Opinion
NOT TO BE PUBLISHED
Appeals from an order of the Superior Court of Orange County, Nos. DP014493 & DP014494 Douglas Hatchimonji, Judge.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant O.H.
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant C.H.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minors.
OPINION
FYBEL, J.
INTRODUCTION
O.H. (Father) and C.H. (Mother) appeal from the juvenile court’s order denying their request that their daughters, S.H. (now 18 years old) and A.H. (now 16 years old), be returned to their care, following a contested postpermanency plan review hearing, conducted under Welfare and Institutions Code section 366.3. (All further statutory references are to the Welfare and Institutions Code.) Father and Mother contend the juvenile court erred by relying solely on S.H.’s and A.H.’s expressed wishes to remain in their respective long term foster care placements.
A juvenile court properly considers the child’s wishes in evaluating a parent’s request for the return of the child to his or her care; the child’s wishes, however, are not the only factor to be considered. Here, the juvenile court’s explanation of its ruling denying Father and Mother’s request suggested it either failed to exercise its discretion to determine best interests by completely deferring to S.H. and A.H., or abused its discretion by concluding it was in S.H.’s and A.H’s best interests to remain in their current placements based solely on their expressed preferences.
We therefore reverse the order and remand the matter to the juvenile court to reconsider Father and Mother’s request, exercise its discretion, and explain the basis of its decision in light of all the legal principles described in this opinion. We are not ordering the juvenile court to grant Father and Mother’s request, and express no opinion on the proper outcome after proper analysis of the facts and law.
BACKGROUND
In February 2007, Father and Mother pleaded nolo contendere to a juvenile dependency petition filed in December 2006, which, as later amended, alleged G.H., S.H, and A.H. came within the provisions of section 300, subdivision (a) (serious physical harm) and subdivision (b) (failure to protect). The amended petition alleged Father and Mother have had “an ongoing conflictual relationship,” which has involved “incidents of verbal and physical domestic violence in the presence of the children.” On “numerous unspecified occasions,” Father hit Mother, pulled her hair, and threw objects at her, causing her injury. Father was convicted of inflicting corporal injury on a spouse (a misdemeanor) in October 1996, and was arrested in November 2006 for hitting Mother and pulling her hair, which caused her to sustain multiple bruises and other injuries that required medical attention. On November 30, 2006, Mother “unknowingly violated a restraining order” against Father, and thus failed to protect her children, by allowing Father to enter the family home following his release from jail. The amended petition further alleged that “approximately two years ago,” Father hit S.H. on her left ear with an open hand.
G.H turned 18 years old before the order at issue in this appeal was made and dependency jurisdiction was terminated as to her; she is therefore not a party to this appeal.
The juvenile court found the allegations of the amended petition true by a preponderance of the evidence. As stipulated by Father and Mother, the court declared G.H., S.H., and A.H. dependent children of the juvenile court, found pursuant to section 361, subdivision (d) that reasonable efforts had been made to prevent or eliminate the need for removal of the children from their home, and vested custody of the children with the Orange County Social Services Agency (SSA) to serve their best interests. The court approved a visitation plan and a case plan which included random drug testing.
In May 2008, as stipulated by Father and Mother, the juvenile court terminated reunification services, found S.H. and A.H. were not adoptable, and ordered that they remain in long term foster care.
In a status review report dated November 21, 2008, filed in advance of the first postpermanency plan review hearing, SSA reported Father and Mother were working full time and the family had participated in conjoint counseling. Father and Mother moved into a four bedroom house. SSA further reported the “parents have been attending their counseling session without fail.” S.H. and A.H. were placed together in a long term foster home and G.H. was placed in a separate long term foster home. The placements were reportedly “very good”; G.H. said she did not wish to return to her parents’ care. S.H. was “on the fence” about returning to her parents and A.H. said that she would return to her parents if S.H. returned home too. The report stated G.H., S.H., and A.H. did not “trust the parents in terms of the financial situation.” The report stated, however: “The undersigned[’s] position is that if any of the children want to go home the undersigned will try to make that happen.”
