Opinion
F060233 Super. Ct. No. 27530
07-13-2011
In re MICKEL O. et al., Persons Coming Under the Juvenile Court Law. MERCED COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. LE HAO O., Defendant and Appellant.
Le Hao O., in pro. per., for Defendant and Appellant. James N. Fincher, County Counsel, and James B. Tarhalla, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Merced County. Carol K. Ash, Judge.
Le Hao O., in pro. per., for Defendant and Appellant.
James N. Fincher, County Counsel, and James B. Tarhalla, Deputy County Counsel, for Plaintiff and Respondent.
SEE CONCURRING OPINION
Le Hao O., maternal grandmother of Mickel and Mallory (collectively, the children), appeals the juvenile courts denial of her petition, filed pursuant to Welfare and Institutions Code section 388, requesting that the court place the children with maternal grandparents or, in the alternative, provide maternal grandparents unsupervised visitation with the children. In addition, maternal grandmother specifically contends (1) the social worker was culturally insensitive and lacked cultural competence; (2) the social worker was biased and failed to investigate abuse of the children while in paternal grandparents care; (3) the juvenile court failed to protect Mallory and failed to enforce the Child Abuse and Reporting Act; (4) paternal grandparents home lacked permanency and stability; (5) the juvenile court failed to consider the childrens best interests; (6) the children were denied effective assistance of counsel; (7) the court failed to consider the strength of the bond between maternal grandmother and the children; (8) the social workers report was biased and contained false information; (9) the juvenile court erroneously denied continued supervised visitation; and (10) the social worker did not comply with the juvenile courts mediation order.
While we sympathize with maternal grandmothers desire to have an active role in raising the children and recognize that these proceedings have been unduly protracted and difficult, we cannot say the juvenile court abused its discretion in denying the section 388 petition. However, we do conclude the court abused its discretion in terminating supervised visitation for maternal grandparents. Accordingly, we will reverse the order terminating supervised visitation and remand to the juvenile court with directions.
PROCEDURAL AND FACTUAL BACKGROUND
This case has a long history, much of which has been recounted in other opinions. At this point, the two sets of grandparents are fighting over the children. We set out a brief history and refer the reader to our opinion addressing maternal grandfathers appeal for greater detail (In re Mickel O. (2011) ____ Cal.App.4th ____).
Mother and father had two children, Mickel and Mallory. The children lived with mother and maternal grandparents until Mickel was four years old and Mallory was eight months old. During this time, Mickel formed a strong bond with maternal grandfather. On August 22, 2006, the children were made dependents of the court (Welf. & Inst. Code, § 300) based on allegations that mother and father failed to protect or supervise the children and that mother suffered from mental illness, developmental disability or substance abuse. The children were placed with father. The agency offered mother reunification services.
All statutory references are to the Welfare and Institutions Code unless otherwise noted.
The Merced County Human Services Agency.
On October 24, 2006, the agency filed a supplemental petition alleging that mother attacked father and paternal grandmother in fathers home, and that father failed to prevent mother from having contact with the children. The children were removed from fathers home and placed with a paternal aunt. On November 9, 2006, the petition was sustained and maternal grandparents were granted de facto parent status.
On June 19, 2007, reunification services to mother were denied, and reunification services were ordered for father.
Due to a medical situation in paternal aunts family, the children needed to be moved. On August 7, 2007, maternal grandparents sought placement. The homes of both sets of grandparents were considered for placement, but mother was residing in maternal grandparents home. The agency was concerned that maternal grandparents could not protect the children from mother. The court placed the children with paternal grandparents. Maternal grandparents appealed the placement order and we affirmed (In re Michael O. [sic](Jun. 26, 2008, F054035 [nonpub. opn.]).
On January 18, 2008, maternal grandparents filed a petition under section 388 to change a court order.
On April 15, 2008, paternal grandparents were granted de facto parent status. Mothers motion to reinstate reunification services was denied, she appealed, and we affirmed (In re M.O. (Feb. 27, 2009, F055603 [nonpub. opn.]).
On May 22, 2008, the parties agreed to participate in a bonding study.
