Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JD05858
Bamattre-Manoukian, Acting P.J.
Joseph T., the father in this dependency proceeding, appeals from orders entered following a post-permanency review hearing in the juvenile court. Appellant contends that the court’s orders were invalid and must be reversed because the court-ordered continuation of two permanent plans for the child lacked a statutory basis. He also contends that the court failed to consider the child’s relationship with her adult siblings. We find that the juvenile court’s order continuing guardianship for the child with temporary placement in a treatment facility was not invalid and was supported by the record. We further find that appellant has no standing to raise an issue related to the child’s right to visit her adult siblings. Accordingly, we will affirm the juvenile court’s orders.
BACKGROUND
The following facts and procedural history are taken from this court’s decision following appellant’s appeal from the orders entered following a post-permanency review hearing held on September 29, 2004. (In re M.T. (Apr. 26, 2005, H028125) [nonpub. opn.].)
On our own motion, we take judicial notice of our prior decision in this matter.
Appellant’s four children were made Dependants of the court on October 14, 1994. At that time, M., the youngest of the four, was three years old. Petitions were sustained which alleged in part that the children had been subjected to unsanitary living conditions, the mother had a history of arrest and convictions for drug related offenses, and appellant had a history of alcohol abuse and related offenses. The children were placed with their maternal grandparents. Reunification services were ordered and unsupervised visitation with the children was permitted so long as appellant continued to participate in a rehabilitation program for alcohol abuse. On February 1, 1995, the children were returned to appellant on a trial basis and services were provided to him. Nine months later, on November 6, 1995, the children were again taken into protective custody when the sheriff responded to a disturbance at the home and found appellant passed out drunk. Further, the residence was a safety hazard due to broken furniture and glass items strewn about the house. The children were again placed with their maternal grandparents.
In August 1996, the children were removed from their grandparents when the grandparents left them in their mother’s care in violation of court orders. The children were placed in foster homes, and appellant was granted supervised visitation. On March 3, 1997, the court terminated reunification services for both parents and ordered long-term foster care for the children. At the time, appellant was serving a one-year jail sentence in Amador County for drunk driving.
M. was removed from her foster home following reports of physical abuse by the foster mother and was placed with paternal relatives. A supplemental petition under Welfare and Institutions Code section 387 was filed July 30, 1997, alleging that the paternal relatives were no longer willing to care for M. due to her behavior and special needs. M. was placed on an emergency basis at the East field Ming Quong (EMQ) shelter, and the Department sought to expand placement options for her to community care facilities and out-of-county placements. The hearing on the petition was held on September 15 and October 16, 1997. Appellant finished serving a jail term just prior to the completion of the hearing. The social worker testified that M. presented difficult challenges to the EMQ staff because of her violently aggressive behavior. The social worker further testified that, based on her conversations with appellant, appellant lacked understanding as to how his alcohol abuse had affected the lives of his children. She recommended that visitation for appellant start out once per month, supervised, and that the duration or frequency be increased as the circumstances warranted, in her discretion. The court adopted the social worker’s recommendations and expanded the placement order as requested to include community care facilities and out-of-county placements.
All further statutory references are to the Welfare and Institutions Code.
After a review hearing on April 8, 1998, the juvenile court found that M. continued to not be a proper subject for adoption and that there was no one willing to accept legal guardianship. The court ordered the Department to facilitate her placement in a community care facility, and ordered supervised visits with the parents once a month. On July 30, 1998, M., then seven years old, was discharged from EMQ and was placed in a foster home. After a review hearing on September 13, 1999, the juvenile court terminated visitation by appellant, finding that it was detrimental to the physical and/or emotional well being of M., but continued other prior orders.
On August 16, 2000, M. was removed from her foster home and placed in EMQ at the request of the social worker, who reported that M.’s foster placement had failed due to M.’s aggressive behavior, acting-out behavior and outbursts. M. returned to her foster home on June 18, 2002. On July 31, 2002, the juvenile court suspended visits between M. and her birth family on recommendation of M.’s therapist, and then ordered visitation discontinued after a hearing on August 16, 2002. On July 28, 2003, M.’s foster mother filed an application for de facto parent status, and the juvenile court granted the application after a hearing on September 3, 2003.
