Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. No. CK47594, Stephen Marpet, Juvenile Court Referee.
Anna L. Ollinger, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., Los Angeles County Counsel, James M. Owens, Assistant County Counsel, Deborah L. Hale, Senior Deputy County Counsel for Plaintiff and Respondent.
Turner, P. J.
I. INTRODUCTION
J.B., the mother of C.B., appeals from an order granting a Welfare and Institutions Code, section 388 petition to terminate legal guardianship and granting physical custody of the child to I.P., the father, who lives in Florida. The mother contends: the juvenile court abused its discretion and violated her due process rights by refusing to grant a continuance of the father’s section 388 petition; the order to terminate legal guardianship and place the child with the father was erroneous; and the juvenile court abused its discretion in changing her visitation rights to monitored visits. Subsequent events including the denial of the mother’s own section 388 petition have rendered the continuance issue moot. None of the mother’s other claims has merit, so the order is affirmed in all respects.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
II. BACKGROUND
This family initially came to the juvenile court’s attention on January 31, 2002 when the Los Angeles County Department of Children and Family Services filed a section 300 petition on behalf of the child who was a four-year-old boy. The addendum report stated that the child had been detained because the mother had a history of domestic violence in her relationships. The mother also associated with gang members. The gang members had “blown” out the windows of the home in which she and the child lived. The mother also had a history of extreme mood swings and did not take prescribed psychotropic medication to alleviate her mental and emotional problems. The mother had a history of leaving the child with relatives for extended periods and failing to provide him with the basic necessities of life. The child was placed in the home of the maternal grandfather, D.C. Also residing in the home was the maternal grandfather’s companion, S.S. The father was originally only identified as the alleged father, who lived in Michigan. The paternal grandfather stated the father had been paying child support to the mother. But these payments stopped when the father began receiving disability payments.
The mother appeared at the January 31, 2002 detention hearing. The juvenile court ordered the child detained and granted the mother monitored visits. The department was ordered to make efforts to locate the child’s father. For the pretrial conference on March 12, 2002, the department reported that the mother admitted using marijuana and methamphetamines. She admitted the drugs affected her mood. The mother also admitted that she associated with a gang member. According to the mother, the gang member destroyed her home and her clothing. The maternal grandfather stated the mother had a history of instability and transiency. The mother was homeless for five days in January 2002. The maternal grandfather cared for the child for eight months from December 2000 to August 2001. The mother failed to pick up the child from daycare one day. The maternal grandfather found the mother passed out at her home.
On March 12, 2002, through mediation, the mother agreed to submit to the juvenile court’s jurisdiction. The juvenile court sustained the petition as amended and declared the youngster to be a dependent child as described in section 300, subdivision (b). As sustained, the petition alleged: the mother had a history of substance abuse and experienced mood swings; this periodically limited her ability to provide regular and adequate care for the child; and such placed the child at risk of physical and emotional harm. The juvenile court ordered: the child placed with the maternal grandfather; family reunification services be provided to the mother; the mother and child to have monitored visits; and no services be provided to I.P., who was the alleged father. (As will be noted, I.P. was later certified in fact to be the child’s father.) The mother was ordered to participate in drug rehabilitation, random testing and individual and drug counseling. The mother was ordered to consult with a psychiatrist. The mother was also ordered to complete counseling and to attend Alcoholics or Narcotics Anonymous. On April 5, 2002, the court granted the maternal grandfather’s de facto parent standing application. The application was granted over the objections of the mother’s and the child’s attorneys.
On June 11, 2002, the department reported that the maternal grandfather had given a letter containing the father’s return address in New York. Notice was sent to the father at that address. The child was reported to be doing well in the maternal grandfather’s home. However, the maternal grandfather and the daycare provider reported the child suffered from nightmares throughout the night and during naps. A social worker, Kimberly M. Jones, reported that the mother interacted appropriately with the child during visits. When the mother would attempt to hug the child, he would place his arms to his side and lean his body into hers so as to embrace her. The child asked if they could live together in the maternal grandfather’s home. The maternal grandfather was concerned about a man identified only as Michael who appeared at the visits with the mother during the month of April. Michael subsequently appeared alone at the paternal grandfather’s home. Michael identified himself as the mother’s boyfriend. The mother stated that the man identified only as Michael had been harassing her and that she was applying for a restraining order against him. The maternal grandfather was also concerned about the mother’s habit during the time allotted for visits of spending her time watching television or going through “her belongings” in his garage.