SSA recommended, in the report dated November 21, 2008, that the court order, inter alia, the continuance of the children’s dependency status, find their placements appropriate, and set the matter for a periodic review hearing in six months. At the end of 2008, Father and Mother stipulated, inter alia, in accordance with G.H.’s, S.H.’s, and A.H.’s wishes, that continued supervision was necessary and that the court should adopt SSA’s recommendation. The juvenile court accepted Father’s and Mother’s stipulation and adopted SSA’s recommendation; the court set the matter for a postpermanency plan review hearing in six months.
SSA filed a status review report dated June 1, 2009. The report stated G.H, S.H., and A.H. were all separately placed and all three were “doing well in their respective placements.” The report further stated, “[t]he children have unmonitored visits with their parents and see the parents several times a month. There have not been any negative reports of the visits, only that the girls sometimes do not want to talk to or see their parents because of what they refer to as ‘drama.’” G.H. and S.H. expressed their wish not to return home to their parents’ care “at any point in the future”; A.H stated she did not want to “close the door” on the possibility of returning home to her parents, but did not wish to return at this point in time. The report stated the parents “have completed the services previously ordered by the Court” and both work full time.
SSA recommended the court order that the existing orders remain in effect, find the placement and permanent plans appropriate, find satisfactory compliance with the permanent plan, and schedule a postpermanency plan review hearing. In the addendum report dated June 1, 2009, SSA additionally recommended that a “[t]ermination [r]eview” hearing be scheduled for G.H. in light of her reaching the age of majority.
The addendum report, dated July 14, 2009, stated in part: “On June 30, 2009 the undersigned interviewed both S[.H.] and A[.]H[.]. The undersigned asked the girls if they want to return home to live with their parents. The child S[.H.] said, ‘I just want things to stay the same. I don’t think I’ll ever want to go home with my parents.’ In response to the question of returning home, the child A[.H.] said, ‘No, not right now.’ When asked what her reasons for not returning home [were], A[.H.] said, ‘Some things haven’t changed. Little things cause big problems. I don’t know if I will ever want to go home.’ [¶] Based on the girls’ responses, it is clear that they do not wish to return home to live with their parents.”
Mother submitted a section 388 petition requesting the permanent plan of long term foster care be changed in light of Father and Mother’s liberal unmonitored visitation (which included overnight visits) and because Father and Mother had completed their case plans. She requested an order returning S.H. and A.H. to Father and Mother’s care under a plan of family maintenance. Father supported Mother’s petition “100 percent.”
Mother filed a declaration in support of her section 388 petition. In the declaration, Mother expressed how much she and Father regret the incident that separated the family, that there “has not been one single minor incident of any sort at all” between her and Father since, and that they believe their home is now the best environment for their children. Mother addressed their financial struggles and stated she and Father live in a four bedroom house with plenty of room for S.H. and A.H. Mother stated she and Father succeeded in meeting all of SSA’s criteria. She expressed her and Father’s “enduring love” for their children and how they have “never stopped wanting, trying to be with, or loving [their] children.” She described her and Father’s regular and positive interaction with S.H. and A.H. and how they are “allowed to come and go in [their] home as they please.” Mother expressed concern that S.H. and A.H. have been misled, stating that she overhead A.H tell Father that it did not matter whether she kept up her grades because she was going to go to college free, reflecting an attitude that the “‘system’ will take care of [her].”
The juvenile court set the postpermanency plan review hearing as a contested hearing at Mother’s request. At that hearing, the court admitted into evidence SSA’s June 1 and July 14, 2009 reports. Pursuant to Father’s and Mother’s stipulation, the court also admitted into evidence the declaration Mother had submitted in support of her section 388 petition; Mother withdrew her petition. The parties submitted on this documentary evidence.