After a review hearing on October 3, 2003, the juvenile court set the matter for a section 366.26 hearing on January 27, 2004. The social worker’s report for the October 3, 2003 hearing had recommended that the permanent plan for M. be changed to a legal guardianship with M.’s foster mother. On January 27, 2004, the court continued the matter to March 29, 2004, as appellant was in custody in Amador County and was not transported for the hearing. At the continued hearing, appellant testified and the court admitted into evidence the social worker’s report for the hearing, an addendum report, and the report of the court-designated child advocate. The court ordered a plan of legal guardianship for M., who was then almost 13 years old. The formal orders establishing guardianship were filed May 4, 2004. Included was an order that “[t]here shall be no physical contact or communication of any kind by . . . the father . . . because it is detrimental to the physical and/or emotional well-being of the child.” The court also set a review hearing pursuant to section 366.3 for September 29, 2004.
Appellant filed an appeal from the order of guardianship, and his sole argument on appeal was that the juvenile court committed reversible error under the Indian Child Welfare Act (ICWA). This court found that the record in appellant’s prior appeal from the juvenile court’s disposition order (In re Joseph T. (Apr. 14, 1995, H013336 [nonpub. opn.]) supports a finding that the ICWA notice provided in 1994 in the circumstances of this case was sufficient. (In re M.T. (Nov. 9, 2004, H027106, H027282) [nonpub. opn.].)
The social worker’s report for the September 29, 2004 review hearing stated that M. continued to reside with her guardian and recommended that the placement continue with “wraparound” services. M. expressed no desire to visit with appellant, and her therapist recommended no visits between M. and her biological family members other than one sibling. Appellant was incarcerated at Soledad State Prison with a scheduled release date in the summer of 2005. The social worker recommended that the no-contact order between the child and father continue.
Appellant was not present for the September 29, 2004 hearing but was represented by counsel. Counsel requested that the no-contact order be amended to authorize letter contact. The court stated that it found nothing in the social worker’s report to support the request, and made the findings and orders as recommended in the report. Appellant filed an appeal from the orders, and contended on appeal that the juvenile court erred in failing to insure that the ICWA notice requirements were met and in refusing to amend the no-contact order. This court found that, although the court failed to make any ICWA findings at the hearing, it subsequently made those findings and the record supported the findings. We further found that the juvenile court did nor err or abuse its discretion in continuing the no-contact order. Accordingly, we affirmed the September 29, 2004 findings and orders. (In re M.T., supra, H028125.)
A supplemental petition under section 387 was filed June 15, 2005. M. was placed on a section 5150 hold on May 3, 2005, was released to respite care on May 13, 2005, and was placed in protective custody by the supervising social worker on June 13, 2005, because her guardian had requested her removal due to her out-of-control behavior. Because of the failed placements, the Department was seeking to expand placement options for M. to include a higher level care facility “in order to adequately meet [M.’s] needs.”
The hearing on the section 387 petition was held on August 22, 2005. The social worker’s report for the hearing and attachments were admitted into evidence. The report stated that M. was placed at Rebekah Children’s Services (RCS) on July 7, 2005, but ran away on July 14, 2005, for a short period of time, then ran away again on August 8, 2005, and was gone for four days. M.’s guardian maintained regular telephone contact with M., the RCS staff, and the social worker, and continued to show her desire to have M. returned to her. Appellant had recently been released from prison, and had stated that although he was not requesting visitation with M., he would like to have the opportunity to do so in the future. The social worker recommended that M. continue her placement in the community care facility and that her guardian receive services. The guardian submitted the matter on the petition and report.
The court found that M. was “suffering severe emotional damage as indicated by extreme anxiety, depression, withdrawal or untoward aggressive behavior toward self or others, and there [were] no reasonable means by which [her] emotional health may be protected without removing [her] from the physical custody of . . . her . . . guardian.” Therefore, the court continued M. “under the care, custody and control of the Department,” with placement in a community care facility, and with services to M.’s guardian “from the Permanent Permanent [sic] Living Arrangement.” M. and her guardian were to participate in family therapy, and the guardian was allowed unsupervised visits a minimum of two times per month. One of M.’s siblings was allowed supervised visits a minimum of once a month, but there was to be no physical contact or communication of any kind between M and appellant and M.’s other siblings. The next review hearing was set for February 21, 2006.
The social worker’s report for the February 21, 2006 hearing stated that M. was in the RCS residential facility, being provided mental health treatment and support. The guardian and M. “visit on a regular basis and [the guardian] is involved in M[.]’s treatment at RCS.” For several months, M. was spending every weekend with her guardian, and she had an extended visit over the Thanksgiving and Christmas holidays. All visits were suspended following the Christmas visit, but the weekend visits were scheduled to resume as of February 4, 2006. The guardian had stated “her strong desire” to have M. returned to her care within six months. Appellant had requested written correspondence with M., and stated that he would like to visit M. “in the near future.” The guardian and M.’s therapist have agreed that written correspondence between M. and appellant “would be appropriate at this time.” The social worker recommended that M. continue her placement in the community care facility, with the hope that “she will be able to transition home to the care of her [guardian] within the next six months.”