On August 21, 2008, Pattee Russell-Curry (the expert) submitted the bonding study report to the social worker. In her report, she observed that the children were close to maternal grandparents and communicated with them in a comfortable and intimate manner, but they were settled in paternal grandparents home. Mickel still had a very close and engaged relationship with maternal grandfather, who had been his primary caretaker during the early years of his life. However, the relationship excluded others in the family.
Mickels bond with maternal grandmother was less intense. The expert stated:
"[Maternal grandmother] stands by happy to see [Mickel], but takes a back seat to the group activity, primarily. When seen alone with [her], [Mickel] avoided a lot of eye contact, played parallel to her and, in general, only tolerated her, in comparison to his need for mothers approval, and his clear engagement with [maternal grandfather]. [Maternal grandmothers] role appeared to be one of nurturer through food. She appears to be a wonderful cook, who regularly sent tasty food for the children to eat, which they hungrily gobbled down . . . . [¶] [Maternal grandmother] made many attempts at appropriate play with [Mickel] and he was responsive sometimes, such as in playing hide and seek, which developmentally and emotionally, given his many disruptions, losses, and home changes, was a great game for them to play."
Mallory was younger and did not exhibit particularly developed bonds with maternal grandparents. She had settled into paternal grandparents home and was particularly attached to paternal grandfather. Mickel also felt settled in paternal grandparents home. Despite the loving relationships with maternal grandparents, there had been strife in the home and Mickel now felt more safe and secure in paternal grandparents home. Mickel told the expert how much he hated the fighting between his parents and maternal grandfather.
On August 26, 2008, reunification services for father were terminated and a section 366.26 hearing set. The children remained in paternal grandparents home and the court ordered monthly visits for mother and maternal grandparents.
On September 5, 2008, the expert wrote an addendum report directly to the juvenile court, voicing her concerns about the way the social worker was handling the case and questioning her impartiality. In her report, the expert stated that Mickel originally wanted to return to maternal grandparents home, but "not anymore, because of the domestic violence. I believe that if there was no more animosity and anger, that yes, under good circumstances, [Mickel] would want to go home to [maternal grandparents]. However, at this point, he appears more emotionally settled and stable in [paternal grandparents] home, and is putting down roots with [paternal grandmother] in ways that show me he is relying on her help emotionally."
The expert summarized:
"At this point, after all the disruption, domestic violence, and interrupted attachments, I would say that the children are more stable being left with [paternal grandparents], but that they could benefit from an ongoing relationship with the rest of their family. The challenge is, however, that if the family continues to stir up trouble, to fight, to undermine [paternal grandparents], this is absolutely detrimental to these children. I believe that the optimum goal for [Mickel] and Mallory would be to provide them with stability in [paternal grandparents] home, with regular and consistent home visitation with [maternal grandparents] two times a month, initially. I would recommend a half day visit for the first occurrence, a full day visit for the next, and assuming that the children and families can handle these arrangements, continue with a full day, i.e. Saturday, two times a month for three months. If this arrangement can be conducted civilly, without malice, and the children can settle into it, trusting that they can spend time with their family, and return again, I would hope that they could develop a normal, healthy grandparent relationship with [maternal grandparents], with regular, frequent visitation, and as long as [mother] is supervised or not present. [¶] . . . [¶] . . . [Mickel] appears to have been deeply affected by
the domestic violence, anger and rage that he has witnessed not only by his parents, but also by [maternal grandfather]. Although he loves [maternal grandfather], he is very frustrated that his life has been affected by this fighting. He appears to feel secure and safe where he is now, and because he shows much evidence of trauma from the domestic violence, I believe that it would be emotionally detrimental to him to move him from a secure base, back into a situation where this could continue to occur between [maternal grandfather] and [mother]."
On June 12, 2009, maternal grandparents filed an amended section 388 petition, including notes and photographs. Maternal grandparents requested placement of the children in their home or unsupervised visitation. They explained that the changes would benefit the children because the children were bonded to them and had been since well before the dependency proceedings had begun, paternal grandparents were not providing proper care, and the children were being emotionally abused in paternal grandparents home.