Following argument, the court denied Father and Mother’s request that S.H. and A.H. be returned home. Based on the record before us, the court’s denial appears to be solely based on S.H.’s and A.H.’s expressed desire to remain in their long term foster care placements. The court found, inter alia, by a preponderance of the evidence, that (1) continued supervision was necessary; (2) S.H.’s and A.H.’s placements were necessary and appropriate; (3) the permanent plan of placement with a specific goal of a less restrictive foster care setting was appropriate and the permanent plan; (4) pursuant to section 366.3, the services provided were adequate; and (5) there had been substantial compliance with the permanent plan and case plan. The court thus adopted SSA’s recommendation as contained in the status review report dated June 1, 2009, and set the matter for a further postpermanency plan review hearing on January 22, 2010.
Father and Mother each appealed from the juvenile court’s order.
DISCUSSION
Father and Mother argue the juvenile court erred by denying their request for an order returning S.H. and A.H. to Father and Mother’s care under a plan of family maintenance solely because S.H. and A.H. expressed their preference to remain in their long term foster care placements. As discussed in detail post, we are not convinced the juvenile court determined S.H.’s and A.H’s best interests after considering all the pertinent factors, but instead denied the request based solely on S.H.’s and A.H.’s expressed wishes. We therefore remand the matter to the juvenile court to reconsider Father and Mother’s request, exercise its discretion, and explain the basis for its decision after considering the legal principles discussed post.
I.
Postpermanency Plan Review Hearing Under Section 366.3
Postpermanency plan review hearings are governed by section 366.3. Section 366.3, subdivision (d) provides in pertinent part: “If the child is in a placement other than the home of a legal guardian and jurisdiction has not been dismissed, the status of the child shall be reviewed at least every six months.... The review of the status of a child for whom the court has not ordered parental rights terminated and who has not been ordered placed for adoption may be conducted by the court or an appropriate local agency.”
Section 366.3, subdivision (h) provides in part: “At the review held pursuant to subdivision (d) for a child in long-term foster care, the court shall consider all permanency planning options for the child including whether the child should be returned to the home of the parent.” Section 366.3, subdivision (e) sets forth a list of issues the court shall determine at the postpermanency plan review hearing, which includes a determination as to “[t]he continuing necessity for, and appropriateness of, the placement” (§ 366.3, subd. (e)(1)); “[t]he extent of the agency’s compliance with the child welfare services case plan in making reasonable efforts either to return the child to the safe home of the parent or to complete whatever steps are necessary to finalize the permanent placement of the child” (§ 366.3, subd. (e)(4)); and “[t]he likely date by which the child may be returned to, and safely maintained in, the home, placed for adoption, legal guardianship, or in another planned permanent living arrangement” (§ 366.3, subd. (e)(8)).
At the postpermanency plan review hearing, “[i]f the reviewing body determines that a second period of reunification services is in the child’s best interests, and that there is a significant likelihood of the child’s return to a safe home due to changed circumstancesof the parent, pursuant to subdivision (f), the specific reunification services required to effect the child’s return to a safe home shall be described.” (§ 366.3, subd. (e)(4), italics added.) The parent carries the burden of proof of showing that further efforts at reunification are the best alternative to overcome the presumption that continued care is in the child’s best interest. (§ 366.3, subd. (f).) Section 366.3, subdivision (f) provides in part: “It 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. In those cases, the court may order that further reunification services to return the child to a safe home environment be provided to the parent or parents up to a period of six months, and family maintenance services, as needed for an additional six months in order to return the child to a safe home environment.” Rule 5.740(b)(7) of the California Rules of Court similarly requires: “The court must continue the child in foster care unless the parents prove, by a preponderance of the evidence, that further efforts at reunification are the best alternative for the child. In those cases, the court may order reunification services for a period not to exceed 6 months.”
In In re Dakota H. (2005) 132 Cal.App.4th 212, 226, the appellate court stated: “[U]nder section 366.3, subdivision (e), the burden and standard of proof on the parent in a proceeding under this section is the same as under section 388.... Once the court determines the child cannot be returned to the parental home, the burden shifts to the parent to prove changed circumstances.”
II.
