Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from orders of the Superior Court of San Diego CountySuper. Ct. No. J514223F-G, Carol Isackson, Judge. Affirmed.
AARON, J.
Jose Y. and Leticia O. (together the parents) appeal the juvenile court's order denying their petitions for modification under Welfare and Institutions Code section 388. In their petitions, Jose and Leticia sought to terminate the guardianships of their minor children Karina Y. and Angela Y. (together the minors) and have the children returned to parental custody. The parents also appeal an order granting the guardians' section 388 modification petition requesting that the court limit the parents' visitation with the minors. We affirm the orders.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2001 one-year-old Karina and one-month-old Angela, along with their five older siblings, became dependents of the juvenile court under section 300, subdivision (b) and were removed from parental custody based on findings that the parents abused drugs. The parents had a history of referrals with the San Diego County Health and Human Services Agency (Agency) dating to 1992, and had previously participated in voluntary services. The parents had criminal histories, were often homeless, and used drugs. The minors and their siblings were found dirty, hungry, and neglected.
The minors' siblings are not subjects of this appeal.
The parents participated in services, and by the 18-month hearing, were able to reunify with all seven children. However, in March 2004 Agency filed petitions in the juvenile court on behalf of the minors and their siblings under section 300, subdivision (b) because the parents tested positive for methamphetamine. The court again declared the minors and their siblings dependents and placed them in out-of-home care. The court denied the parents reunification services under section 361.5, subdivision (b)(13) and set a section 366.26 selection and implementation hearing.
The parents began to participate in the drug court program in September 2004, and were making excellent progress. As of April 2005 they had maintained their sobriety for 270 days. The parents were consistently visiting all the children, who appeared to enjoy the visits. The social worker noted that although the parents loved their children, they were not able to care for them on a permanent basis. He recounted that the last time the children were returned to parental custody, the parents relapsed within a relatively short period of time. Because the five older children did not want to be adopted and their bonds with each other were strong, the social worker recommended Another Planned Permanent Living Arrangement (APPLA) for them. The minors were assessed as adoptable, and as having no beneficial parent-child relationship with the parents. The social worker thus recommended adoption as their permanent plans.
At a hearing in May 2005, the court ordered services for the parents. The following month, the minors were placed with caregivers who wanted to adopt them. The minors had adjusted well to their new home and seemed bonded to their caregivers. Angela referred to the caregivers as "my mommy and daddy." Karina seemed conflicted about where she wanted to live. The parents were having unsupervised overnight visits with the five older children.
The parents continued to test clean for drugs and to participate in services. However, supervision for visits with the children was reinstated because the parents were not providing adequate food during visits, they left some of the children unattended and unsupervised, they transported the minors in a car without child car seats, and Jose yelled at the children excessively. The parents admitted that having five children in their custody was a challenge and that money was scarce. At the 18-month review hearing, the court terminated services and set a section 366.26 selection and implementation hearing for the minors.
According to Agency's assessment report, the minors continued to do well in their caregivers' home. The parents visited regularly. The minors showed no anxiety when they separated from the parents after visits. In the social worker's opinion, the minors had a "playful relationship" with the parents and a parent-child relationship with their caregivers. The social worker believed the minors deserved permanency after having been in the dependency system for five years.
In April 2006, each of the parents filed a section 388 petition for modification seeking to have the minors returned to parental custody. The five older siblings also filed a section 388 petition, asking that the court order APPLA, not adoption, as the minors' permanent plan based on the existence of a beneficial sibling bond. The court ordered a hearing on each petition.
In its addendum reports, Agency reiterated its recommendation for adoption as the minors' permanent plans. Karina told the social worker that she wanted to live with her mother, but later she said that she wanted to stay with her caregivers because they had a big house and a pool. Karina said if her parents had a big house and a pool, she would want to live with them. Angela said that she liked playing with her parents and siblings at visits. The parents were having unsupervised visits with the minors for seven hours every Saturday. Although the visits had gone well, Angela was reluctant to leave her caregivers at the beginning of visits. The parents remained sober. They had had custody of the five older siblings for the past three months.