According to the department, the mother had completed a parenting class. The mother tested positive for marijuana on February 19, 2002. The mother tested positive for codeine after being prescribed a medication for a recurring illness. The prescribed medicine contained codeine. The mother was enrolled in drug counseling. The mother had been treated at Long Beach Mental Health Center in 2000. The mother was diagnosed with major depressive disorder when discharged in July 2000. The mother had not complied with the juvenile court order to obtain an individual therapist. The department reported the mother was making progress in complying with other juvenile court orders. The department social worker was concerned about the mother’s failure to obtain individual counseling. The department was also concerned about the mother’s housing situation. The mother lived in a sober living complex, which accepted children. However, there were individual rooms but not separate apartments. And there were male residents at in the complex.
At the six-month review hearing on September 10, 2002, the juvenile court found that the mother was complying with the case plan. The juvenile court gave the mother unmonitored visits. The department was ordered to pay for the mother’s counseling. The juvenile court continued family reunification services.
On March 11, 2003, for the 12-month review hearing, the department reported that the child was doing well in D.C.’s custody. D.C. and his companion wanted to pursue legal guardianship because: the mother seemed to be making positive changes in her life; the mother was undergoing individual counseling; and the mother was also in conjoint counseling with the child. With one exception, the mother had tested clean except for one test that was positive for Benzodiazepines. The mother could not explain why Benzodiazepines were in her system. According to the department social worker, the mother’s visits with the child went well. She had two unmonitored visits with the child. The mother said she had not had more because she was not financially able to take him to the places he wanted to go. The mother also was inhibited because she did not have a car but had to take a bus. The mother subsequently obtained a car but did not have insurance.
On February 20, 2003, the mother stated she was attending school and wanted to have a career so as to better provide for the child. The mother felt that between work and school she would have very little time for the child. She wanted to have the child remain with the maternal grandfather in a stable environment. The mother agreed the best plan for the child was for the maternal grandfather to have legal guardianship. The mother signed an affidavit agreeing to terminate family reunification services and have the maternal grandfather obtain legal guardianship of the child.
On March 11, 2003, the juvenile court terminated family reunification services and set the matter for a section 366.26 hearing to address the legal guardianship issue. In June 2003, the department submitted a report which recommended a permanent plan of legal guardianship with the maternal grandfather and S.S. The department reported that the child had lived with the two men off and on. This had been going on since the child was nine months old. When the child was not living with the couple, he was spending his weekends with them. The maternal grandfather and S.S. stated that they would be interested in pursuing adoption in the future if the mother did not continue making progress toward reunifying with the child. The child stated he wanted to live with the two men. The mother was attending weekly therapy sessions. The therapist, Dr. Trevor Monroe, recommended that the mother continue with therapy to deal with her past problems.
On June 10, 2003, the juvenile court granted legal guardianship to the maternal grandfather and S.S. The matter was continued to June 24, 2003 to allow preparation of guardianship letters. On July 11, 2003, the juvenile court: appointed the maternal grandfather and S.S. as the child’s legal guardians; ordered visitation for the mother as arranged by the guardians; and terminated the parental rights of the father. The juvenile court terminated jurisdiction pursuant to Kinship Guardianship Assistance Payment Program.
On November 24, 2008, the father filed a section 388 to change the legal guardianship order and termination of his parental rights. The father requested he be granted custody. The father desired to live with the child. The section 388 modification petition also requested that the child be permitted to use the father’s name. The modification petition alleged that the father discovered that the support provided the child was being given to the mother. The father discovered the funds were never provided to the child. The father was finally able to contact the child with the help of the maternal grandfather. The father and son had developed a relationship. The father resided in Florida with his wife and three stepchildren. The child had formed a bond with his father’s family. The juvenile court set the matter for hearing on January 23, 2009.