On April 20, 2009, a combined hearing commenced on the section 388 petition and the section 366.26 matter. The expert testified that Mickel was bonded to maternal grandparents, particularly to maternal grandfather, but she believed it would be too disruptive to remove the children from paternal grandparents home where they felt safe and settled. She was also concerned that maternal grandparents continued to say disruptive things to the children about the case, particularly about coming back home to maternal grandparents home. For example, maternal grandmother said to Mickel in the experts presence, "Tell [the expert] you want to come home." The expert believed that maternal grandparents behavior, if unabated, would continue to inflame the situation. Their tendency to say things to the children that could influence or confuse them raised concerns not only about unsupervised visitation, but also about maintaining a relationship with the children.
On April 9, 2010, the court issued its 12-page written ruling, in which it denied maternal grandparents section 388 petition, and terminated parental rights.
At the April 19, 2010 hearing, the court formalized its ruling and terminated all visitation between maternal grandparents and the children.
DISCUSSION
I. Section 388 Petition
Maternal grandmother contends the denial of her section 388 petition requesting placement of the children or unsupervised visitation with the children was an abuse of discretion. We recognize that reasonable minds might differ as to the correct outcome in this case, but we cannot say the juvenile court abused its discretion.
Maternal grandmother points to evidence of the social workers bias and lack of objectivity, including the social workers cultural insensitivity and prejudice, the social workers failure to investigate allegations of abuse and neglect at the hands of paternal grandparents, the social workers failure to ensure that mediation took place, and the social workers inclusion of false information in her reports. The expert strongly believed that maternal grandfather had been treated with unsubstantiated suspicion by the agency. In fact, she was so disturbed by the agencys actions that she wrote two letters directly to the court.
Maternal grandmother argues that mediation was ordered by the court, but the record instead suggests the parties agreed to seek mediation. Thus, it was not the job of the social worker or the juvenile court to ensure the parties followed through with their own agreement. We note that the social worker testified that a provider met with the families and determined there was so much animosity between them that a family conference would not be appropriate.
We agree there were issues of credibility and impartiality in this case, but we also recognize that these issues of bias were before the juvenile court and were for the court to weigh and decide. "It is the [juvenile] courts role to assess the credibility of the various witnesses, to weigh the evidence to resolve the conflicts in the evidence. We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence. [Citation.]" (In re Casey D.(1999) 70 Cal.App.4th 38, 52-53.) The social workers bias and the source of her information were vigorously explored by counsel during cross-examination. Thus, the juvenile court was made aware of the evidence to which maternal grandmother points.
Nevertheless, because of our concern, we rely on evidence apart from that provided by the two social workers and conclude this independent evidence supported the juvenile courts decision to deny maternal grandmothers section 388 petition. We will explain.
Section 388 allows a parent or other person with an interest in a dependent child to petition the juvenile court to change, modify, or set aside any previous order. (§ 388, subd. (a).) "Section 388 provides the escape mechanism that . . . must be built into the process to allow the court to consider new information." (In re Marilyn H. (1993) 5 Cal.4th 295, 309; see also In re Zacharia D. (1993) 6 Cal.4th 435, 447; In re Stephanie M. (1994) 7 Cal.4th 295, 317.) The petitioner has the burden of showing by a preponderance of the evidence (1) that there is new evidence or a change of circumstances and (2) that the proposed modification would be in the best interests of the child. (§ 388; Nahid H. v. Superior Court (1997) 53 Cal.App.4th 1051, 1068; In re Casey D., supra, 70 Cal.App.4th at p. 47.) That is, "[i]t is not enough for [the petitioner] to show just a genuine change of circumstances under the statute. The [petitioner] must show that the undoing of the prior order would be in the best interests of the child. [Citation.]" (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) Furthermore, the petitioner must show changed, not changing, circumstances. (In re Casey D., supra, at p. 47.) The change of circumstances or new evidence "must be of such significant nature that it requires a setting aside or modification of the challenged prior order." (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485.)
In considering whether the petitioner has made the requisite showing, the juvenile court may consider the entire factual and procedural history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189.) The court may consider factors such as the seriousness of the reason leading to the childs removal, the reason the problem was not resolved, the passage of time since the childs removal, the relative strength of the bonds with the child, the nature of the change of circumstance, and the reason the change was not made sooner. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446-447.) In assessing the best interests of the child, "a primary consideration ... is the goal of assuring stability and continuity." (In re Stephanie M., supra, 7 Cal.4th at p. 317.)
