Opinion
H030766
5-25-2007
In re K.B., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDRENS SERVICES, Plaintiff and Respondent, v. GLORIA B., Defendant and Appellant.
NOT TO BE PUBLISHED
This dependency began in 1998 with the removal of then seven-year-old K. and her three siblings from her mothers care. Jurisdiction was sustained as to all four children. The youngest child of the four was adopted out in 1999. K.s two other siblings were returned home several years later with a plan of family maintenance. K. began living with foster parents in August 1998, and they became her court-appointed legal guardians in January 2003. The guardians moved with K. to New York in June 2003. At that time the court made visitation orders, which it continued in December 2003, June 2004, and March 2006. The mother appealed from all four of these orders, which we affirmed on appeal. (In re K.B. (Aug. 2, 2004, H026294) [nonpub. opn.]; In re K.B. (Nov. 17, 2004, H027053) [nonpub. opn.]; In re K.B. (Feb. 18, 2005, H027605) [nonpub. opn.]; In re K.B. (Nov. 17, 2006, H030165) [nonpub. opn.].)
On March 7, 2007, this court granted appellants request to take judicial notice of these related appeals.
The present appeal is from an order made on September 25, 2006, continuing the permanent plan of guardianship for K. and continuing the orders previously made for visitation, while adding an order that K. may initiate telephone calls with her two siblings. Here mother continues to contend that the court abused its discretion in continuing the visitation order. We disagree, and therefore affirm.
BACKGROUND
Seven-year-old K. and her three siblings were taken into protective custody in August 1998 because of unsanitary conditions in the home that posed a risk to the children. K. and her six-year-old sister were placed together in a foster home. The juvenile court sustained jurisdiction as to all four children in September 1998. The youngest of the four children was adopted out in 1999. K.s sister and her other brother were returned home several years later with a plan of family maintenance. K. has been in the same placement since August 1998. Reunification services were terminated in November 1999, and a plan of long-term foster care was ordered. Since the first year of the dependency, K. has consistently refused to participate in visitation with her mother, but did visit once with her father.
At a post-permanency review hearing in February 2002, the Department indicated that it was recommending a change from long-term foster care to legal guardianship for K. The juvenile court set a new Welfare and Institutions Code section 366.26 hearing for June 2002. The hearing was continued several times and was eventually held in January 2003. Mothers appointed counsel told the court that the parties had worked out an arrangement to settle the case. Under the settlement plan, the guardianship would be implemented and the court would then approve a clinical assessment of visitation between K. and the mother and father. The court would review visitation in 60 days. It was hoped that a visitation order could result from the clinical assessment that would be beneficial to all parties. The court took trial waivers from the mother and father and made the orders for guardianship. The mother appealed and this court affirmed the orders for guardianship. (In re K.B. (Oct. 21, 2003, H025623) [nonpub. opn.].)
All further statutory references are to the Welfare and Institutions Code.
A hearing was held in May 2003 in order to review the issue of visitation. The court heard testimony from the social worker, K.s therapist, the mother and father, an uncle, the foster mother, and K.s younger sister. After submission of all of the evidence, the court informed the parties that it could not find by a preponderance of the evidence that it would be detrimental to the physical or emotional well being of K. to order visitation. The court observed that a 12-year-old child should not be the one determining whether visitation should occur. The court set a date in June 2003 for the parties to return to court with a plan of visitation that would be reasonable and consistent with K.s well being.
At the June 2003 hearing, the mother submitted a proposed visitation plan calling for weekly visitation in a therapeutic setting. K.s guardians were about to move to New York with K., and the mother and father objected strenuously to the proposed move. They requested that, if the court approved the move, it authorize a face-to-face therapeutic session between K. and the mother and father prior to the family leaving town. The court granted the Departments application to allow K. to move with her guardians to New York, and continued the issue of visitation for a hearing in three days.
