Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County. Jacqueline H. Lewis, Juvenile Court Referee. Los Angeles County Super. Ct. No. CK07122
M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendants and Appellants.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.
CHAVEZ, J.
Minors Jennifer C. (age 15, DOB 8/92) and Joseph C. (age 12, DOB 2/96) appeal from the juvenile court’s June 6, 2007 order granting a petition by the Los Angeles County Department of Children and Family Services (DCFS) under Welfare and Institutions Code section 388 to terminate the legal guardianship of their maternal aunt, Mary J. We affirm the judgment.
All further statutory references are to the Welfare and Institutions Code.
BACKGROUND
In January 2002, the juvenile court appointed Mary as the legal guardian for Jennifer, Joseph, and their now 14-year-old sister, J.C., after the death of the children’s mother in September 1999. The children’s father was also deceased at the time. Both Mary and the children have a history of DCFS intervention.
A. The Children’s History
In August 1993, Jennifer and her siblings Ronnie W., George W., Erick H., Latasha W., and Roberta W. were detained because of physical abuse by their mother. Ronnie suffered numerous bruises and welts to his arms, back, and chest. All of the children except Ronnie were returned to their mother in November 1993. A year later, a subsequent petition under section 342 alleged that the father of Jennifer, Joseph, and J. used inappropriate and excessive physical discipline on the children.
B. Mary’s History
Mary and most of her nine biological children have had previous cases with DCFS.
On December 23, 1988, a voluntary family reunification case was opened for Mary’s child, Peter A., because of general neglect. Mary did not reunify with Peter, and he was adopted in 2003.
On March 6, 1992, Mary’s children Anthony M., Sally S., Stephanie J., and Tanya P. were placed with their maternal grandmother because of general neglect. The case was closed in December 1992.
On March 7, 1992, Mary’s child Jessica J. was detained because of neglect. Mary did not reunify with Jessica, who was subsequently adopted.
On April 16, 1993, Mary’s child Ariel M. was born with a positive toxicology screen for cocaine and PCP. Mary did not reunify with Ariel, and the case was terminated with the child in legal guardianship with a relative.
At the time of the events giving rise to the instant case, however, Ariel was residing in Mary’s home.
In June 1994, a referral alleging severe neglect by Mary of her children David G., Stephanie J., Anthony M., Tanya P., and Sally S. was closed as unfounded. In January 1998, a referral alleging neglect by Mary of her child Irene G. was found to be inconclusive.
In January 1999, Mary’s children David G. and Stephanie J. were detained because of physical abuse by Mary. For this abuse, Mary was convicted of infliction of injury to a child and sentenced to 60 days in jail and 36 months probation. Mary reunified with David G. and Stephanie J. in July 2001.
In 2004, Mary filed a petition under section 388 to change the permanent plan for Jennifer, Joseph, and J. from legal guardianship to adoption. The juvenile court denied the petition because of Mary’s criminal record, her past involvement with DCFS, and her failure to reunify with her biological children.
Mary’s criminal history includes a 1986 conviction for burglary, a 1987 conviction for tampering with a vehicle, a 1990 warrant for burglary and possession of a controlled substance, and the 1999 conviction for infliction of injury to a child.
C. The Instant Case
On February 22, 2007, DCFS received a referral alleging that Mary had physically abused Jennifer’s and Joseph’s sister, J., and Mary’s daughter, Ariel M. Both J. and Ariel were then 13 years old. A DCFS social worker responding to the referral interviewed Newton Police Officer Allen, who reported that J. and Ariel were in protective custody because Mary had beaten the girls with an electrical extension cord. J. and Ariel sustained multiple injuries on their legs, arms, and shoulders.