On February 21, 2006, the court continued the matter at the request of counsel for M. At the continued hearing on March 6, 2006, the Department submitted the matter on the social worker’s report and recommendation to continue the guardianship. Counsel for the guardian also submitted the matter and appellant’s counsel stated, “I have no comments.” Counsel for M. stated that M. was enjoying spending almost every weekend with her guardian, that M. very much wanted to return to the guardian by the summer, and that M. was very motivated to do what needed to be done to accomplish that. The court continued all previous orders, with the exception of allowing written communication between appellant and M., and set the next review hearing for September 5, 2006.
The social worker’s report for the September 5, 2006 hearing stated that M. successfully completed the residential treatment program at RCS, and was placed in another group home on August 18, 2006. Appellant began writing M. immediately after the last hearing, and M. has been writing back. M. and her guardian were having home visits every other weekend, and the guardian has been consistently involved in M.’s treatment, including participating in family therapy with M. The guardian continues to express interest in having M. returned to her care. The social worker recommended continued legal guardianship with placement at the community care facility, and with the hope that M. would be ready to return to the care of her guardian within the following six to 12 months.
Appellant was not present at the September 5, 2006, hearing, but M. and her guardian were present and all were represented by counsel. The Department asked that the prior contact order regarding appellant continue, and counsel for appellant stated “Submitted, Your Honor,” when the court asked, “any comments?” Counsel for M. reported M.’s progress and requests for continued services. After asking about visits and therapy with the guardian, the court stated: “Okay. [¶] I’m satisfied with the way things are right now, and I’m hoping that they’ll get better and M[.] will end up being able to go live with her mom/guardian. [¶] I’m adopting the recommendations. And we’ll set a review in six months.”
The social worker’s report for the scheduled March 5, 2007 hearing stated that M. was placed in a different group home on November 27, 2006, after being discharged from her prior placement due to her abusive and destructive behavior. Although M. has run away for about one hour a few times from the group home, she has stated that she did not want to be removed from it. M. and appellant have continued their correspondence. Appellant has expressed support of M.’s “relationship with her legal guardian and has consistently stated . . . that he wants M[.] to be able to return to her care.” M. and her guardian continue to have home visits every other weekend, and M. spent two weeks over the Christmas holiday with her guardia N.M. receives “wraparound” services through EMQ, which helps with the transition from her guardian’s home to her group home. The social worker recommended continued legal guardianship for M. with placement in a community care facility, and with the hope that M. would be ready to return to her guardian’s care within six months. The social worker further recommended that the prior orders that no contact or communication of any kind occur by the mother and the two adult siblings continue “because it is detrimental to the physical and/or emotional well-being of the child.”
Neither appellant nor M. were present at the March 5, 2007 hearing, but both were represented by counsel. Counsel for the Department stated that, in the written recommendations, “both the guardianship box and the planned permanent living arrangement box are checked because there is a legal guardian although M[.] is currently residing in a long-term planned permanent living arrangement.” Counsel for appellant stated that appellant wishes to have visits with M., but agreed to “be patient based on what’s best for M[.]” Counsel for M. stated that M. enjoys her correspondence with appellant “and would actually like to have a phone call with him on her 16th birthday.” The court stated that it would “let the social worker make that decision.” It otherwise adopted the social worker’s recommendations and set another review hearing for September 5, 2007.
Appellant filed a timely notice of appeal from the court’s March 5, 2007 findings and orders.
DISCUSSION
Preliminarily, we note that M.’s parents were never married and paternity has never been established. However, the juvenile court granted appellant reunification services at the outset of the case, and returned M. and her siblings to his care in 1995. Appellant has always maintained that he is M.’s biological father, M. has acknowledged appellant as her father, and M.’s mother has never denied that appellant is M.’s father. As the juvenile court has treated appellant has M.’s presumed father, the Department does not challenge appellant’s right to appeal the juvenile court’s March 5, 2007 findings and orders.