At the scheduled hearing, the social worker reported that K. had agreed to a visit with her mother and father at her therapists office. The parties discussed the logistics of a therapeutic visit prior to the guardians and K. leaving town the following week. The court believed that there should be some visitation in the future so that the biological family could stay connected in some way, and that the parents should have some means of contacting K.s therapist and the supervising social worker in New York. The court made the following written order regarding visitation: "Visitation by the mother [] and the father [] shall occur as follows: the mother and father are entitled to reasonable face to face contact consistent with the well-being of the minor. The visits are to be supervised in a therapeutic setting for a minimum of one hour when the child is in California or the mother or father is in New York. [¶] The supervising social worker shall have the discretion to increase the frequency and duration of visits and to permit unsupervised visits, in consultation with the minors therapist. [¶] The minor may initiate telephone contact with the mother and father. The mother and father are authorized to submit letters to the minor through the social worker. [¶] Visitation by the minors siblings [] shall be at the request of any of the children."
Two days after the hearing, K. and her mother and father met for a therapy session with K.s therapist prior to K.s departure to New York with her guardians. The therapist reported that the visit went very well for K. The courts written orders from the hearing were filed one day later, and the mother and father appealed from the visitation order. Principally, the parents claimed that the visitation order was impermissibly vague as to the frequency and location of the visits and that these determinations may not be left up to the guardians. This court found that section 366.26, subdivision (c)(4), as amended effective January 1, 2004, and the opinion of our Supreme Court in In re S.B. (2004) 32 Cal.4th 1287, disposed of the parents arguments, and affirmed the visitation order. (In re K.B., supra, H026294.)
A review hearing was held in December 2003, at which the social worker recommended that guardianship continue and that the previous visitation order remain in effect, with the exception that visitation by K.s siblings be at the request of K. rather than any of the children. K. had had phone contact and one overnight visit with her younger sister, but since moving to New York K. has not seen or talked to either her parents or her siblings and informed the social worker that she does not want to have contact with them. The mother informed the social worker in November 2003 that she has sent letters for K. every few weeks to the social worker and the supervising social worker. Neither social worker had received the letters, so the social worker suggested that the mother drop off future letters in person. The mother dropped off a letter on December 2, 2003, which the social worker mailed to K. the next day.
Both the mother and father expressed concerns that K. was not yet in therapy after having been in New York for five months, and that she was using her guardians name even though the court had denied a request to allow her to change her name. Counsel for father requested that the court fashion an order expressing that one of the expected issues for K.s therapy sessions was family visitation and the circumstances under which it might occur. The court expressed concern that the communication it thought was going to occur had not occurred, that nine letters from K.s parents have not gotten to New York, and that six months had gone by without K. being in therapy. The court stated that it was not for K. to dictate whether or not she visits with her parents and that it was not happy with the delay that had occurred regarding K. being in therapy. However, the court adopted the findings and recommendations of the social worker, finding that they were still appropriate.
Both mother and father appealed from the findings and orders of the court at the December 2003 hearing, separately arguing that section 366.26, subdivision (c)(4), should be construed to require an order for visits when establishing a guardianship. They further argued that the visitation order violates the prohibition against delegation of authority. This court disagreed with these contentions for the reasons stated in our opinion affirming the June 2003 visitation order. Mother and father also argued that the juvenile court abused its discretion in continuing the June 2003 visitation order unchanged, as the order had already been proven ineffective. This court found that because the June 2003 visitation order allowed mother and father reasonable, supervised, face-to-face visitation with K. in New York consistent with K.s well-being, the order did not make visitation contingent on K. being in therapy, and neither mother nor father requested that the court expressly order the Department or the guardians to make specific arrangements for visits, the juvenile court did not abuse its discretion in December 2003 by continuing the June 2003 visitation order. Therefore, we affirmed the December 2003 visitation order. (In re K.B., supra, H027053.)
An interim review hearing was set for March 30, 2004. In the report prepared for the hearing, the social worker reported that the foster mother passed away unexpectedly in February 2004, but that both K. and the foster father expressed a desire to have K. remain a part of his family. K. had received the letters and Christmas gifts the mother had provided the social worker to send to K. However, K. has expressed to both this social worker and the New York social worker that she does not want to have contact with her biological family. Although the social worker offered to set up a visit by the mother with K. in New York, at the mothers request, K. told the social worker that if the mother came to New York she would not see her. The social worker informed mother by mail of K.s response, while continuing her offer to set up a visit to take place in K.s therapists office. The social worker refused to forward a letter she received on March 22, 2004, from mother, finding the letter inappropriately talked about the failed attempt for a visit in February, people ignoring court orders, and the failure of K.s therapist to contact the mother, and that it also attached an inappropriate story.