At the time set for the hearing on the section 388 petitions, the parties agreed to, and the court ordered, permanent plans of guardianship for the minors. The parents withdrew their section 388 petitions, and the court denied the siblings' petition. The court found that the minors were adoptable, but also that the beneficial sibling relationship exception of section 366.26, subdivision (c)(1)(E) applied. The court retained dependency jurisdiction and ordered unsupervised visitation for the parents. Letters of guardianship issued on August 28, 2006.
Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats. 2006, ch. 838, § 52.)
At post-permanency planning hearings in September 2006 and March 2007, Agency recommended that the guardianships for the minors remain in effect. The minors had adjusted well in their guardians' home, where they had lived for about 21 months. They visited their parents and siblings three weekends each month. The court ordered this visitation schedule to continue.
The parents each filed a section 388 petition for modification, seeking to terminate the guardianships for the minors, and to have them returned to the parents' custody, with family maintenance services. As changed circumstances, the parents alleged that they had successfully addressed the protective issues that had led to the dependency, and that the five older siblings had been returned to their custody. As for the minors' best interests, the parents alleged that the minors are bonded to them and to their siblings, and that returning them to parental custody would provide stability for them.
The guardians also filed a section 388 petition, asking the court to limit the minors' visitation with the parents. They alleged that the current visitation schedule─three weekends each month─was disruptive for the minors and that it was not conducive to creating a stable home environment. The guardians claimed that the minors were not properly cared for in the parents' home, and that they often returned to the guardians' home dirty, sick, and exhibiting behavior problems. The guardians further alleged that the visitation schedule hindered the minors' ability to participate in extracurricular activities and forced them to constantly readjust to different home environments, causing them anxiety.
Agency declined to take a position on returning the minors to parental custody or changing the visitation schedule. The social worker acknowledged that the parents no longer had any protective issues, and that they loved the minors and wanted them returned home. However, the minors had a bond with the guardians, who were committed to providing them with a permanent home. The social worker believed that the minors needed a permanent and stable placement with either the parents or the guardians.
At a hearing on the section 388 petitions in May 2007, the court ruled that the parents had the burden to present evidence of changed circumstances from the date the guardianship was established─July 17, 2006─to the present, and evidence that a return to parental custody would be in the minors' best interests. The parents did not object to the court limiting the scope of the evidence to be presented.
Leticia testified that she had completed substance abuse treatment, had been clean and sober for three years, continued to attend Narcotics Anonymous (NA) meetings and regularly visited the minors. She now had better parenting skills and was successfully parenting five of her children. Visits with the minors had increased to three weekends a month and were going well. The minors were happy in the parents' home and were excited to see their siblings. Leticia acknowledged that the minors identified the guardians as their parents, but noted that they also referred to the parents as "Mom" and "Dad." She also acknowledged that Karina was torn between wanting to stay with the parents and wanting to be with the guardians.
Jose testified that he had not used drugs for about three years. He continued to attend NA meetings and was able to support his family. Jose said that he was now a better parent, he was able to control his anger, and he used more appropriate forms of discipline with his children. He played with the minors during visits and took them to church and to the beach. The minors enjoyed the time they spent with their siblings. Jose wanted the minors to return home.
Social worker Francisco Flores testified that he had visited the parents' home and that he had not identified any protective issues. He did not observe the minors interact with the parents or the siblings. Although he believed it would not be detrimental to the minors to return to their parents' custody, he could not say whether it was in their best interests to do so because his role was limited to assessing risk and identifying protective issues.
Flores observed the minors in their guardians' home. They seemed happy and comfortable there. Angela told Flores that she wanted to stay with the guardians. In Flores's opinion, Angela would experience a sense of loss if she were removed from the guardians' home. He believed the current visitation plan─three weekends a month with the parents─was not working for the minors because it disrupted their routines and thus, did not offer them permanency.
Yanon Volcani, Ph.D., testified about the bonding study he conducted between the minors and the guardians. Dr. Volcani found that the minors were "extremely comfortable" with the guardians and "eagerly and actively sought contact" with them. Neither child identified the parents as their primary caregivers. The minors identified the guardians as their mother and father, and Angela identified them as her "psychological parents." Although Karina identified the guardians as her primary caregivers, she also associated the parents with her extended family. In Dr. Volcani's opinion, removing the minors from the guardians' care could be traumatic for them, and could have long-term negative repercussions.