In a report dated January 23, 2009, the department reported that the mother stated the father was in fact the biological father. He had been identified in the dependency proceedings as an alleged father. According to the department report filed January 23, 2009, “[The f]ather reported... that he has two possession charges for marijuana and one felony charge for paraphernalia possession dated 2001 / 2002 in Livingstone County, Michigan.” After the paternal grandfather died, the father began using cocaine ‘“off and on”’ and heavily smoking marijuana. The father stated that the drug paraphernalia belonged to his roommate, but the father was also charged. The father moved to New York and then Florida without dealing with the Michigan charges. The father was placed on probation for nine months and was ordered to complete a substance abuse program and drug testing. The father had not been arrested since 2002. The father’s wife had never been arrested.
The child stated that he felt comfortable being with his new family during the holidays. The stepmother was nice to him. The child felt comfortable living with his step-siblings. The child understood that the legal guardianship would have to be terminated. The child stated: “‘I understand and I want to be with my dad permanently. I know my dad would have full custody of me. I bonded more with my dad when I was in Florida. We had heart to heart talks once or twice.’” The child stated about the mother, if he moved to Florida: “‘She might be disappointed, but she did this. Until she fixes this I don’t want to live with her. She did something bad. She doesn’t act like a mom. [The stepmother] acts more like a mom.’”
The maternal grandfather and the father had spoken. The father saw pictures on My Space that the mother posted of the child. The father had called the child every day since September 29, 2008. The maternal grandfather loved the child. The maternal grandfather thought that the child should be with the father. The child told the maternal grandfather, “You mean I have a dad who loves me.” According to the grandfather, the mother visited the child but not consistently.
The father had been searching for the child since 2002. The father did not have a current address for the mother. He had been paying child support to the mother for a number of years. The father discovered that the child was not living with the mother but she was still collecting the child support. The maternal grandfather requested that the amounts of money the Michigan court had ordered the mother to pay be redirected to the father to support the child in Florida. The maternal grandfather was also working with the Michigan authorities to forgive any amounts in arrears that the father may owe to the maternal grandfather. The department recommended that the father, as a non-offending parent, be given sole legal and physical custody of the child. The department further recommended that the legal guardianship be rescinded and that jurisdiction be terminated.
The mother and the father appeared at the January 23, 2009 section 388 hearing. The mother and father were each appointed counsel. The mother’s counsel, Linda Simmons, made an oral continuance request. Ms. Simmons stated that she had just been appointed and needed time to prepare a section 388 on the mother’s behalf. The child’s attorney, Renee Mundon, opposed the continuance request. Ms. Mundon argued that the mother’s section 388 petition was only being contemplated as a response to the father’s modification request. Ms. Mundon further argued the mother had taken no steps to assume the obligations of custody for several years. According to Ms. Simmons, the mother would have filed her own section 388 but for a threat by the maternal grandfather. According to the mother, she had been told by the maternal grandfather that if she filed a section 388 petition, she would have no contact with the child.
Ms. Mundon, the child’s attorney, subsequently requested that the mother’s visitation with him be monitored. Ms. Mundon argued that the visits with the child should be monitored because the guardians were already monitoring the mother’s contact over the past several months. Over the mother’s objection, the juvenile court granted the mother monitored visitation. But the juvenile court invited the mother to file her own section 388 petition in which she could address potential visitation liberalization. In ordering monitored visits the juvenile court stated: “Well, now that the department is involved, I’m going to order that mother’s visits be monitored. The department will have discretion to liberalize mother’s visits consistent with her participating in whatever programs she was previously ordered to do. [¶] She can file a [section] 388 [petition] to liberalize visits and have further contact.”
The juvenile court denied the mother’s request to continue the father’s section 388 hearing. The juvenile court then granted the section 388 petition, terminated the legal guardianship, changed the mother’s visitation from unmonitored to monitored, and ordered the child placed in the father’s home. The order was conditioned upon the child finishing the school year in California. The court set a review hearing for July 24, 2009. This timely appeal followed.
