Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SCSCJVSQ015001902
ROBIE, J.
M. T., mother of 13-year-old minor N. T., appeals from orders selecting guardianship as a permanent plan for the minor and terminating dependency jurisdiction. (Welf. & Inst. Code, §§ 366.26, 395.) Appellant contends the court erred in terminating dependency jurisdiction because the order was inconsistent with the concurrent visitation order which required supervision. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTS
The minor was first made a dependent child in 2000. Thereafter, several petitions were filed which led at various times to ordering services and returning the minor to appellant, culminating in a petition filed in August 2001 which is the basis for the current dependency proceedings. Appellant submitted to jurisdiction, waived reunification services, and the minor was placed in foster care. Over time, circumstances changed and the court ordered reunification services for appellant. However, appellant failed to reunify with the minor and the court ordered a permanent plan of long-term foster care in March 2004. Four years later, the court set a selection and implementation hearing to consider a permanent plan of guardianship for the minor.
The social worker’s August 2008 report for the hearing stated the minor had been residing in the same foster home for 18 months. He was doing well in the home but had recently shown increased anxiety, apparently associated with the start of a new school year. The school had requested permission to do psychological testing to assist in providing him educational services. He continued to take various medications for hyperactivity and mood stabilization and was considered to be emotionally stable at the time of the report. When the minor spoke to the social worker in June 2008, he was “very open to guardianship.” Appellant had quarterly visitation and was happy that the proposed guardian was willing to schedule monthly visits. The report stated the Siskiyou County Human Services Department (the department) wanted to continue dependency jurisdiction to monitor his progress and his visitation.
The foster agency quarterly report stated the minor was comfortable in the foster home although he had episodes of anxiety and was generally a reclusive child but able to interact within a small peer group. The report from the Adoptions Services Bureau of the Department of Social Services recommended a plan of guardianship because the minor was doing well in his placement and both the minor and the caretaker were comfortable with that plan. The minor had some interest in adoption, but was concerned about how appellant would perceive it.
At the contested selection and implementation hearing, appellant presented testimony from acquaintances about her character and her ability to care for the minor. Appellant also testified about her difficulties in getting to visits. The then 13-year-old minor testified in chambers. He stated he enjoyed his quarterly visits with appellant and would like more frequent visits. Although he wanted to go home, guardianship was an acceptable substitute because he could visit appellant more frequently and be able to go places other than the agency office. He stated he would also like to visit his siblings more frequently.
The department informed the court that it now wanted jurisdiction terminated, noting that whether the court retained jurisdiction, the guardian had control of visitation and was not subject to department monitoring. Sibling visits could still be facilitated by the department because those dependency cases were ongoing. Appellant’s counsel objected to termination of jurisdiction due to concerns about appellant’s need for support services to get to visits with the minor. The prospective guardian intended to accommodate the minor’s wish to visit appellant once a month. The court adopted guardianship as the permanent plan for the minor, terminated dependency jurisdiction, and ordered reasonable visitation between the minor and appellant with time, place, and other circumstances as determined by the legal guardian. The court further directed the department to use best efforts to increase visits between the minor and his siblings and the minor and appellant.
DISCUSSION
Appellant contends the juvenile court abused its discretion in terminating dependency jurisdiction after appointing the current caretaker guardian for the minor. Appellant argues the court no longer has the ability to enforce visitation and termination is thus inconsistent with the visitation orders.
Respondent has informed the court it did not oppose resumption of dependency jurisdiction should this court so instruct the juvenile court.
If a juvenile court finds termination of parental rights and adoption is not in the best interest of a dependent minor, it may, in a proper case, order that the present caretaker become the legal guardian of the minor. (§ 366.26, subds. (c)(4)(A), (d), (h)(1).) The court must make an order for visitation with the parent unless it finds visitation would be detrimental to the physical or emotional well-being of the minor. (Id., subd. (c)(4)(C).)