The March 5, 2007 hearing was a post-permanency plan hearing under section 366.3, which provides for a review of the child’s status every six months. (§ 366.3, subds. (a), (d) & (e).) At the review hearings the court is to determine the continuing necessity for and appropriateness of the child’s placement, the continuing appropriateness and extent of compliance with the permanent plan for the child, the extent of the agency’s compliance with the plan, and the adequacy of services to the child. (§ 366.3, subds. (e)(1), (3), (4) & (6).) A parent whose parental rights have not yet been terminated is entitled to receive notice of and to participate in the review hearings. (§ 366.3, subd, (e)(10).) Thus, a parent can challenge departmental proposals and proposed court modifications. (In re Kelly D. (2000) 82 Cal.App.4th 433, 438.) However, “[i]t shall be presumed that continued care is in the best interests of the child, unless the parent or parents prove, by a preponderance of the evidence, that further efforts at reunification are the best alternative for the child.” (§ 366.3, subd. (e)(10); In re Marilyn H. (1993) 5 Cal.4th 295, 310.) This is because the post-permanency review procedure allows the child permanency and the department the opportunity to provide the child with services, rather than constantly relitigating the necessity of continuing the child’s permanent plan. (Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1145; In re Heather P. (1989) 209 Cal.App.3d 886, 890.)
The court’s orders following a review hearing are reviewed for abuse of discretion. “ ‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason.’ ” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; see also In re Robert L. (1993) 21 Cal.App.4th 1057, 1066.) We may not disturb the court’s decision unless the court “ ‘ “has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations.]” ’ [Citations.]” (In re Stephanie M., supra, 7 Cal.4th at p. 318.)
The juvenile court ordered that guardianship continue, with placement of M. in a community care facility, and with the hope that M. would be ready to return to her guardian’s care within six months. Appellant contends that the court ordered that the guardianship continue and that a planned permanent living arrangement be provided for the child, with placement in a community care facility. He argues that these orders are “in conflict. More importantly, multiple permanent plans in place simultaneously are not authorized anywhere in the statutory scheme for dependent minors. The trial court acted in excess of its jurisdiction in making these orders and thus the orders are invalid.”
At the March 5, 2007 hearing, counsel for appellant informed the court that appellant was unable to attend the hearing, that appellant wants to have visitation with M., and that appellant wanted what’s best for M. Counsel for appellant did not assert that the recommended orders put into place conflicting simultaneous permanent plans which were not authorized anywhere in the statutory scheme. Neither did counsel for appellant assert that the recommended orders would be invalid as in excess of the juvenile court’s jurisdiction.
“ ‘ “ ‘An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the [trial] court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.’ [Citation.]” [Citations.] [¶] ‘Moreover, it would be inappropriate to allow a party not to object to an error of which the party is or should be aware, “ ‘thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.’ [Citation.]” [Citation.] [¶] ‘Appellate courts have applied the waiver doctrine in dependency proceedings in a wide variety of contexts, . . .’ [Citation.]” (In re Carrie W. (2003) 110 Cal.App.4th 746, 755 (Carrie W.).)
Appellant waived his objection to the order continuing guardianship for M., with placement in a community care facility, by not objecting to the order below. Even if we were to find no waiver, we would still conclude that the court’s order was not in excess of its jurisdiction.
Prior to terminating a legal guardianship ordered as a child’s permanent plan, the juvenile court must order the social worker to prepare a report which includes “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.” (§ 366.3, subd. (b).) The social worker’s report must also “identify recommended family maintenance or reunification services to maintain the legal guardianship and set forth a plan for providing those services.” (Ibid.) Rather than terminating a legal guardianship, the court may “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)(3)(B).)
“[W]here a guardianship has been created by the juvenile court in a dependency hearing, the legal guardian is not entitled to reunification services and no finding that adequate services were provided need be made prior to termination. [Citation.] Even so, the Legislature intended that the juvenile court at least consider whether services are available to ameliorate the need for modification of the permanent plan. [Citation.] This is consistent with the overall intent of the dependency scheme, which is to protect children from abuse or neglect and to provide permanent, stable homes if those children cannot be returned home within a set period of time. [Citation.] The statutory scheme identifies the legislative preferences for providing permanent and stable homes—adoption, guardianship, and long-term foster care. Further, the statute establishes a presumption favoring guardianship over long-term foster care (§ 366.26, subd. (c)(4)) because guardianship is recognized as a more stable placement. [Citation.]” (In re Jessica C. (2007) 151 Cal.App.4th 474, 483 (Jessica C.).)
“Unquestionably, the juvenile court is in the best position to decide the means most likely to lead to stability and permanency in [a child’s life]; however, it can do so only when it has sufficient information. The Legislature recognized that if the juvenile court’s initial choice for a permanent plan of guardianship fails to serve a child’s best interests, before moving to a less stable placement, the court should consider whether there is a way to preserve the guardianship. Doing so includes providing services to the legal guardian if necessary. Section 366.3 requires that this information be given to and considered by the juvenile court and, by implication, authorizes that identified services be provided if they are likely to prevent termination of the guardianship. (See also § 301 [authority for providing all available child welfare services].)” (Jessica C., supra, 151 Cal.App.4th at p. 484.)