Governing Legal Principles in Determining a Child’s Best Interests
Father, Mother, and SSA agree that in determining a child’s best interests, the following three factors set forth in In re Kimberly F. (1997) 56 Cal.App.4th 519, 532 should be considered: “(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.”
It is also well established “the preference of a minor child is not determinative of his or her best interests.” (In re Melissa S. (1986) 179 Cal.App.3d 1046, 1058; see In re Aljamie D. (2000) 84 Cal.App.4th 424, 432 [“While a child’s wishes are not determinative of her best interests, the child’s testimony that she wants to live with her mother constitutes powerful demonstrative evidence that it would be in her best interest to allow her to do so”]; In re Michael D. (1996) 51 Cal.App.4th 1074, 1087 [same].)
III.
We Reverse the Juvenile Court’s Order and Remand to the Juvenile Court for Its Reconsideration of Father and Mother’s Request, Exercise of Discretion, and Explanation of the Basis of Its Decision in Light of All the Legal Principles Described in This Opinion.
At the postpermanency plan review hearing, the juvenile court had before it SSA’s reports which showed Father and Mother had completed services and both worked full time. SSA further reported S.H. and A.H. “have had regular unmonitored visitation with the parents during the past period of supervision. The girls communicate and visit with their parents according to their own comfort level. They see their parents approximately one time a week in addition to seeing them at church on Sunday. All visitation is reported as going well.” The reports also stated S.H. and A.H. were doing well in their respective placements and did not wish to return to their parents’ home. A.H., however, stated she did not want to “close the door on the possibility of returning home with her parents.”
The court also had before it Mother’s declaration which explained (1) the problems that led to dependency jurisdiction no longer exist, (2) Father and Mother are financially stable and live in a four bedroom house, (3) they have completed court ordered services, and (4) they have enjoyed liberal unmonitored visits with S.H. and A.H. in their home. Mother expressed her and Father’s love for the children and described their efforts to secure their return to their care.
After hearing argument, the juvenile court stated it was impressed by Mother’s sincerity and desire to communicate the love and care she and Father have for S.H. and A.H. Nevertheless, the court denied their request. The juvenile court explained its ruling as follows: “The representations by the minors’ counsel as well as the reports before the court indicate that at this time the minors do not desire to return home, return to the home of the parents on a permanent basis. The reasons for that, whether it is rooted in monetary issues or trust issues or whatever they may be, I think when the day is done there’s different perceptions, real and otherwise, that cause that to happen. [¶] The other issue I think that is important is both of these young ladies are exactly that, they are young ladies, mature young ladies who are on the verge of adulthood, and they are learning about making life choices and life decisions now. They will continue to make those life choices and life decisions as time goes by. They are, from the reports before the court, they are doing well, school is great.... The two young ladies are smart, and I think that it’s important to acknowledge that and give to both of these young ladies the respect that their age as well as their achievements deserve. [¶] I think that it is important to honor their desires regarding their lives because of their achievements and what they’ve accomplished in their lives right now. And I think that respecting and honoring a person’s desires when they come from a place that these two young ladies come from is important in the long run from the perspective of what is in their best interests, understanding that achievement and working hard merits respect, is important in the perspective I think of their best interests.” (Italics added)
The court further stated, “mother is not in a position, father is not in a position to force a resolution on these two young ladies, and this court is not going to do that either. I’m not going to force a resolution. I believe that it is excellent that this family apparently has a relationship that they are-that they have a relationship and that the relationship is in the process of evolution. [¶] Whether that happens, and it sounds like it will continue to evolve, and although these young ladies may pass over that magic line into adulthood soon, it doesn’t mean that their relationship with their parents can’t continue to evolve and to grow and to strengthen and to heal.” (Italics added.)
The juvenile court also stated it was not going to “force the parents and these minors to go through conjoint counseling” but would authorize funding for counseling should it be desired. The court stated: “So with respect to the periodic review before the court, the court is going to adopt the recommendation of the social service agency [recommending the continuation of long term foster care], approve both the case plan and visitation plan described in the June 1, 2009 report for the reasons that I have stated. I’m not going to order the return of the minors.” (Italics added.)