We review the juvenile courts denial of a section 388 petition for an abuse of discretion. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71.) The court "exceeds the limits of legal discretion by making an arbitrary, capricious or patently absurd determination." (Ibid.)The test for abuse of discretion is whether the court exceeded the bounds of reason. "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. [Citation.]" (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
Under this standard of review, we must conclude the juvenile court did not abuse its discretion in ruling that the evidence did not establish that placing the children with maternal grandparents would be in the childrens best interests, or that allowing unsupervised visitation with maternal grandparents would be in the childrens best interests.
Although the expert recognized that the children were attached to maternal grandparents and that maternal grandfather and Mickel shared a strong, loving, and important bond, she also unequivocally stated that Mickel and Mallory should not be moved from paternal grandparents home. Mickel told her that he felt most secure now in paternal grandparents home. She believed Mickel required the stability he had found with paternal grandparents, but also relied on his close relationship with maternal grandfather. As for Mallory, she was settled in paternal grandparents home and was forming attachments to paternal grandparents. The expert opined that the optimal outcome for the children would be the stability and security of paternal grandparents home, with frequent and regular home visitation with maternal grandparents. Thus, the experts reports and testimony provided evidence to support the juvenile courts determination that moving the children from paternal grandparents home to maternal grandparents home would not be in the childrens best interests.
And although the expert believed that the children could enjoy unsupervised visitation in maternal grandparents home, she based her opinion on a situation without animosity, anger, and disruption. She stated that visitation could succeed if the arrangement were handled "civilly, without malice," and she stressed that "if the family continues to stir up trouble, to fight, to undermine [paternal grandparents], this is absolutely detrimental to these children." From this and other evidence, the juvenile court could reasonably conclude that unsupervised visitation, which had led to disruption, was not currently in the childrens best interest.
Maternal grandmother asserts that the juvenile court failed to consider the childrens best interest, in light of the evidence of the childrens bonds to maternal grandparents, the childrens comfort and familiarity with maternal grandparents, Mickels desire to return "home" to maternal grandparents home, and Mickels devastation if he were separated from maternal grandparents. There is no doubt that the children were bonded to maternal grandparents and that Mickel considered their home his home. But there was also abundant evidence to support the juvenile courts decision that at this time the children should remain at paternal grandparents home.
The courts decisions to deny placement and unsupervised visitation were not arbitrary, capricious, or beyond the bounds of reason. The courts goal was to promote the childrens best interests, which at this point were permanency and stability (In re Stephanie M., supra, 7 Cal.4th at p. 317), and to put an end to the upheaval in their troubled lives. While there was ample evidence that Mickels relationship with maternal grandparents was positive and important, there was also evidence that maternal grandparents were creating confusion and disruption by talking about the case with the children and telling them they would be coming home. Maternal grandfathers anger was manifested in Mickels attitude and he was acting out with paternal grandmother.
Despite the outcome of this sad case, we are hopeful that the two sets of grandparents can rise above their personal conflicts and create an open, extended family for the benefit of these children. Maternal grandfather obviously plays an important role in Mickels life, which, if managed for the good of Mickel, could continue to nurture and support him even if he is adopted by paternal grandparents. We sincerely hope the grandparents, all of whom are beneficial to and loved by the children, can work together to provide love and stability rather than discord, chaos, and confusion in the childrens lives.
II. Termination of Supervised Visitation
At the end of the final hearing, after terminating parental rights and denying maternal grandparents section 388 petition, the juvenile court summarily terminated maternal grandparents supervised visitation with the children, effectively severing all contact between them and extinguishing arguably the most important relationship in Mickels life. Unrefuted evidence presented by the expert demonstrated that Mickels relationship with maternal grandfather was the most closely attached and bonded relationship in Mickels life. The bond between Mickel and maternal grandfather was "primary, fundamental and intense," and Mickel displayed authentic despair when required to leave maternal grandfathers presence.