Laura Conly, the minors' Court Appointed Special Advocate (CASA), testified that she had observed the minors in their parents' home and in the guardians' home. The minors enjoyed playing with their older sister Perla and wanted her to visit them at the guardians' home. The minors told Conly that they wanted to live with the guardians and visit the parents once a month, but not overnight. In Conly's opinion, it was in the minors' best interests to remain placed with the guardians. Conly believed that three weekend visits a month with the parents was too disruptive and stressful for the minors.
After considering the evidence and hearing argument of counsel, the court denied the parents' section 388 petitions, finding that they had not shown either changed circumstances or that placing the minors with the parents would be in the minors' best interests. The court granted the guardians' section 388 petition and ordered that the parents be permitted to visit the minors a minimum of 24 hours a month, including an overnight. The court encouraged the parents and guardians to arrange more visitation. The parties agreed to the court terminating its dependency jurisdiction.
DISCUSSION
I. The Court Did Not Abuse Its Discretion in Denying the Parents' Section 388 Petitions
The parents contend that the court abused its discretion in denying their section 388 petitions for modification. They assert that they showed that their circumstances had changed, and that it would be in the minors' best interests to have the guardianships terminated and be returned to the custody of their parents.
A
Standard of Review
Under section 388, a party may petition the court to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that there has been a change in circumstances or that new evidence exists, and that the proposed change would be in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) The determination as to whether a previous order should be modified and whether a change would be in the child's best interests are within the sound discretion of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The juvenile court's order will not be disturbed on appeal unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. When two or more inferences reasonably can be deduced from the facts, we may not substitute our decision for that of the trial court. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319; In re Casey D., supra, 70 Cal.App.4th at p. 47.)
B
The Parents Did Not Establish That It Would Be in the Minors' Best Interests to Be Returned to Parental Custody
The parents presented evidence that their circumstances had in fact changed. The five older siblings had been returned to the parents' custody, and were no longer dependents of the court, and the parents had demonstrated that they were capable of caring for the siblings. The parents also showed that they had an additional nine months of sobriety, their home was safe and appropriate, visits with the minors had increased, and there were no longer any protective issues.
Jose asserts that the court erred by limiting the evidence to circumstances that had changed since the time of the guardianship order, rather than since the dispositional order removing the minors from parental custody. However, Jose forfeited this issue by not raising it in the juvenile court. (See In re S.B. (2004) 32 Cal.4th 1287, 1293 [parent's failure to object or raise certain issues in the juvenile court prevents the parent from claiming error on appeal].) In any event, the claimed error was harmless in light of our conclusion that the parents made an adequate showing of changed circumstances.
However, the parents did not meet their burden of showing that it would be in the minors' best interests to have the guardianships terminated and be returned to parental custody. (See In re Michael D. (1996) 51 Cal.App.4th 1074, 1086 [parent seeking modification under section 388 must prove a change in placement to parent's home is in minor's best interests].) At the time of the hearing on the section 388 petition, the focus of the proceedings was on providing the minors with a safe, stable, permanent home; there was a rebuttable presumption that continued out-of-home care was in the minors' best interests. (In re Marilyn H. (1993) 5 Cal.4th 295, 309; In re Stephanie M., supra, 7 Cal.4th at p. 317.) Although the minors enjoyed visiting with their parents and siblings, they did not identify their parents as their primary caregivers. Rather, they identified the guardians as their mother and father, and said that they wanted to continue living with the guardians. Where, as here, " 'custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.' [Citations.]" (In re Stephanie M., supra, 7 Cal.4th at p. 317; In re Mary G. (2007) 151 Cal.App.4th 184, 204.)