The California Supreme Court in In re Julian R. (2009) 47 Cal.4th 487, 499 stated, “when ‘a statement or reasons is not required and the record is silent, a reviewing court will presume the trial court had a proper basis for a particular finding or order.’” (Italics added.) Here, the juvenile court was not required to give a statement of reasons for denying Father and Mother’s request. Nevertheless, the juvenile court did explain its ruling and its explanation strongly suggested the court either failed to exercise its discretion in determining S.H.’s and A.H.’s best interests by deferring to them as a reward for their accomplishments in school and otherwise, or abused its discretion by determining it was in S.H.’s and A.H’s best interests to remain in their current placements based solely on S.H.’s and A.H’s expressed preferences.
The court’s comments reflect the following analysis: (1) S.H. and A.H. were impressive as to their maturity, ages-described as “on the verge of adulthood,” academic success-“school is great,” intelligence, and achievements, as documented in SSA’s reports; (2) S.H. and A.H. did not wish to return home whether the reasons were “rooted in monetary issues or trust issues” or “whatever they may be”; (3) they are learning about making life choices and “will continue to make those life choices and life decisions as time goes by”; and (4) S.H. and A.H. have earned the right to decide what was in their best interests because “it is important to honor their desires regarding their lives because of their achievements and what they’ve accomplished” to reinforce “that achievement and working hard merits respect.” The court candidly admitted its deference to S.H. and A.H. and their wishes by stating: “I’m not going to force a resolution.”
Whether relying solely on S.H.’s and A.H.’s wishes or deferring entirely to them, the juvenile court erred. As discussed ante, although evidence of a child’s wishes should be considered in determining the child’s best interests, the child’s wishes are not determinative of his or her best interests. (In re Aljamie D., supra, 84 Cal.App.4th at p. 432.)
In her reply brief, Mother argues SSA’s and the juvenile court’s position that S.H. and A.H. should not be forced to return home against their wishes is “incorrect and inadvisable” for the following reasons: “Because the girls are in foster care, the Agency and the juvenile court have stepped into the role of parents to these girls. Anyone who has ever raised a 16- or 17 year old child knows that the worst possible approach to parenting a teenager is to allow them to make their own decisions, free of any parental influence, and to decline to ‘force’ them to do anything against their will. Both the Agency and the juvenile court have an obligation to do what is best for these girls and best for this family, even if that goes against the wishes of the girls.” We cannot disregard the juvenile court’s express comments for reaching its decision under these circumstances. (See Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 138.) True, there is a presumption the juvenile court followed the law, but that presumption is rebutted by the court’s own comments on the record.
We therefore reverse the juvenile court’s order and remand for the juvenile court to reconsider Father and Mother’s request in light of all of the legal principles involved in that determination and explain its ruling on the request. We emphasize that we express no opinion on what the court should conclude after conducting this required analysis.
We recognize our decision in this case will have a limited impact considering that S.H. turned 18 years old in February 2010 and if it has not been terminated already, dependency jurisdiction as to S.H. will be likely terminated in the near future. A.H. will turn 18 in about a year. Nevertheless, the continued placement of children out of a parent’s custody must be preceded by compliance with statutory requirements; a teenager’s preference for continued freedom from parental control cannot be the only factor considered. We therefore remand this case to the juvenile court to reconsider the best interests of the children, applying all of the legal principles involved in that determination, including but not limited to the wishes of the children themselves.
DISPOSITION
The order is reversed and the matter is remanded to the juvenile court to exercise its discretion and explain its reasons after reconsidering Father and Mother’s request for the return of S.H. and A.H. to their care, in light of the legal principles set forth in this opinion. Because the parties submitted on the documentary evidence, the juvenile court is not required to hold another hearing, but may do so in its discretion.
WE CONCUR: BEDSWORTH, ACTING P. J.ARONSON, J.