Opinion
B231675
12-07-2011
In re DELILAH G. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JENNIFER G., Defendant and Appellant.
Lee Gulliver, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Jeanette Cauble, Senior Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County
Super. Ct. No. CK76203)
APPEAL from an order of the Superior Court of Los Angeles County, Marilyn Mackel, Juvenile Court Referee. Affirmed.
Lee Gulliver, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Jeanette Cauble, Senior Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
Jennifer G. (Mother) appeals from an order denying her petition under Welfare and Institutions Code section 388. She sought to change an order terminating her reunification services and setting the case for a permanency planning hearing under section 366.26. On appeal, she contends the juvenile court erred in failing to appoint a guardian ad litem for her and abused its discretion in denying her petition without a hearing. We affirm.
All further section references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In late 2008, the Department of Children and Family Services (DCFS) received two referrals regarding Mother's twin daughters, Delilah and Denise, who were then just a few months old. The referrals claimed Mother, who was 16 years old, was depressed and not caring for the twins.
On January 16, 2009, a social worker visited the home that Mother and the twins shared with the maternal grandmother, Bertha R. (Grandmother). Grandmother stated that she had been caring for the twins because Mother was lazy and crazy and unable to care for them. Mother told the social worker that she watched television all day. She was bored staying home with the twins and wanted to be a teenager again. She admitted that she had forgotten to enroll the twins in Medi-Cal. She also stated that she had been diagnosed with post-partum depression but had not taken her prescribed medication.
Mother had been a dependent of the court from 1998 to 2001 due to sexual abuse by her father and stepfather and physical abuse by Grandmother. Since Mother had been returned to Grandmother's custody, DCFS had received a number of referrals due to physical abuse by Grandmother and violence toward Grandmother by Mother.
The twins' father, Daniel B. (Father), had dated Mother since she was 13 years old. He had helped care for the twins until he was convicted of receiving stolen property and given a two-year sentence.
Father is not a party to this appeal.
DCFS conducted a Team Decision Making meeting (TDM) on January 28. Mother indicated that she wanted to be a teenager again and return to the school she had attended with her friends rather than to go to a school with a teen mother/daycare program. Although she initially resisted voluntary family maintenance services, she finally agreed to participate in a case plan, including parenting classes and home mental health services.
Mother had not attended school since December 2007. In January she had suffered a miscarriage and became suicidal. She got pregnant again, moved out of Grandmother's home and refused to go to school. After she gave birth to the twins, she did not want to return to school because it was boring and she did not learn anything.
Several days later, Grandmother called DCFS and reported that Mother was going crazy, had held a knife to her own throat and threatened to kill herself. Grandmother said she was sick and could not care for the twins anymore and demanded that someone come to the home. The social worker, who could hear the twins crying and Mother screaming and crying in the background, told Grandmother to call 911.
The Los Angeles Police Department and a social worker responded to the home. Mother denied threatening to kill herself and claimed Grandmother did not love her and wanted her out of the home. Mother became enraged and screamed that DCFS always believed Grandmother. Grandmother said that Mother had threatened several times to kill herself and that she wanted Mother to leave the home. The social worker believed the twins' safety was at risk and took them into protective custody. The social worker offered to place Mother in a home for teens where she could keep the twins with her, but she declined.
The following day, DCFS held another TDM. When Mother learned at the meeting that the twins would not be returned to her, she became inconsolable and threatened to harm herself. She was taken to a hospital and placed on an involuntary mental health hold.
DCFS filed a section 300 petition on February 9, alleging that the twins were at risk of harm due to Mother's history of mental health problems. (Id., subd. (b).) It also alleged Father had failed to provide the necessities of life for the children. (Id., subds. (b) & (g).)
Mother did not attend the detention hearing because she was still hospitalized. The juvenile court ordered the twins detained but continued the hearing to allow Mother to be present. Mother was released from the hospital on February 16 but readmitted the following day, after she became violent toward Grandmother. Mother was not present at the continued hearing, but the court appointed an attorney for her. The court also asked DCFS to investigate whether it needed to file a section 300 petition as to Mother based on Grandmother's statement that Mother could not live with her anymore.
