Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. No. CK42519 Marilyn H. Mackel, Commissioner.
Donna Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and Liana Serobian, Deputy County Counsel, for Plaintiff and Respondent.
RUBIN, J.
Robin M. (mother) appeals from the March 26, 2007 order denying her Welfare and Institutions Code section 388 petition without a hearing and ordering legal guardianship as the permanent placement plan for her three children. She contends: (1) the juvenile court erred in denying her a hearing on the petition; (2) the legal guardianship order must be reversed pending a hearing on the section 388 petition; and (3) the visitation order is so vague as to constitute an abuse of discretion. We affirm.
All undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2004, after mother was arrested on domestic violence charges, father took five-year-old T.M. and his four-year-old twin brother and sister (the children) to stay with a paternal aunt in Apple Valley. The children were officially placed with paternal aunt when father was later incarcerated.
Father subsequently moved out of the state and is not a party to this appeal.
In May 2004, the juvenile court sustained a section 300 petition, which alleged that the children had been repeatedly exposed to violent physical confrontations between mother and father (§ 300, subds. (a), (b)); mother and father were unable to adequately protect the children because of their substance abuse (id., subd. (b)); and a sibling had been abused or neglected (id., subd. (j)).
The children’s half-sibling, nine-year-old B.S., was living in a legal guardianship with maternal grandmother. During the children’s dependency proceedings, B.S. was detained from maternal grandmother’s home and B.S.’s case was joined with that of the children. B.S. eventually was placed in a legal guardianship with paternal relatives in Texas and this appeal does not involve her.
The children remained placed with paternal aunt until January 25, 2006, when the juvenile court ordered them placed in home of mother under continued supervision by the Department of Children and Family Services (the department) (the January 2006 order).
At a review hearing on April 10, 2006, the department was satisfied that mother was in compliance with the case plan and the children were doing well with her. The matter was continued for a review hearing. But at 4:00 p.m. the day of the hearing, mother was arrested for petty theft with a prior and violation of probation. On May 8, 2006, mother was sentenced to 365 days in jail.
Unaware of mother’s incarceration, the children’s social worker made an unannounced visit to mother’s home on April 28, 2006. Finding no one there and the telephone disconnected, she went to the children’s school. Each child told the social worker a different and untrue story about mother’s whereabouts.
The department learned that mother had been incarcerated from paternal aunt on May 7, 2006. Paternal aunt told the social worker that the children were being looked after by maternal grandfather and mother’s boyfriend, James Green. The next day, the social worker contacted Green, who told her that he and mother were married and he was the children’s stepfather; but when the social worker asked for the marriage certificate, Green admitted that they were not technically married.
The social worker also talked to the maternal grandfather, who pretended not to know about mother’s arrest and maintained that the children were with her.
When the children were redetained on May 9, 2006, T.M. told the social worker: “ ‘I know my mommy is in jail, [Green] told me, but he said not to say it;’ ” the twin boy said, “ ‘[M]other went to school, but he misses her when he goes to sleep;’ ” and the twin girl said, “ ‘[M]other went to get [B.S.] from Texas.’ ” The children were placed with paternal aunt and a section 387 supplemental petition was filed. The supplemental petition alleged that the January 2006 order had not been effective in protecting the children because, as a result of her incarceration, mother was “unable to provide ongoing care and supervision of the children. Said inability of [mother] to provide care and supervision of the children endangers the children’s physical and emotional health and safety and places the children at risk of harm, damage and danger.”
Mother, who was in custody, appeared with appointed counsel at the May 15, 2006, hearing on the supplemental petition. Green was also present at the hearing and was identified to the court as mother’s fiancé, who had been living with mother and the children for the past 14 months. Mother pled no contest and the juvenile court sustained the supplemental petition (the May 2006 order). Finding the January 2006 home of mother order had not been effective in protecting the children, the juvenile court terminated that order, as well as reunification services, and set the matter for a September section 366.26 hearing (hereafter .26 hearing).
Mother was released from jail on or about May 23, 2006, after serving just 45 days of her 365-day sentence. She and Green were married on June 9, 2006. Beginning on June 7, 2006, and over the next several months, mother filed a series of section 388 petitions seeking return of the children; each was denied without hearing. During that time, the .26 hearing was continued a number of times to allow the department to address mother’s assertion that she left the children not unattended, but with Green, about whom the department had been aware for several months. Attached to a report prepared for one of the hearings, the department submitted a copy of Green’s extensive criminal history obtained from the Department of Justice.