The social worker interviewed J. and Ariel on February 22, and March 20, 2007. Both girls said that Mary had beaten them with an electrical extension cord on February 20, 2007, because she believed the girls had skipped school that day. The girls and a male friend had stopped at a doughnut shop on the way to school that morning, and were late for their classes. A relative had seen the girls walking toward the school after classes had begun and had informed Mary. Mary went to the school, removed the girls from their classes, and took them home. When they arrived at the home, Mary told the girls to undress. She then took one or more electrical extension cords, wrapped them around her hand, and used them to strike the girls on their legs, shoulders, arms, and back. Both girls had visible welts on their arms and legs. The following day, a school classmate observed bruises on J.’s arms and notified the principal.
The social worker also interviewed Jennifer and Joseph about the incident. Jennifer said that she was present when Mary hit J. and Ariel, and that “J. got it badder than Ariel.” She defended Mary’s actions, saying, “I think they deserved it. Ariel should’ve gotten more.” She recalled Mary saying that she was saving one of the electrical cords used to hit J. and Ariel “for the next time if they do it again.” Jennifer said that Mary had hit her two years ago for being disrespectful, and that she was “whooped” with a belt six years ago for fighting at school. She told the social worker that “Joseph used to get whoopings every day before he started taking medication.” She also said that Mary’s son, Carlos, would get “whoopings” six or seven years ago. Jennifer said that she did not believe she was in any danger, and that she wanted to return home.
Joseph has been diagnosed with attention deficit hyperactivity disorder and takes psychotropic medications. He attends Kedren Mental Health Center for out patient counseling. Joseph said that he was in his room when J. and Ariel were being beaten, and that he observed marks on Ariel’s arms and legs afterward. He said he thought the girls “deserved it, they were ditching.” He said that he could not remember the last time Mary had hit him and that she had not done so in a long time. He said that he has never been hit with an electrical cord, that Ariel and J. frequently behave badly. He said that he loved Mary and wants her to return home.
Mary was interviewed on February 22, and March 21, 2007. She said that on February 20, 2007, her nephew informed her that Ariel and J. were “ditching” school. She went to the school and reviewed the girls’ attendance records in the school office. After learning that Ariel and J. had two unexcused absences, Mary announced her intent to “whoop” the girls. She said, “I was upset, yes. Something told me to calm down and don’t whoop out of anger, whoop out of respect.” She told the DCFS investigator that this meant she intended to “whoop” the girls to teach them respect, not because she was angry.
Mary removed the girls from their classes, took them home, and had them undress. She said, “I started hitting them. I can’t hit them too long, maybe four or five times each, because I have asthma.” She admitted using an extension cord to strike the girls. “It’s true that I whooped them with an extension cord. Not three, but one. It was on the iron. I cut if off with a knife. I had an extension cord wrapped around my hand so it’s two whips for one time.” Mary said she realized she should not have hit the children with an electrical cord and that she was willing to comply with DCFS recommendations. She also stated, however, that she did not believe it was wrong to hit them, and that she did so out of love, not anger. Mary said that she had completed parenting, individual counseling and drug treatment in connection with a previous case and was again willing to attend parenting classes and counseling with the children.
Mary told the social worker that she was physically, emotionally, and sexually abused as a child. She admitted to a history of cocaine use that began at age 15 and continued for the next 13 years. Mary has been diagnosed with depression and was prescribed the psychotropic medication Paxil. She said that she sometimes hears voices telling her to hurt herself, but not others.
The social worker also interviewed Mary’s 12-year-old son, Carlos M.; her 14-year-old daughter, Jessica J.; and her adult daughter, Sally G., all of whom live in the home with her. Carlos denied allegations of physical abuse and said that Ariel and J. were punished because they were “ditching” from school. When asked how Mary disciplines him, Carlos said that she whips him with a belt. He said that he was last hit with a belt approximately two years ago for fighting in school. He said that he is now taking psychotropic medications and that he no longer fights at school. He said that he loves his mother and wants to return home.
Jessica denied allegations of physical abuse by Mary. She said that she was not home at the time J. and Ariel were beaten, but that she saw welts and bruises on the girls’ arms, legs, and back.