When Mother was released from the hospital, she was taking her prescribed medication. Grandmother allowed Mother to return to her home.
At a TDM on March 11, it was agreed that Mother, Grandmother and the twins would participate in the Full Service Partnership through the Department of Mental Health, which would provide all necessary services.
At the March 26 jurisdiction/disposition hearing, the juvenile court sustained the section 300 petition as amended. It declared the twins dependents of the court and placed them in the home of their paternal aunt, Araceli E., who also agreed to supervise visitation. Mother's attorney advised the court that Mother had enrolled in a parenting program and individual counseling, was attending school and was taking medication for depression. The court ordered Mother to attend individual counseling to address case issues and anger management, participate in a parenting program, obtain a mental health assessment and take all prescribed medication.
For the six-month review hearing on September 2, DCFS reported that Mother had initially visited with the twins regularly and helped care for them. In June and July, Mother's visitation and participation in services became inconsistent as she helped care for Grandmother, who was ill. Then in July, Grandmother said she no longer wanted Mother living with her. At a TDM held to address the conflict between Mother and Grandmother, a social worker told Mother and Grandmother that they needed to participate in conjoint counseling if they ever wanted the twins to be returned to their home. Mother also requested overnight visits with the twins at Ms. E's home. DCFS granted her one weekend visit per month and unmonitored day visits. DCFS also reported that Mother had been participating in her treatment program, although after the July TDM, she had attended only one therapy session. Additionally, Mother was enrolled in school, where she was doing well, and looking for employment.
At the hearing, Mother requested that the twins be returned to her or, in the alternative, a contested hearing. The court continued the matter for a contested hearing.
For the October 14 contested hearing, DCFS reported that Mother had missed a number of appointments at the mental health clinic and it appeared that she was no longer taking her prescribed medication. At the hearing, Mother withdrew her contest. The juvenile court continued reunification services and unmonitored visitation.
For the April 13, 2010 12-month review hearing, DCFS reported that Mother had been having eight hours of unmonitored visitation with the twins every weekend. The visits went well and Mother cared for the twins, although she occasionally returned them exhibiting poor hygiene. Mother's participation in therapy was inconsistent and she demonstrated poor insight into her mental health issues. In addition, she had stopped taking her medication in June 2009. However, she had not been hospitalized for over 11 months. She also had begun working part-time.
At the hearing, the juvenile court found that Mother was in compliance with her case plan. It granted her an additional six months of reunification services and gave DCFS discretion to allow her overnight weekend visitation.
DCFS reported for the August 5, 2010 18-month review hearing that Araceli E. could no longer care for the twins because she wanted to get back together with her husband, who had just been released from prison. Grandmother had expressed an interest in adopting the twins, however.
DCFS reported that Mother was still employed and was working full time and often on weekends. While she was visiting with the twins, sometimes work interfered with visitation and Grandmother cared for the twins. Mother was no longer enrolled in therapy and had missed about half of her sessions when she was enrolled. Mother's participation in parenting classes was sporadic, and she had dropped out of school. Mother was overwhelmed with the demands on her time.
Following a contested hearing, the juvenile court found Mother was not in compliance with her case plan. It terminated her reunification services and set a section 366.26 permanency planning hearing.
In February 2011, DCFS reported that in November 2010, it had placed the twins with paternal relatives Jose and Lucy A., who were committed to providing a stable home for the girls. Mother had received a promotion at work and was able to provide things for the twins. She also visited them regularly, although Grandmother cared for them when Mother needed to work. Mother also had enrolled in individual therapy and hoped to regain custody of the twins.
On February 17, 2011, Mother filed a section 388 petition. She sought to have the twins returned to her custody. She explained that since the juvenile court terminated reunification services and set a permanency planning hearing, "Mother has been in individual counseling . . . since November 22, 2010. Mother continues to attend Young Moms Program . . . . Mother continues to enjoy regular unmonitored visits with the [twins]. Mother continues to have steady employment." She believed it would be in the twins' best interests to be returned to her because they were "strongly bonded with the Mother and . . . continue to have a strong relationship with the maternal grandmother. Mother is a young parent but has made efforts to comply with the case plan to ensure a safe home for the [twins]."