Although the social worker testified that it would not be detrimental to the minors to be returned to parental custody, he declined to say that this would be in their best interests. A finding that a parent no longer poses a risk of detriment to the child is relevant to, but not necessarily determinative of, the best interests of the child. (In re Nicholas H. (2003) 112 Cal.App.4th 251, 268.) The social worker testified that Angela would experience a sense of loss if she were removed from the guardians' care. According to the CASA, the minors' best interests required that they remain with the guardians. Dr. Volcani concluded that removing the minors from the guardians' care could be traumatic for them and could have long-term negative consequences. The court properly evaluated the evidence in light of the minors' need for stability and continuity and found that their best interests would not be served by terminating the guardianships and returning them to parental custody. The court acted within its discretion in denying the parents' section 388 petitions.
Jose argues that because the court terminated jurisdiction, the parents will not have counsel to advocate for them in seeking to enforce or increase visitation or to pursue termination of the guardianship in the future. However, the parents agreed that the juvenile court could terminate its jurisdiction. Thus, they cannot now claim that this was error. (See In re Brandon M. (1997) 54 Cal.App.4th 1387, 1401 [mother could not complain about order to which she agreed].)
II. The Court Did Not Abuse Its Discretion by Reducing the Amount of Visitation Between the Minors and Their Parents
The parents contend that the court abused its discretion by granting the guardians' section 388 petition seeking to reduce the amount of visitation between the minors and the parents. They assert that the guardians were motivated by their own convenience and wishes for the minors, and that the guardians did not prove that circumstances had changed or that reducing visitation would be in the minors' best interests.
The juvenile court must make visitation orders for parents and their minor children placed in guardianship unless it finds that visitation would be detrimental to the physical or emotional well-being of the children. (§ 366. 26, subd. (c)(4)(C); In re M.R. (2005) 132 Cal.App.4th 269, 274.) The court may not delegate authority to the guardian to decide whether visitation will occur, but may allow the guardian to decide the time, place and manner in which visits will take place. (In re M.R., supra, 132 Cal.App.4th at p. 274.)
In the context of guardianship, visitation arrangements "demand flexibility." (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1376.) Once guardianship is established and the court's jurisdiction is terminated, the guardians have great autonomy in making decisions for the child because they are vested with the child's care, custody, and control. (Guardianship of Zachary H., supra, 73 Cal.App.4th at p. 61.) The guardians, who statutorily act in the role of parents, are best equipped to exercise discretion as to the details of visitation between the child and his or her biological parents.
The guardians met their burden of showing that circumstances had changed and that modifying the visitation order would be in the minors' best interests. Since the guardianship was established, the minors had experienced increased stress and confusion due to the arrangement of visiting the parents three weekends a month. The visitation schedule was disrupting the minors' routines, causing them to be pulled in two different directions and interfering with the goal of permanency and stability that the guardianship was intended to provide them.
Dr. Volcani testified that Karina felt stress about the visitation plan. The social worker believed that the current visitation schedule disrupted the minors' lives, was contrary to their interest in permanency, and negatively impacted their sense of belonging in that it interfered with their extracurricular activities. In the CASA's opinion, three weekends a month of visitation with their parents and siblings was too disruptive and stressful for the minors. The minors told the CASA that they wanted to visit their parents once a month, but not overnight. Even Leticia recognized that Karina was torn between wanting to stay with the parents and wanting to be with the guardians. From this evidence, the court could reasonably conclude that the current visitation schedule of three weekends a month was impeding the minors' stability, and that it could possibly deter the guardians' commitment to providing the minors with security and permanence. The court thus reasonably reduced the amount of visitation to a minimum of 24 hours a month, with one overnight each month, while encouraging the parents and guardians to arrange more visits. The court acted well within its discretion by granting the guardians' section 388 modification petition.
DISPOSITION
The orders are affirmed.
WE CONCUR: McCONNELL, P. J., McDONALD, J.
In any event, termination of dependency jurisdiction does not place the guardians beyond the control of the juvenile court. The court continues to have the authority to regulate the care of the minors, through its jurisdiction over the guardianship. (§ 366.4; Cal. Rules of Court, rule 5.740; In re Twighla T. (1992) 4 Cal.App.4th 799, 806.) The parents will be able to address any concerns about or problems with the guardians' management of visitation in the juvenile court. (Guardianship of Zachary H. (1999) 73 Cal.App.4th 51, 61; Guardianship of Kaylee J. (1997) 55 Cal.App.4th 1425, 1431.)