Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from an order of the Superior Court of Orange County, Super. Ct. No. J433704 John C. Gastelum, Judge.
Konrad S. Lee, under appointment by the Court of Appeal, for Objector and Appellant.
Diana W. Prince, under appointment by the Court of Appeal, for Plaintiff and Respondent.
Benjamin P. de Mayo, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Defendant and Respondent.
No appearance for the Minor.
OPINION
RYLAARSDAM, ACTING P. J.
Defendant Norma R. appeals from an order in favor of plaintiff Courtney O. (father) terminating her guardianship of now 11-year-old Fredrick O. She claims father did not meet his burden of proof under Welfare and Institutions Code section 361, subdivision (c) (all further statutory references are to this code) and California Rules of Court, rule 5.570(h) (all further references to rules are to the California Rules of Court) to show by clear and convincing evidence that it was proper to remove the child from her custody. Father and respondent Orange County Social Services Agency (SSA) respond that the burden of proof was a preponderance of the evidence and that in any event the evidence in favor of terminating the guardianship met both standards. We affirm.
FACTS
In 1996 when the child was born with drugs in his system, SSA took him, along with his two-year-old half sister J. into custody; they were placed with guardian, the maternal great-grandmother. Another half-sister, Jenna, who was then seven years old, had been living with guardian for several years. As part of his services father was ordered to participate in parenting and drug abuse programs and abstain from alcohol. After 18 months the court found father had made little progress and terminated services. Services for mother were also terminated.
Because the then 71-year-old guardian could not or did not want to adopt, the court determined it was not in the child’s best interest to terminate parental rights and ordered a permanent plan of guardianship. It also ordered guardian not to make any derogatory remarks about the parents. The court then terminated its dependency jurisdiction. The guardian ultimately was allowed to decide on the particulars of parents’ visitation with the child.
In November 2005 father filed a petition to terminate the guardianship. (The record reflects the form of petition filed was for termination of proceedings under the Probate Code, not the Welfare and Institutions Code.) A few months later father filed a petition to terminate the guardianship under section 388. (There is no copy of the petition in the record but other documents in the record confirm a petition was filed.)
The grounds for father’s petition were his stable home life and efforts to reunify; guardian’s age and health; guardian’s denial of father’s visitation and her negative comments about father to the child, which had caused the child emotional distress; the child’s mother, who continued to abuse drugs, was living with guardian; and the child’s expressed desire to live with father.
In June 2006 the child filed his own section 388 petition asking the court to reinstate dependency, claiming guardian was 79 and had health problems. It also stated the child had missed 31 days that school year “and his school performance is being affected.” The court granted the petition, reinstated dependency, and ordered section 730 evaluations for guardian, father, and the child, and to be performed by Dr. Donald Smith. It also granted father a two-week visit with the child and increased his visitation.
SSA reports covering the next 15 months revealed the following facts: When social worker, Carmen McCorvey, interviewed the child, he said guardian had told him that if asked, he should tell SSA he wanted to continue to live with her so he could continue to see his father. The child went on, “But she . . . won’t admit to saying that. And I asked her . . . why I should tell . . . a lie and she’s like, ‘Tell her whatever you need to tell her.’” Father, on the other hand, told him to “Tell the truth.” The child also told McCorvey that guardian tried to “turn[] me against my dad. She says, ‘Oh, think of the person who took care of you for nine years.’” The child told McCorvey he was “so confused”; this was evidenced by his conflicting statements about with whom he wanted to live. The child’s therapist told McCorvey the “feud” between father and guardian “put the child ‘in a state of anxiety.’” McCorvey concluded guardian’s conduct had caused emotional harm to the child.
The child told McCorvey that when father called guardian, she told him the child was not there even though he was “right there.” He stated that if he started to discuss the phone calls, guardian would cry. He also revealed that guardian had refused to allow visits with father as a method of disciplining him. She also told him she is “upset that [he] visits with the father.”
Despite warnings from McCorvey and court orders to stop making negative remarks, interfering with the child’s relationship with father, and discussing the case, guardian did not. She told the child father was not a good parent. “Your dad is horrible and I want to keep you safe from your dad,” and “Your dad was on drugs and he was in prison.”
SSA was concerned that guardian had not established parental authority over the child. The child’s teacher told Dr. Smith she thought the child “controls” guardian. McCorvey heard the child tell guardian she was “a baby and [was] telling lies. You lie all the time.” Another time the child told McCorvey guardian need “to act more grown up.” At the hearing McCorvey testified that several times he called her to “tell on” guardian. She stated the child was looking for authority figures because guardian was not fulfilling that role.
Guardian told the child if he did not do his homework he would be called “a big fat dummy.” When McCorvey explained this was inappropriate, guardian justified it by saying it could happen. On another occasion, the child told McCorvey guardian had said if he refused to meet with the social worker, he would go to juvenile hall. Guardian explained she told the child he could be removed from her care. McCorvey cautioned her against making such statements and advised her to enroll in a parenting class.