Mother filed petitions in pro. per. on June 7, 2006; July 20, 2006; and November 2, 2006. A petition filed by mother in pro. per. on January 24, 2007, was never ruled on, but appears to have been subsumed in the petition filed by mother’s counsel on February 20, 2007, which is the subject of this appeal.
Although represented by appointed counsel, mother in pro. per. filed several responses to the reports filed by the department for the continued hearings. In one such filing, mother admitted that maternal grandfather and Green misled the social worker about mother’s arrest, but asserted that they did so out of “fear the children would be detained.” In another such filing, mother complained that paternal aunt was interfering with the court ordered monitored visits and that mother was having difficulty getting to Apple Valley.
In a letter submitted with the department’s report for the .26 hearing set for January 2007, the children’s therapist stated that the children told him that Green sometimes hit them with a belt and once had choked T.M.; they also told the therapist that when mother took the children shopping, she encouraged them to steal things. According to the department’s report, mother had been in daily telephone contact with the children, but the logistics of getting to Apple Valley were proving too challenging; she had been a “no show” at four out of eight scheduled visits and had canceled two. The department requested that mother be ordered to drug test because her “behavior and mood has dramatically changed as she has [started] to speak very violent[ly], disrespectful[ly], and arrogant[ly].”
Previously, a letter was submitted in which the therapist stated that the children’s prior return to mother had been against his professional opinion; he opined that they should remain placed with paternal aunt.
Although still represented by counsel, the day before the January 2007 hearing, mother in pro. per. filed additional documents in which she complained about “deliberate efforts on the part of [the children’s social worker to] ensure that [mother] is non-compliance with the court’s visitation order . . . .” At the hearing, the court granted mother’s counsel request to be relieved because of an “an irreversible break down with the mother which precludes me from continuing . . . .” The .26 hearing was continued to February.
A. The Section 388 Petition
On February 20, 2007, the date set for the .26 hearing, mother’s new counsel filed a section 388 petition seeking immediate return of the children to mother with family maintenance services or, in the alternate, liberalized visitation (the 388 petition). As changed circumstances, the 388 petition alleged that mother had been released from incarceration and that she “made caretaking arrangements for the children at the time of her incarceration, pursuant to In re S. D. [(2002)] 99 Cal.App.4th 1068.” The 388 petition alleged the change would be in the children’s best interests because they “were ordered home of parent on 1-25-06 and were living happily with the mother until her 30 days incarceration. They expressed their desire to remain with their mother and it is always in the best interest of children to be with their parents as long as it is safe. The social worker on this case described the mother as being ‘dedicated to her recovery . . .’, and as having provided an appropriate home.”
On March 26, 2007, the juvenile court denied the 388 petition without a hearing. It explained: “This court had great difficulty trying to harmonize mother’s stated and written commitment to her children with a very serious action that occurred when the children had just been returned to her care and she continued under [court] supervision; [¶] And that serious action was getting arrested for shoplifting, and putting that together with the mother’s failure to reunify with an older child and with the issues that brought the matter to the court in the first place, with the history of mother’s efforts and the patterns that have existed. [¶] The court could not find it to be in the best interest of the children to grant the 388 under those circumstances. [¶] The overarching circumstance was the involvement in criminal activity while the children were still in her care under court supervision, that stood out and made mother’s prior history with this court and her children stand out even more so as posing a risk that should not be taken with the children when they deserve some stability and permanence at this point in time . . . .”
No witnesses testified at the .26 hearing, which immediately followed. Written evidence was received. The court concluded that the children’s need for permanence and stability was paramount; although mother appeared to be in full compliance with the case plan, a permanent plan of legal guardianship was in the children’s best interest because it would better serve their need for permanence and stability.
Paternal aunt was issued letters of guardianship, but mother’s parental rights were not terminated. The department was ordered to facilitate visitation.
Mother filed a timely notice of appeal.
DISCUSSION
A. Denial of a Hearing Was Not an Abuse of Discretion
Mother contends the juvenile court erred in denying her a hearing on the 388 petition. We disagree.