K. began therapy on January 8, 2004, but K. was accompanied by her foster father at her request for the first four sessions. The therapist reported that he was open to seeing K. without the foster father and that he could see K. weekly if need be to address concerns regarding visitation with her mother, but that if K. knew that the objective of the therapy was to reunite her with her biological family she would likely be far less trusting.
The March 30, 2004 hearing was continued to April 19, 2004, at the request of the fathers counsel. On April 4, 2004, the mother filed a response to the social workers report, objecting to many of the social workers statements. She complained of the possible change of therapists for K., and the failure of the social worker to just send letters after blocking out inappropriate parts.
On April 19, 2004, the hearing was continued to June 1, 2004. The social workers status review report prepared for the hearing stated that K. had met with her therapist alone three times, and had discussed issues regarding visitation, but the therapist reported that K. remains steadfast in her wish not to have contact with her biological family. The therapist also reported that he was not opposed to having contact with and receiving correspondence from K.s family for K. The social worker recommended that the guardianship continue, that K. continue to receive counseling, and that the prior visitation order remain in effect.
Mother filed a response to the social workers status review report, again objecting to many of the social workers statements. She expressed the opinion that the foster father was inappropriate as the sole guardian for K.
At the June 1, 2004 hearing, the court agreed to the parents request to be able to send letters for K. directly to her therapist. The social worker stated that she was prepared to set up visitation between the parents and K., at the fathers request, should K. come to California for a visit that summer. The court informed mother that it was not in a position to change K.s placement as there was no motion to do so before it. The court requested that the social worker get copies of all of K.s reports for the parents, and the social worker agreed to do so. In adopting the social workers recommendations the court noted the objections of the parents and stated that the parents could send a letter directly to the therapist. Another review hearing was set for November 23, 2004.
Both the father and mother appealed from the findings and orders of the court at the June 1, 2004 hearing, separately arguing that the court abused its discretion in continuing the June 2003 visitation order unchanged in light of K.s resistance to visitation. Mother specifically argued that the court was required to take affirmative steps to ensure that the visitation order was complied with. Because there was nothing in the record before the court indicating that the Department would not follow through on its promise to set up a visit if K. came to California that summer, and the social worker informed mother and the court that she remained willing to arrange a visit by mother with K. at her therapists office in New York, we found that the juvenile court did not abuse its discretion in June 2004 by continuing the June 2003 visitation order. (In re K.B., supra, H027605.)
At a hearing held in October 2004, following a section 388 petition filed by the social worker, the court ordered that letters to K. from the mother and father be sent to the social worker rather than K.s therapist. Further post-permanency review hearings were held in January 2005, August 2005, and March 2006. At the March 7, 2006 hearing, the court ordered that placement and visitation for K. be continued unchanged. Mother appealed from that order and others. As she raised no issue as to the March 6, 2006 order in her brief, we affirmed the order. (In re K.B., supra, H030165.)
The social workers report for the scheduled September 2006 hearing stated that K. appears to be very happy and stable in the home of her legal guardian. K. has continued in counseling and has benefited from it. K.s therapist reported that K. has recently discussed her biological family. The father initiated a conversation on acceptance and forgiveness, and K. discussed these terms, though only in the most abstract manner. The New York social worker reported that K. received a present from mother and is talking to her therapist about it. K. continued to report that she did not want to return to California or to have contact with her biological family, but that she did read a letter from her sister. The guardian has arranged for a place for K. to keep the letters and gifts from her family should she change her mind about contact. The social worker recommended that K.s placement and visitation orders continue unchanged.
At the scheduled hearing on September 5, 2006, the court granted mothers request for a continuance in order to respond to the social workers report. In her written response, mother requested a "very clear order that spells out how and when and under what circumstances visitation is to take place." "Her family is ready, willing and able to come to New York to facilitate the visit, but it is imperative that the order and the resulting arrangements by the social worker and guardian be specific and non-ambiguous." "The present visitation order has proved unworkable and unsuccessful." Mother also requested "a specific order regarding written communication by the mother and the siblings with K[]."