When the court orders a permanent plan of guardianship, the court retains jurisdiction over the minor until the guardianship is established. (§ 366.3, subd. (a).) Further, “[a]ny minor for whom a guardianship has been established resulting from the selection or implementation of a permanency plan pursuant to Section 366.26 is within the jurisdiction of the juvenile court.” (§ 366.4, subd. (a).) Once the guardianship has been established, the court may “continue jurisdiction over the child as a dependent child of the juvenile court or may terminate its dependency jurisdiction and retain jurisdiction over the child as a ward of the legal guardianship.” (§ 366.3, subd. (a).)
The choice of whether to terminate dependency jurisdiction is within the discretion of the juvenile court. In exercising that discretion, the court must consider the factual setting of the case and any circumstances which could negatively impact either the guardianship itself or, as in this case, the visitation orders. (In re Twighla T. (1992) 4 Cal.App.4th 799, 806.) Because jurisdiction over the minor remains, any problem which might arise with appellant’s visitation rights can be addressed by the juvenile court. (Ibid.; Cal. Rules of Court, rules 5.570, 5.740(c).)
California Rules of Court, rule 5.740(c) requires that a petition following the procedures adopted for petitions for modification (§ 388) be filed in the juvenile court when the petitioner wishes to “modify or supplement orders concerning the guardianship.” Applications to enforce existing visitation orders do not fall precisely within the rule; however, failure to comply with visitation orders could constitute a change in circumstance and, by ordering visitation, the juvenile court has already concluded visitation would be in the minor’s best interest. Thus, meeting the requirements of a petition for modification should present little difficulty should such a vehicle be used for enforcement of visitation orders.
Appellant relies on the decision in In re K.D. (2004) 124 Cal.App.4th 1013, to argue that the court’s visitation order is “fatally inconsistent” with the order terminating dependency jurisdiction. (Id. at pp. 1018-1019.) We disagree.
The In re K.D. court found the juvenile court erred in terminating dependency jurisdiction when ordering a permanent plan of guardianship after finding that termination of parental rights would be detrimental to the minor because there had been regular visitation and the minor would benefit from continued contact with the parent. (In re K.D., supra, 124 Cal.App.4th at pp. 1018-1019.) Because the juvenile court found the exception to termination of parental rights applied, the reviewing court concluded the juvenile court had an obligation to oversee visitation and thus could not terminate dependency jurisdiction. (Ibid.) The reviewing court also found, in part, that termination of dependency jurisdiction was error due to the fact that the mother’s developmental limitations would impede her ability to access the court should problems arise. (Id. at p. 1019.)
The facts in this case are not remotely the same. Appellant has, over the long course of this case, shown ample ability to access the court, with or without counsel, when she has felt a need to do so. In any case, upon application to modify or enforce visitation, the court could reinstate dependency jurisdiction and appoint counsel, if necessary. (See In re Kenneth S., Jr. (2008) 169 Cal.App.4th 1353, 1358-1359.) Further, to the extent that In re K.D. holds that a juvenile court must retain dependency jurisdiction when it has found that continued contact between parent and child would benefit the child under former section 366.26, subdivision (c)(1)(A), now section 366.26, subdivision (c)(1)(B)(i), it is factually distinguishable from this case. Here, the juvenile court did not consider a permanent plan of adoption and made no findings regarding possible exceptions to such a plan, but instead moved from a plan of long-term foster care to the greater permanency of guardianship. In doing so, the court considered all the facts, including the fact that the minor’s siblings remained under dependency jurisdiction and that the guardian had expressed an intention to facilitate an increase in visitation to once a month. No abuse of discretion in terminating dependency jurisdiction appears.
Appellant relies upon the juvenile court’s direction to the department to use best efforts to increase visitation to support the claim that jurisdiction should not have been terminated. The court’s encouragement on this point is not an enforceable order whether dependency jurisdiction is retained. In any case the circumstances underlying the encouragement, i.e., possible transportation difficulties, were fully considered by the court before terminating dependency jurisdiction.
DISPOSITION
The orders selecting guardianship as a permanent plan and terminating dependency jurisdiction are affirmed.
We concur: BLEASE, Acting P. J., CANTIL-SAKAUYE, J.