III. DISCUSSION
A. The Continuance Request
The mother claims that the juvenile court abused its discretion and violated her due process rights when it denied her January 23, 2009 continuance request so that she could file her own section 388 petition. Under, section 352, subdivision (a), the mother was required to show that good cause existed to continue the father’s section 388 modification petition hearing. (Renee S. v. Superior Court (1999) 76 Cal.App.4th 187, 196; In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.) In such cases, the juvenile court is required to give substantial weight to the: need for prompt resolution of the child’s custody status; the need for the child to have a stable environment; and the damage to the child from prolonged temporary placements. (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187; In re Debra M. (1987) 189 Cal.App.3d 1032, 1038.) Moreover, continuances in dependency proceedings are discouraged because stability and permanence for a child should be resolved expeditiously. (In re Francisco W. (2006) 139 Cal.App.4th 695, 706; In re Emily L. (1989) 212 Cal.App.3d 734, 743.) A denial of a continuance request is reviewed for an abuse of discretion. (In re Karla C. (2003) 113 Cal.App.4th 166, 180; In re Ninfa S., supra, 62 Cal.App.4th pp. 810-811.)
Section 352, subdivision (a) provides: “Upon request of counsel for the parent, guardian, minor, or petitioner, the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor. In considering the minor’s interests, the court shall give substantial weight to a minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements. [¶] Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance. Neither a stipulation between counsel nor the convenience of the parties is in and of itself a good cause. Further, neither a pending criminal prosecution nor family law matter shall be considered in and of itself as good cause. Whenever any continuance is granted, the facts proven which require the continuance shall be entered upon the minutes of the court. [¶] In order to obtain a motion for a continuance of the hearing, written notice shall be filed at least two court days prior to the date set for hearing, together with affidavits or declarations detailing specific facts showing that a continuance is necessary, unless the court for good cause entertains an oral motion for continuance.”
We need not consider if there was an abuse of discretion or a due process violation in refusing to grant the mother’s continuance request. We agree with the department that judicially noticeable post-modification evidence filed by the department on August 29, 2009, shows that subsequent events render the continuance issue moot. We may augment an appellate record with post-judgment evidence in dependency cases when such an order would expedite the proceedings and promote the finality of juvenile court orders and judgments. (Code Civ. Proc., § 909; Evid. Code §§ 452, 459; In re Josiah Z. (2005) 36 Cal.4th 664, 675-676; In re A.B. (2008) 164 Cal.App.4th 832, 839-841; In re Salvador M. (2005) 133 Cal.App.4th 1415, 1420-1422.) This includes claims that an issue on appeal has become moot by subsequent events and consideration of the evidence not only supports the child’s best interests but also the juvenile court’s ruling (i.e., promoting the policies of giving finality to judgments and preventing further delay). (See In re Josiah Z., supra, 36 Cal.4th at p. 676; In re A.B., supra, 164 Cal.App.4th at pp. 839-841; In re Salvador M., supra, 133 Cal.App.4th at pp. 1420-1422.)
Here, after the juvenile court modified its prior order by granting the father’s section 388, it did not terminate jurisdiction but set the matter for a judicial review in July 2009. The court then invited the mother to file her own section 388 petition in the interim. (See In re Elizabeth M. (2008) 158 Cal.App.4th 1551, 1556 [due process requires notice and opportunity to be heard]; In re Brian K. (2002) 103 Cal.App.4th 39, 42 [due process is satisfied by notice and opportunity to be heard].) The mother then filed her own section 388 petition. The merits of the mother’s section 388 petition were heard and denied on July 24, 2009. The juvenile court denied the mother’s section 388 petition on the grounds there were no changed circumstances and it was not in the child’s best interests to be placed with her. Any issue related to whether a continuance should have been granted in January 23, 2009, has been rendered moot by the denial of the mother’s section 388 petition on the merits on July 24, 2009.
B. The Termination of Legal Guardianship and Home of the Father Placement Orders
The mother argues that the modification order terminating legal guardianship and placing the child in the home of the father was error. An application for termination of guardianship is governed by section 388. (§ 360, subd. (a); In re Carlos E. (2005) 129 Cal.App.4th 1408, 1418.) Section 388, subdivision (c) allows termination of a guardianship if there is proof by a preponderance of the evidence that there are changed circumstances and such an order would be in the child’s best interests. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416; In re Michael D. (1996) 51 Cal.App.4th 1074, 1078.) The juvenile court’s ruling is viewed for an abuse of discretion. (In re Jacob P. (2007) 157 Cal.App.4th 819, 831 ; In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333.)