Mary’s adult daughter, Sally G., said that she lives in the home and is willing to provide care and supervision for all of the children except Ariel and J. She said that she did not see Mary hit Ariel and J. on February 20, 2007, because she was not home that day.
On February 27, 2007, DCFS filed a petition pursuant to section 300, alleging that on February 20, 2007, Mary had used excessive physical discipline on J. and recommending that the children be detained. The juvenile court ordered the children detained, and granted family reunification services and monitored visitation for Mary. Jennifer and Joseph were placed with Mary’s adult daughter, Sally G., and J. was placed in a foster home. Mary was incarcerated and was serving a 180-day sentence for the crime of inflicting injury to a child. Her anticipated release date was June 14, 2007.
In a March 28, 2007 jurisdiction/disposition report, DCFS noted that Mary had parented the children for a significant period of time and that she and children were bonded with each other, that Mary ensured that Joseph received regular mental health care and was taking his medication, and that the children were enrolled in school and appeared to have strong sibling and familial relationships. In terms of the children’s development, however, DCFS found it “alarming” that the children do not believe Mary’s physical abuse of J. and Ariel to be wrong: “They accept this extreme physical discipline as an appropriate reaction, when in fact it is not. Being in an environment such as this is detrimental to the children because they are learning to believe that physical discipline, abuse, and retaliation, are normal reactions.” DCFS further noted that Mary’s pattern of abusive behavior “has continued over the course of several years, and she herself has stated that, if it is needed, she will continue to physically discipline her children.” In light of this, DCFS recommended against reunification services because it was not in the best interest of the children.
On May 16, 2007, the juvenile court sustained the section 300 petition and the matter was set for a contested disposition. On May 22, 2007, DCFS filed a section 388 petition to terminate Mary’s legal guardianship over J., Jennifer, and Joseph on the ground that Mary’s continued physical abuse of children in her care put J., Jennifer, and Joseph at risk.
A hearing was held on June 7, 2007, on the section 388 petition and the contested disposition of the section 300 petition. Mary did not attend the hearing because she had a job interview, and the juvenile court denied her counsel’s request for a continuance. Counsel for the parties stipulated that Jennifer and Joseph would testify that they wished to be reunited with Mary. Counsel further stipulated that if Mary were present, she would testify that she had enrolled in parenting and anger management classes, had attended three parenting sessions and nine anger management sessions, and that she wished to be reunited with Jennifer and Joseph. Mary’s counsel argued against terminating the legal guardianship, and urged that reunification services be offered instead. The juvenile court found that Mary had a history of drug abuse and physical abuse of her children and the children for whom she had been appointed legal guardian. The juvenile court further found that a substantial change of circumstances had occurred and that it was in the children’s best interest to terminate the guardianship. The court terminated Mary’s legal guardianship and placed Jennifer and Joseph with Mary’s adult daughter, Sally G. This appeal followed.
DISCUSSION
I. Applicable Law and Standard of Review
Sections 360 and 366.3 and California Rules of Court, rule 5.740(c), set forth the procedures for terminating a legal guardianship. An application to terminate a legal guardianship is governed by section 388. (§ 360.) “Section 388 provides that a juvenile court may change an earlier issued order, such as an order creating a legal guardianship, ‘[i]f it appears that the best interests of the child may be promoted by the proposed change of order . . . .’ (§ 388, subd. (c).)” (In re Carlos E. (2005) 129 Cal.App.4th 1408, 1418.) The petitioner seeking to terminate the legal guardianship bears the burden of proving that the requested change should be granted. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
The juvenile court has three options in ruling on a petition to terminate a guardianship: it may grant the petition, deny the petition, or “[d]eny the petition and request the county welfare department to provide services to the guardian and the ward for the purpose of maintaining the guardianship . . . .” (Cal. Rules of Court, rule 5.740(c).) Before the juvenile court may hold a hearing on a petition to terminate a legal guardianship, it must order DCFS to submit a report for the court’s consideration “that shall include an evaluation of whether the child could safely remain in, or be returned to, the legal guardian’s home, without terminating the legal guardianship, if services were provided to the child or legal guardian. If applicable, the report shall also identify recommended family maintenance or reunification services to maintain the legal guardianship and set forth a plan for providing those services.” (§ 366.3, subd. (b).)