On March 8, 2011, the juvenile court denied Mother's petition without a hearing. It explained that the petition did not state new evidence or a change of circumstances, and the proposed change would not promote the twins' best interests. Mother filed her notice of appeal from the court's order.
Mother filed a second section 388 petition on July 26, 2011. The juvenile court granted a hearing on that petition. Before the hearing could be completed, Mother filed a new section 388 petition on September 16, 2011. Again, the court granted a hearing on the petition. As of October 28, 2011, the hearing on the two petitions had been continued.
DISCUSSION
Failure to Appoint a Guardian Ad Litem for Mother
Mother contends that her "background and circumstances were such that the court should have appointed her a guardian ad litem." We disagree.
The juvenile court has a sua sponte duty to appoint a guardian ad litem for a minor parent it deems to be incompetent. (§ 326.7; In re Lisa M. (1986) 177 Cal.App.3d 915, 919.) A parent is incompetent if he or she lacks the capacity to understand the nature or consequences of the proceedings or to assist counsel in preparing the case. (In re James F. (2008) 42 Cal.4th 901, 910.) A parent is not entitled to appointment of a guardian ad litem based on minority alone. (§ 326.7.)
We acknowledge that the record shows Mother had mental health issues. We agree with DCFS, however, that there is nothing in the record to suggest that Mother did not understand the nature and consequences of the proceedings or was unable to assist her counsel in preparing the case. To the contrary, Mother participated in the proceedings and took steps to regain custody of her children. Her trial attorney never complained of Mother's inability to assist in the case. In fact, in the section 388 petition, her attorney noted that "Mother is a young parent but has made efforts to comply with the case plan to ensure a safe home for the Minors."
Most of her mental health problems manifested themselves early in the proceedings. By the time she filed her section 388 petition, she was maintaining mental stability without medication, working full time and successfully having unmonitored visitation with the twins.
Most tellingly, on her own initiative, Mother enrolled in individual counseling and the Young Mom's Program after her reunification services were terminated. We also note that even after Mother's appellate counsel raised the issue of appointment of a guardian ad litem, the issue was not raised in the subsequent juvenile court proceedings. In sum, there is no preponderance of the evidence (In re Sara D. (2001) 87 Cal.App.4th 661, 667) supporting the appointment of a guardian ad litem for Mother.
In light of this conclusion, we need not address DCFS's claim that the issue was forfeited by Mother's failure to raise it below. (In re Charles T. (2002) 102 Cal.App.4th 869, 873.)
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Denial of a Hearing on Mother's Section 388 Petition
Section 388 permits a party to petition the juvenile court to change its prior orders based upon a change of circumstances. (In re Amber M. (2002) 103 Cal.App.4th 681, 685; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The party seeking a change must demonstrate both that a change of circumstances exists and that the proposed change of court order is in the child's best interests. (Casey D., supra, at p. 47.)
A party is not entitled to a hearing on her section 388 petition unless she makes a prima facie showing of new facts or a change of circumstances making it probable that the children's best interests would be promoted by the proposed change of order. (In re Hirenia C. (1993) 18 Cal.App.4th 504, 516; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413-1414.) As DCFS points out, section 388 requires changed circumstances, not merely changing circumstances. (In re Casey D., supra, 70 Cal.App.4th at p. 49.) That Mother was participating in individual counseling and a Young Mom's Program did not demonstrate that circumstances had changed (In re Hashem H. (1996) 45 Cal.App.4th 1791, 1797) or that the twins' best interests would be served by a modification of the trial court's previous orders (cf. In re Joseph B. (1996) 42 Cal.App.4th 890, 901). The trial court did not abuse its discretion in denying a hearing on Mother's petition. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
In any event, the issue is now moot. Since the denial of a hearing on her section 388 petition, she has filed two more petitions, and the juvenile court has granted her a hearing on those petitions. (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1054-1055.)
DISPOSITION
The order is affirmed.
JACKSON, J.
We concur:
PERLUSS, P. J.
WOODS, J.