There were lots of fights between the child and his two sisters and SSA concluded the conflict “is at times out of control.” Guardian acknowledged child’s oldest sister had “displayed intimidating behavior towards” him. The child stated he was afraid of her. On one occasion he called 911. SSA noted there was “an unwarranted amount of chaos in [guardian’s] home.”
In addition, a few years before the petition was filed there were two child abuse reports regarding the oldest sister. The first, where mother had “slugged” her in the face, was substantiated. The other, alleged sexual abuse by an uncle, was not. During investigation of the latter, guardian told SSA she was concerned that the sister physically mistreated the child and was possibly abusing drugs. But she refused any services.
SSA was also concerned with the child’s 31 absences from school the past school year; nine days per year is the norm. Some of the child’s grades needed improvement and academic intervention was necessary for study and work habits, social skills, and behavior. The next year the teacher reported the child had missed so much homework he would not pass some subjects. Visitation was changed to a 60-day trial visit with father during the summer. Based on the teacher’s recommendation, father enrolled the child in summer school, which he attended daily. Once the child began living with the father and his wife, father reported his behavior “improved dramatically.”
During the period before the hearing, SSA advised guardian not to allow child to have unmonitored contact with mother. McCorvey reported guardian had “demonstrated a lapse in judg[]ment” in “allow[ing] the child to have unmonitored contact with . . . mother and [her] boyfriend,” including “overnight stays.” McCorvey believed mother had a problem with prescription drugs; on one occasion mother’s speech was slurred and she attributed it to a drug she was taking for depression. Mother said she was also taking pain medication.
Guardian told McCorvey she no longer allowed mother’s boyfriend to come to guardian’s home because he was not “a good influence.” But she continued to let him visit. At one point mother was arrested for an incident involving domestic violence with her boyfriend. When SSA asked guardian about it, she initially denied it but later admitted it explaining she had lied because mother had not done anything wrong. The child knew of the incident, although he had not seen it; however on another occasion when staying with mother and her boyfriend he saw the boyfriend hit her.
Later mother was jailed as a result of outstanding warrants. And a claim mother had stolen her daughter’s prescription medication was under investigation.
The psychiatrist who administered the 730 evaluations recommended that the child be placed with father. He also suggested that guardian have liberal, unmonitored visitation unless she “continue[d] to talk negatively to [the child] about his father and step-mother” in which case monitored visitation would be in order. SSA ultimately recommended the guardianship be terminated and the child be placed with father.
After conclusion of the hearing, using a preponderance of the evidence standard, the court ruled in favor of father and granted the petition based on changed circumstances and the best interests of the child. It noted it was not just comparing both homes but had focused on the comparative strength of the bonds between the child and father and the child and guardian. The judge had no doubt the child loved both of them.
The court stressed that permanency and stability for the child were critical. It weighed the relative strengths and weaknesses of father and guardian and their respective homes. As to guardian, the court determined the child did not see her as an authority figure, and guardian was not providing the necessary structure. As a result, guardian “had some difficulty managing” the child. The excessive absences from school were a concern and an example of the child’s ability to manipulate guardian. The court pointed out that the child is quite bright but unfortunately had used his intelligence to manipulate both the situation and especially guardian.
Additionally, the court was worried that guardian had allowed mother to stay in the house despite an order that she have only monitored visits with the child. Further, guardian failed to intervene when the child’s two older sisters had hit him.
Father, on the other hand, has set out rules and boundaries for the child, with consequences for his behavior. When the child attended summer school while living with father, for example, there were no absences. In living with the structure father provided, child was doing much better.
The court ordered the child to be placed with father under a family maintenance plan to be supervised by SSA, with guardian to have visitation, at least as often as alternate weekends.
DISCUSSION
1. Introduction
As guardian frames it, the issue is whether father showed by clear and convincing evidence that it would be detrimental to the child to remain in guardian’s care. (§ 361, subd. (c); rule 5.570(h).) She contends father did not meet that burden. Father and SSA argue that because guardian did not object in the trial court to use of the preponderance of the evidence standard, she has waived the claim on appeal. They also contend that the correct burden of proof is a preponderance of the evidence (In re Michael D. (1996) 51 Cal.App.4th 1074, 1078) and, finally, that in any event the evidence was sufficient to meet the more exacting standard.
After review of the two alternate burdens of proof as discussed below, we conclude it is not necessary to determine which standard is correct under the facts of this case because guardian did forfeit her claim that the correct burden is clear and convincing evidence, and there was sufficient evidence to support the court’s decision.