To be entitled to a hearing on a section 388 petition, a parent must make a prima facie case of changed circumstances showing it is in the child’s best interests for the court to modify a previous order. “ ‘The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition.’ [Citation.]” (In re Mary G. (2007) 151 Cal.App.4th 184, 205; see also In re Angel B. (2002) 97 Cal.App.4th 454, 461 (Angel B.) [prima facie showing depends on the facts alleged in the petition and the undisputed facts established by the court file].) In determining whether to change a prior order (i.e., render a favorable decision on the petition), the juvenile court must consider a number of factors including the seriousness of the problem leading to the dependency; the reason the problem continued; the strength of the parent-child and child-caretaker bonds; the time the child has been in the system; the nature of the change of circumstance; the ease by which the change could be achieved; and the reason the change did not occur sooner. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.)
Mother is wrong in her assertion that these factors are relevant only at a hearing on the petition and not to the determination of whether a hearing is warranted. This is because, if the allegations set forth in the petition or undisputed facts in the court file establish that these factors militate against changing the prior order, the prima facie requirement has not been met.
When, as here, a section 388 petition is brought after reunification services have been terminated, the juvenile court’s focus shifts to the child’s needs for permanence and stability and away from the parent’s interest in the care, custody and companionship of the child. (In re Jacob P. (2007) 157 Cal.App.4th 819, 824; Angel B., supra, 97 Cal.App.4th at p. 464.) We review denial of a hearing on a section 388 petition for abuse of discretion. (Angel B., at p. 460.)
Addressing the relevant factors, we note first that, at the time of mother’s section 388 petition, the children had been in the dependency system for two years – past the statutory cutoff time for reunification services. (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 311.) This factor militated against the requested change.
Second, the problems that led to the children’s original dependency were serious: the danger to their physical and emotional health and safety posed by their exposure to violent physical confrontations between mother and father (§ 300, subd. (a)), mother’s and father’s substance abuse (id., subd. (b)), mother’s failure to comply with the terms of the prior Voluntary Family Maintenance Contract (ibid.), and the fact that their sibling had already been declared dependent child (id., subd. (j)). Although mother had addressed the first two problems, mother never reunified with the children’s older sibling, so that problem was still extant. Equally serious was the problem that led to the children’s redetention just four months after they were returned to mother’s home: the danger to their physical and emotional health and safety resulting from mother’s commission of a felony that resulted in her incarceration and concomitant inability to provide them with ongoing care and supervision. The reason these problems continued, according to mother, is that she failed to get treatment for her kleptomania. Although she maintained that she was now getting that treatment, she does not explain why she did not obtain it sooner. Accordingly, the factor of the seriousness of the problems that led to the children being removed from mother and the reason these problems continued militated against a change in the prior order.
Third, even accepting as true mother’s assertion that she had a strong bond with the children, it is undisputed that the children also had a strong bond with paternal aunt.
Fourth and finally, we consider the nature of the alleged change of circumstance. As we understand mother’s argument, it is that the allegation that mother left the children with Green is a changed circumstance warranting modification of the prior order because, if believed by the juvenile court, it would establish that the prior order was not supported by substantial evidence that mother was unable to care for the children as a result of her incarceration. The flaw in mother’s argument is that the case she relies on for the proposition that she was not unable to care for the children as a result of her incarceration is In re S. D. (2002) 99 Cal.App.4th 1068 (S. D.), which is inapposite to the facts of this case.
In S. D., supra, 99 Cal.App.4th 1068, the parents left their two-year-old in a hotel room they rented with a stolen credit card, in the care of a relative who was the subject of an outstanding warrant. The child was detained by police responding to the innkeeper’s call and the parents were incarcerated for credit card fraud. Parental rights subsequently were terminated and the child was freed for adoption by a maternal aunt. (Id. at p. 1076.)
On appeal, the mother in S. D. contended that there was no basis for the juvenile court to take jurisdiction because the department had proved only that the mother had been incarcerated, not that she was unable to arrange for care, and that her counsel had been ineffective in failing to raise this point at the jurisdictional hearing. (S. D., supra, 99 Cal.App.4th at p. 1077.) The appellate court agreed, concluding that the issue before it was whether a parent is able to arrange for care (§ 300, subd. (g)), not whether the parent has already done so. (S. D., at p. 1078.)
