate.
We acknowledge that Mother has not challenged the visitation order on appeal. On remand, the juvenile court should make an appropriate visitation order.
Finally, like in K.D., this case presents circumstances whereby continuing supervision by the juvenile court is necessary. In K.D., our colleagues in Division One reversed an order terminating jurisdiction after the establishment of a legal guardianship. There, the guardianship was established because of the finding that the mother and child had a beneficial parent-child relationship. (K.D., supra, 128 Cal.App.4th at p. 1017.) The juvenile court also made specific orders for visitation that were more liberal than the guardian had agreed to accommodate and then terminated jurisdiction. (Id. at pp. 1018-1019.) The reviewing court found that terminating jurisdiction was “fatally inconsistent” with the juvenile court’s finding of a parent-child bond and its order for visits. (Ibid.) The court explained, “Because the [juvenile] court found it was in K.D.’s best interest to preserve his bond with the mother, it had an obligation to retain dependency jurisdiction and hold periodic review hearings to oversee visitation. The mother has shown an abuse of the court’s discretion in terminating dependency jurisdiction.” (Ibid.)
Like in K.D., the juvenile court selected a permanent plan of legal guardianship here because it believed the children had significant beneficial relationships with Mother. All three children consistently stated their desire to return home to Mother, and Mother was in the progress of changing her circumstances. Although the legal guardians had expressed that they were not interested in adopting all three children at the time of the section 366.26 hearing, they had expressed a desire to someday “upgrade” to adoption of B.N. and A.R. In addition, though Mother and the guardians appeared to be nonhostile with each other, the guardians had never made any commitment to assuring that the children’s visits with Mother would continue.
In re Twighla T. (1992) 4 Cal.App.4th 799, a case relied upon by County Counsel, is distinguishable from the present matter. In that case, the juvenile court granted guardianship over two children to a paternal aunt and terminated its dependency jurisdiction. On appeal, the mother argued the juvenile court should have retained dependency jurisdiction, claiming the aunt was hostile to her visitation with the children. However, there was also evidence that the aunt cooperated in arranging visits. (Id. at p. 804.) The appellate court affirmed the juvenile court’s orders, finding substantial evidence supported a finding there would not be serious problems with visitation. It noted that, if problems were to develop, the mother would have access to the court through the court’s jurisdiction over the guardianship itself. (Id. at p. 806.) Here, unlike in Twighla T., the guardians are not relatives and are potentially interested in adopting B.N. and A.R. They are also willing to allow Mother to visits only under their (albeit reasonable) rules.
Based on the foregoing, there is need here for continuing dependency jurisdiction. The juvenile court thus erred in terminating that jurisdiction.
III
DISPOSITION
The order terminating dependency jurisdiction is reversed. In all other respects, the judgment is affirmed.
We concur: GAUT, J., KING, J.