In this case, the social worker recommended that guardianship continue, but that M. be temporarily placed in a community care facility in order meet her therapeutic needs. It was hoped that M. would be able to return to her guardian’s care within the next six months. The social worker also recommended that wraparound services be provided the guardian in order to help preserve the guardianship. Thus, section 366.3 authorizes that these services be provided M. and her guardian, and the juvenile court did not exceed its jurisdiction in making the orders it did. (Jessica C., supra, 151 Cal.App.4th at p. 484.)
Appellant cites Carrie W., supra, 110 Cal.App.4th 746, in support of his position that it is unlawful to have two coexisting permanent plans. In Carrie W., reunification services were terminated for the parents of four children and the juvenile court established legal guardianship as the permanent plan for the children. Their grandmother was appointed as their legal guardian, and the children remained dependent children of the court. (Id. at p. 749.) After a number of years, in August 2000, the oldest child was transferred to a higher level of care outside the grandmother’s home but guardianship continued as to all four children. In October 2000, following a hearing on a supplemental petition, the three youngest children were removed from the grandmother’s custody and placed in a foster home. The grandmother was granted services and visitation. In August 2001, following a review hearing, the next-to-the-youngest child was returned to the grandmother and reunification services were continued for the other three. (Id. at p. 750.) In November 2002, the court held three hearings seriatim: a family maintenance review for the next-to-the-youngest-child; a section 366.26 hearing for the oldest two children; and a section 366.22 permanency review hearing for the youngest child. (Id. at pp. 752-753.) The court ordered continued family maintenance as to the next-to-the-youngest child, but set aside the guardianship and ordered a permanent plan of “ ‘planned permanent living arrangement’ ” (id. at p. 753) as to the youngest child and long-term foster care for the two oldest children. (Id. at p. 752.) Grandmother appealed from the order terminating her guardianship, and the appellate court found it had to “determine if the law prohibits the coexistence of a guardianship and long-term foster care.” (Id. at p. 757.) The court decided that the law did prohibit the coexistence of a guardianship and long-term foster care.
“The statutes are clear that you cannot have two long-term permanent plans. . . . Thus long-term plans of long-term foster care and legal guardianship established in dependency proceedings cannot coexist. The guardianship here is purely a creature of dependency and was created as part of a long-term plan. Dependency was never dismissed, so the guardianship did not have a life of its own outside of dependency. We find no statutes allowing the continuance of a guardianship existing only as part of a long-term plan concurrent with long-term foster care, and grandmother has not provided any convincing authority to show otherwise.” (Carrie W., supra, 110 Cal.App.4th at p. 760.)
In the case before us, the permanent plan for M. is, and continues to be, guardianship. Unlike the court’s orders at issue in Carrie W., the orders at issue here were made following a section 366.3 review hearing, and there was no attempt to adopt a new permanent plan for M. However, M. currently needs therapeutic services beyond what her guardian can provide. Thus, she has been temporarily removed from her guardian’s home and placed in a series of group homes. None of the group-home placements was intended to be long-term, or anything more than temporary, and the social worker and M.’s guardian continue to hope that M. can soon be returned to her guardian’s care. Carrie W. is distinguishable because none of the three children in that case who were not returned to the grandmother before the November 2002 hearing were ever expected to return to her care. And here, during M.’s temporary placements, M.’s guardian has continued to be her long-term caregiver. M. spends at least every other weekend in the home of her guardian, and spends extended periods of time in the home of her guardian during the holidays. M.’s guardian participates in her therapy, makes educational choices for her, and remains in constant contact with all of M.’s service providers. The wraparound services that M.’s guardian is receiving are to help with M.’s transition between the guardian’s home and M.’s group home. Thus, contrary to appellant’s contention, the trial court’s orders continuing M.’s guardianship with placement in a community care facility do not constitute orders for two simultaneous long-term placements such as the grandmother in Carrie W. was advocating.
Appellant also contends that the juvenile court failed to consider M.’s relationships with her adult siblings, as the social worker’s report provides no information about why contact with them would be detrimental to M.’s well being. Even if we were to find that appellant has not waived the issue by failing to raise it below (Carrie W., supra, 110 Cal.App.4th at p. 755), we would find that appellant has no standing to raise an issue on appeal related to M.’s right to visit her adult siblings. (In re Frank L. (2000) 81 Cal.App.4th 700, 703; In re Carissa G. (1999) 76 Cal.App.4th 731, 734, 736-737.)
DISPOSITION
The March 5, 2007 orders are affirmed.
WE CONCUR: MIHARA, J., duffy, J.