The continued hearing was held on September 25, 2006. Counsel for the father stated that father intends to begin sending cards and letters to K. through the social worker so that K. will have them when she is ready to read them. Mother gave the mothers and K.s sisters cell phone numbers to counsel for K. so that K. could call them directly when she desired to do so. Counsel for the Department stated that she was "loathe to change anything" in the language of the current visitation order without a full hearing. The court stated that the order does provide for visitation, and that the last scheduled visitation did not occur because the family chose not to go to New York when they heard that K. would not see them. Because that is also what K. said before she agreed at the last minute to the last visit that went extremely well, the court found that the last visitation did not occur not because the order was unsuccessful but because "you chose not to go. I mean, you could have arrived in New York and she could have changed her mind, right." The court stated that visitation was not "stopped" as mother contended and that it was "not prepared to change the orders. If you would like to file a 388 [petition], which is a request for a change of orders based on a change of circumstances that are in the best interest of the minor, I would be more than happy to entertain such a request." The court adopted the findings and recommendations of the social worker, which continued the prior placement and visitation orders, but added an order that phone calls may be initiated by K.
Mother filed a timely notice of appeal.
DISCUSSION
The September 25, 2006 hearing was a post-permanency plan hearing under section 366.3, which provides for a review of the childs status every six months. (§ 366.3, subds. (d) & (e).) At post-permanency plan hearings the court is to determine the "continuing appropriateness and extent of compliance with the permanent plan for the child, . . ." (§ 366.3, subd. (e)(3).) At this stage in a dependency proceeding, the childs interest in permanency and stability takes priority. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) "A review of a permanent plan hearing is held to fulfill an `important purpose of dependency proceedings, which is `to provide children with stable, permanent homes. (In re Heather P. (1989) 209 Cal.App.3d 886, 890.)" (Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1145 (Maricela C.).)
Although a parent whose parental rights have not yet been terminated is entitled to receive notice of and participate in the review hearings, "[i]t shall be presumed that continued care is in the best interests of the child, . . ." (§ 366.3, subd. (e)(10); In re Marilyn H., supra, 5 Cal.4th at p. 310.) Therefore, unless the parent proves that further efforts at reunification are the "best alternative" for the child, the court will continue the permanent plan. (Ibid.) Post-permanency review hearings are not intended to constantly relitigate the necessity of continuing the childs permanent plan. (Maricela C., supra, 66 Cal.App.4th at p. 1145, In re Heather P., supra, 209 Cal.App.3d at p. 890.)
In this case, mother disputed the social workers report and argued that the visitation order in the permanent plan was unsuccessful. The court accepted mothers written materials and heard mothers statement as to why she thought the visitation order was unsuccessful. The court found that mother had not met her burden in showing that the visitation order was unsuccessful or in showing that the change she sought in the visitation order was in K.s best interest. The court invited mother to file a section 388 petition, and it is well recognized that the appropriate procedure to seek modification of a visitation order based on changed circumstances is a section 388 petition. (In re Heather P., supra, 209 Cal.App.3d at p. 891; In re Elaine C. (1990) 221 Cal.App.3d 809, 814; see also In re S.B., supra, 32 Cal.4th at p. 1297.)
We emphasize that the focus of the September 25, 2006 hearing was on permanence and stability for K. The evidence showed that K was in a stable placement and was doing well. The court recognized that its responsibility was to keep K. "stable and to treat the case as though this is her forever home," and to order "whatever needs to happen to make sure that home is safe and stable." Its prior orders provided for visitation with the child, and there was nothing in the record before the court indicating that visitation would not occur as ordered. As the juvenile court retains jurisdiction over the child and post-permanency plan review hearings are held every six months (§ 366.3, subds. (d) & (e)), mother continues to have an opportunity to request a different visitation order if a scheduled visitation does not occur as arranged. In addition, because mother has continuously expressed an interest in visitation with K., but understandably does not want to travel to New York if K. refuses to see her, she may file a section 388 petition seeking a change of the visitation order based on a change of circumstances.
DISPOSITION
The findings and orders of the September 25, 2006 hearing are affirmed.
We concur:
MIHARA, J.
MCADAMS, J.