The mother argues the juvenile court abused its discretion in granting the modification request because the evidence does not support the order. This is because: the department’s report was sparse; the father had a past criminal drug history; there were no pay stubs indicating the father was in fact employed; there was evidence of child support issues in the Michigan court; and the child’s life would be radically changed by a move to Florida. Although the father was not a part of the child’s life for many years, there is evidence they have bonded. Indeed, the maternal grandfather supported the modification petition because of the bond that had developed between the child and the father. More importantly, there is evidence that the father has assumed a parental role in the child’s life. The father is married and raising three stepchildren in Florida. The father is employed, and with some lapses, has provided the child with financial support over several years. The father and the child had spoken to each other on a daily basis from September 2008. The child spent the December 2008 holiday season with the father and his family. The child expressed an interest in living with the father. As noted, the child said, “I won’t be bored because I have a brother and sisters and I’ll have more time with my dad.” The child stated that his step-mother acted like a mom. There is evidence the father’s home will provide stability and structure. Thus, the juvenile court’s modification order is supported by the evidence and no abuse of discretion occurred.
C. The Visitation Modification
The mother contends that the juvenile court abused its discretion in changing the visitation order from unmonitored to monitored. The juvenile court had discretion to order reasonable monitored visitation if there is a concern about a parent’s ability to protect and care for a child if left unsupervised. (See In re Jennifer R. (1993) 14 Cal.App.4th 704, 712-713; see also In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Megan B. (1991) 235 Cal.App.3d 942, 953.) The child became a dependent of the court after a section 300 petition was filed on his behalf in January 2002. The child was four years old at that time. The mother was unable to reunite with the child. As a result, the child had been in a legal guardianship since July 11, 2003, with the maternal grandfather. The maternal grandfather had been taking care of the child since the youngster was about nine months old. This included “weekend” visits with the maternal grandfather from Friday to Monday or Friday to Tuesday. Before the juvenile court decided that the child should have a permanent plan of legal guardianship, he was enthusiastic about visiting the mother. The child even wanted the mother to live with him. Notably, the child’s wishes in this regard were conditioned upon the mother also living in the maternal grandfather’s home. The child did not express any interest in living with the mother by himself.
Since the July 11, 2003 legal guardianship order, the mother’s visitation was arranged by the child’s guardians. That is, for almost six years, the mother only visited with the child. According to the department’s January 23, 2009 report, the maternal grandfather stated that the mother visited the child but not consistently.
Furthermore, the juvenile court did not change the visitation order in a vacuum. Rather, the visitation order was modified at the request of the child’s attorney. The child told the department social worker, Darlene Moore, he did not want to live with the mother. As noted, the child expressed the following feelings about the mother in the event he went to live in Florida: “‘She might be disappointed, but she did this. Until she fixes this I don’t want to live with her. She did something bad. She doesn’t act like a mom. [The stepmother] acts more like a mom.’” Thus, in the six-year period that the mother visited with the child, he went from desiring she live with him to wanting to move to another state. Rather than making the child have a sense of stability and feel comfortable in her presence during the six years of visitation, he felt that the mother needed to fix her “bad” behavior. In any event, the juvenile court did not simply terminate the mother’s right to visit. Instead, the juvenile court invited the mother to seek liberalization of visits with the department based on her compliance with prior court orders or by filing her own section 388 petition. Under these circumstances, the juvenile court acted well within its discretion to order reasonable monitored visitation due to concerns about the mother’s ability to protect and care for the child if left unsupervised. (In re Stephanie M., supra, 7 Cal.4th at p. 318; In re Emmanuel R. (2001) 94 Cal.App.4th 452, 465; see In re Jennifer R., supra, 14 Cal.App.4th at pp. 712-713.) No abuse of discretion has been shown by the court’s order requiring the mother’s visits to be supervised.
IV. DISPOSITION
The order is affirmed.
We concur: Armstrong, J., Mosk, J.