A juvenile court’s determination on a petition brought under section 388 is reviewed for abuse of discretion. (In re Stephanie M., supra, 7 Cal.4th at p. 318.) Abuse of discretion is established if the determination is not supported by substantial evidence. (Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 796.)
II. Best Interests of the Children
The juvenile court concluded that terminating Mary’s legal guardianship was in the best interests of the children. Substantial evidence supports this conclusion. Mary’s physical abuse of J. and Ariel led to the children’s detention, Mary’s second incarceration, and the eventual termination of her legal guardianship. She was previously incarcerated in 1999 for physically abusing another child of hers. Although Mary completed parenting and counseling programs in connection with a previous case, the physical abuse has continued. She told the DCFS social worker that she does not believe hitting J. and Ariel was wrong, and that she did so out of love or respect, not anger. She told the children that she was saving the electrical cord used to beat J. and Ariel “for the next time.” The children have come to view such physical abuse as the norm. Jennifer expressed her belief that J. and Ariel “deserved it” and that Ariel “should’ve gotten more.” The juvenile court did not abuse its discretion by granting DCFS’s petition to terminate Mary’s legal guardianship over the children.
III. Consideration of Support and Reunification Services
The children argue that the juvenile court abused its discretion by granting the petition to terminate Mary’s legal guardianship without first offering support and reunification services to the family. Section 366.3, subdivision (b) requires only that the juvenile court consider DCFS’s “evaluation of whether the child could safely remain in, or be returned to, the legal guardian’s home, without terminating the legal guardianship, if services were provided to the child or legal guardian.” (§ 366.3, subd. (b).) Provision of such services is not mandatory. “Nowhere in the statutory guidelines related to the creation and termination of a legal guardianship in the juvenile court is there any requirement that a county department of social services provide reunification services before a legal guardianship is terminated. Nor is there any requirement that the juvenile court make a finding that adequate reunification services were offered.” (In re Carlos E., supra, 129 Cal.App.4th at pp. 1418-1419.)
In its March 28, 2007 jurisdiction/disposition report, DCFS determined that the children could not safely be returned to Mary’s care and recommended that no reunification services be provided: “Ms. [J.]’s pattern of behavior has continued over the course of several years, and she herself has stated that, if it is needed, she will continue to physically discipline her children. Due to the aforementioned, DCFS does not believe it is appropriate for Mary [J.] to receive reunification services and reunification is not in the best interest of the children. DCFS recommends No Reunification to Mary [J.]” After reviewing and considering both DCFS’s evaluation and Mary’s 15-year history with the dependency court system, the juvenile court agreed with DCFS’s recommendation: “The guardian in this case has a history with drug abuse, physical abuse of her children, and the children she is guardian over. It is clearly in the children’s best interest to find some kind of stability with somebody who won’t beat them. And as I had pointed out previously the number of times that Ms. [J.] has been in parenting, individual counseling, et cetera, and yet here she is again on physical abuse allegations, which leads this court to believe, clearly that there really is no hope of having her make any real changes in her life that would provide for safety for these children.” The record shows that the juvenile court considered and accepted DCFS’s recommendation against family maintenance and reunification services.
In re Jessica C. (2007) 151 Cal.App.4th 474, on which the children rely in support of their position, does not compel a different result. In that case, the appellate court reversed an order terminating a legal guardianship because there was no evidence that the juvenile court considered any evaluation of family maintenance or reunification services to the legal guardian before terminating the guardianship. (Id. at p. 483.) Here, such an evaluation was both made and considered. No abuse of discretion occurred.
DISPOSITION
We affirm the juvenile court’s order granting DCFS’s petition under section 388 to terminate the legal guardianship.
We concur: BOREN, P. J., ASHMANN-GERST, J.