In In re Athena P. (2002) 103 Cal.App.4th 617 (Athena P.), the court distinguished S. D. to find substantial evidence supporting jurisdiction for inability to arrange care. In Athena P., the mother, who was incarcerated when she gave birth, sent the child to live with the grandparents. Although the mother attempted to create a formal custody arrangement, the appropriate documents never were filed. After sustaining a petition under, among other things, section 300, subdivision (g), the juvenile court terminated parental rights. The mother appealed on the grounds that the petition was not supported by substantial evidence because she left the child in the care of the grandparents.
Affirming the order terminating parental rights, the Athena P. court distinguished S. D., supra, on the basis that, in S. D., the department detained the child without ever giving the incarcerated parents an opportunity to make appropriate custody arrangements. By contrast, in Athena P., the mother tried but failed to make the grandparents legal guardians; as a result, the grandparents “[l]egally . . . could not so much as authorize her necessary childhood vaccinations. They had no authority to enroll her in day care or in school. If she wandered away or got lost, they could not prove that they were entitled to have her returned to them. These were all aspects of the ‘care’ of a preschool child. The juvenile court could properly conclude that [the mother] had been unable and remained unable to arrange for [the child’s] care.” (Athena P., supra, 103 Cal.App.4th at pp. 629-630.) The Athena P. court concluded that this constituted substantial evidence supporting the jurisdictional finding under section 300, subdivision (g). (Athena P., supra, at p. 630.)
This case is more like Athena P. than it is like S. D. As in Athena P., here mother intended to leave the children with Green for an extended period but failed to give him legal authority. In fact, by concealing her incarceration, mother made it impossible for the social worker to assist in transferring temporary legal custody to Green so that he could obtain any required medical care, enroll them in school, etc. That mother did so out of fear that the children would be detained may be understandable in the abstract but it was not in the best interests of the children. That mother concealed her incarceration from the social worker and left the children with Green without giving him any legal authority was sufficient to support the prior order. Since the absence of substantial evidence to support the prior order was the basis of mother’s changed circumstance allegation, that allegation was insufficient to meet the prima facie requirement. Accordingly, the juvenile court did not abuse its discretion by denying mother a hearing on her section 388 petition.
B. The Order of Legal Guardianship
Inasmuch as we have found no merit in mother’s contention that she was entitled to a hearing on her section 388 petition, the corollary argument that the letters of guardianship must be reversed pending a hearing on the section 388 petition is necessarily without merit.
C. The Visitation Order Is Not Vague
Mother contends the visitation order is so vague as to constitute an abuse of discretion. She argues: “By not providing for the frequency and length of the visits, however, the court’s order may permit the visitation to not occur.” We disagree.
Section 366.26, subdivision (c)(4), addresses the selection of legal guardianship or long term foster care rather than adoption as the permanent placement plan. Subdivision (c)(4)(C) of section 366.26 provides: “The court shall also make an order for visitation with the parents or guardians unless the court finds by a preponderance of the evidence that the visitation would be detrimental to the physical or emotional well-being of the child.” In In re M.R. (2005) 132 Cal.App.4th 269, 274 (M.R.), the court held that section 366.26, subdivision (c)(4)(C) requires the juvenile court to make visitation orders in legal guardianships.
The juvenile court may, however, delegate to the legal guardian the authority to decide the time, place and manner of visitation. (M.R., supra, 132 Cal.App.4th at p. 274.) “[F]requency and length of visits are simply aspects of the time, place and manner of visitation. . . . .” (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1376-1377.)
Here, the juvenile court ordered: “Monitored visits for the mother in DCFS office in San Bernardino County. [¶] Once mother arrives in DCFS office for her visits, legal guardian to be called to bring the children for the visits. [Children’s social worker] to set up a visitation schedule and provide the dates and times to both mother and caretaker.” This visitation order contemplated regular visitation and provided the department with adequate guidelines to administer the details of the visitation. Accordingly, we find no abuse of discretion.
DISPOSITION
The March 26, 2007 order is affirmed.
WE CONCUR: COOPER, P. J., FLIER, J.