2. Substantive Law and Burden of Proof
A petition to terminate a guardianship is governed by section 388. (§ 360, subd. (a).) Under that section, a court may modify an order of guardianship if there are changed circumstances or new evidence bearing on the matter and it would be in the best interests of the child. (§ 388, subd. (c); rule 5.570(e); In re Jasmon O. (1994) 8 Cal.4th 398, 415-416; In re Carlos E. (2005) 129 Cal.App.4th 1408, 1418.)
Section 361, subdivision (c) provides several grounds for removing a child from the custody of parents or guardians, including when the child “is suffering severe emotional damage” or there is “a substantial danger” to the physical or emotional health of a child or his or her safety, and “there are no reasonable means by which the minor’s emotional health may be protected without removing the [child] from the . . . guardian[’s]” physical custody. (§ 361, subd. (c) (1), (3).) Rule 5.570(h)(1) provides that where a section 388 petition seeks to remove a child from his or her home, grounds for removal set out in section 361, subdivision (c) must be proven by clear and convincing evidence.
In re Michael D., supra, 51 Cal.App.4th 1074 considered an issue similar to the one raised here. There, after a child had been placed with a guardian and before the hearing on the permanent plan, a mother filed a section 388 petition seeking to terminate the guardianship. After finding changed circumstances and that it was in the child’s best interest to be returned to his mother’s custody, the court granted the petition. The guardian appealed, arguing mother had not proved by clear and convincing evidence that it would be detrimental for the child to remain with the guardian on grounds set out in section 361.
The court examined section 361 and rule 5.570(h)(1) (formerly rule 1432(f)) and determined that when a parent files a section 388 petition to terminate a guardianship the burden of proof is a preponderance of the evidence, “even though the change in placement results in termination of a legal guardianship conditionally established while the child was a dependent of the juvenile court. [Citation.] (In re Michael D., supra, 51 Cal.App.4th at pp. 1086-1087, fn. omitted.) The higher burden of proof, clear and convincing evidence, as set out in rule 5.570(h)(1), applies only when a governmental agency is seeking to remove a child from the home of the parent or guardian. (In re Michael D., supra, 51 Cal.App.4th at p. 1085.)
Guardian argues the holding in Michael D. was incorrect and should be limited to its facts. She contends the higher clear and convincing standard set out in section 361, subdivision (c)(1) and (3) and rule 5.570(h)(1) control. We do not reach that issue.
In closing argument guardian’s counsel referred to Michael D., stating it was “still good law” and twice asked the court to review it. He commented that section 388, requiring change of circumstances and best interest of the child, was “the only way to set aside a guardianship,” noting that “[t]hat’s exactly what Michael D. says . . . .” In making these statements, counsel did not assert clear and convincing evidence was the correct burden of proof. Having never made such an argument in the trial court, guardian cannot raise it for the first time on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293.)
3. Sufficient Evidence
Guardian explicitly “does not challenge father’s suitability for placement” and concedes he “had turned his life around” and was “capable of providing suitable placement” for the child. Thus, the change of circumstances prong of section 388 is not at issue. We need only determine whether there was sufficient evidence that return to the father would be in the child’s best interest. The record reveals such evidence.
Father has assumed a parental role. His home is stable and gives the child structure. The child has boundaries and is required to take responsibility for his actions. This is not the case in guardian’s home, where, although there were some rules, it has “an unwarranted amount of chaos.” All, even guardian, are concerned about the behavior of the child’s oldest sister, including her physical mistreatment of the child and her possible substance abuse.
Further, guardian does not occupy a parental role with the child; instead he is able to manipulate her to his own ends. He missed an excessive amount of school such that he would not receive passing grades in certain areas. When attending summer school when living with father, on the other hand, he did not miss one day and successfully completed his course of studies. Father also noted that when the child lived with him his behavior “improved dramatically.”
Guardian also continues to interfere with the child’s relationship with father, despite court orders and multiple admonitions not to. In addition to the actual damage to the bond between father and child, this caused the child to experience stress and emotional tumult. By contrast father did not make negative remarks about guardian or interfere with the child’s relationship with her.
Additionally, guardian’s age is a factor, even though she appears in good health. If nothing else, the evidence suggests this is part of the reason guardian cannot control the child.
In sum, the record supports the court’s finding it is in the best interest of the child to terminate guardianship and return the child to his father. The court has broad discretion to make this determination and we do not interfere when there is sufficient evidence underlying it. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
Finally, the court’s decision comports with the broad public policy of reunifying children with parents. Although the statutory presumption to return children to the custody of parents no longer applies after reunification services end, a parent may still show changed circumstances and the best interest of the child to “warrant further consideration of reunification. [Citation.]” (In re Michael D., supra, 51 Cal.App.4th at p. 1086.) “The thrust of the legislative scheme is to encourage parents to correct earlier problems so as to reunite them with their children. [Citation.]” (Ibid.) Such is the case here.
DISPOSITION
The order is affirmed.
WE CONCUR: O’LEARY, J., FYBEL, J.