We recognize that once parental rights are terminated and a child is referred for adoption, the department or licensed adoption agency "shall be responsible for the custody and supervision of the child and shall be entitled to the exclusive care and control of the child at all times until a petition for adoption . . . ." (§ 336.26, subd. (j).) In this regard, the agencys decisions during this period are subject to the juvenile courts review for abuse of discretion. (See Department of Social Services v. Superior Court (1997) 58 Cal.App.4th 721, 733-734; Amber R. v. Superior Court (2006) 139 Cal.App.4th 897, 900903.) In this case, termination of visitation was heavily promoted by county counsel and thereafter ordered by the court. The record demonstrates that the court and the parties ultimately agreed that the court had authority to terminate visitation. We conclude for the reasons we explain below that, regardless of whether the decision properly rested with the agency or the court, termination of visitation was an abuse of discretion.
First, termination of supervised visitation had never been an issue during the course of the prolonged hearing. After the juvenile court issued its written ruling, a hearing was held to discuss the ruling. Because the section 388 petition had been denied, maternal grandparents counsel orally requested increased supervised visitation. In response, county counsel suggested that in light of the adoption goal, termination of all visitation would be appropriate. The court ultimately agreed, explaining that the children would "probably end up being adopted by [paternal grandparents]." The court seemed to believe that maternal grandparents might as well get a head start on adjusting to the inevitability of adoption by paternal grandparents and learning to live without any contact with the children they dearly loved. Although the court believed the children would benefit from this complete severing of contact with maternal grandparents (in the interest of stability, permanency and certainty), we see nothing in the record indicating that supervised visitation should cease because of the possible adoption in the future.
Maternal grandparents were obviously blindsided by this last-minute decision and the summary manner in which all contact with their beloved grandchildren was abruptly terminated. Maternal grandparents counsel argued vigorously, exclaiming to the court he was "absolutely beside [him]self" that this decision could be made in this manner. Furthermore, he could not comprehend how an abrupt severance of all contact could possibly be in the childrens best interest. Despite the protestations of maternal grandparents counsel, the court stated it believed maternal grandparents "had a chance to present all the evidence they would want to present." But maternal grandparents were afforded no opportunity to argue or present evidence to rebut county counsels motion on the specific topic of supervised visitation, which maternal grandparents had assumed would continue at least until the children were adopted. In our opinion, the court erred in denying maternal grandparents a full and fair hearing on the issue.
In addition, we stress that adoption by paternal grandparents at this point was not a foregone conclusion and the courts termination of all visitation with maternal grandparents for that reason was error. At that point, any number of events could have changed the course of the proceedings (as they still could) and maternal grandparents, excluded from the process by termination of visitation, would no longer be in the best position to participate. This outcome would be detrimental to the children. Finally, we note that neither termination of mothers parental rights nor denial of maternal grandparents section 388 petition had any effect on maternal grandparents ongoing status as de facto parents.
Second, the courts order terminating all visitation with maternal grandparents foreordained the outcome in this case by rendering the issue of mediation moot. The order effectively informed paternal grandparents that any effort toward mediation or other forms of cooperation was simply no longer required, or even encouraged. The order eliminated whatever motivation paternal grandparents, who had already proven resistant to visitation requests, might have had to allow visitation for the sake of the children, particularly Mickel, who was so tightly bonded to maternal grandfather. As the expert opined, the optimal outcome for the children included liberal visitation with maternal grandparents, provided the grandparents could work together to create a peaceful and nondisruptive relationship. But all prospects for crafting an improved relationship between the acrimonious grandparents through mediation or other forms of cooperation evaporated upon the courts order.
Moreover, we believe the juvenile court should have actively pursued the prospect of mediation between the grandparents. Although the parties had previously agreed to participate in a "family group decision-making conference," it never occurred, apparently due to animosity between the grandparents or refusal by one or more of the grandparents. Mediation can save both families and court resources, and we think the court should have inquired into the reasons why no mediation had occurred and encouraged the parties to reconsider and participate. The evidence plainly established the importance of visitation between Mickel and maternal grandfather, and an effort should have been made to promote that outcome rather than dooming it to failure or acquiescing to its futility.
We note that at least one court has held that under certain circumstances the juvenile court maintains the authority to order visitation following adoption. (In re Hirenia C.(1993) 18 Cal.App.4th 504.)
In our opinion, the decision to terminate visitation exceeded the bounds of reason and thus constituted an abuse of discretion. (See In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.) We therefore reverse the juvenile courts order terminating supervised visitation between maternal grandparents and the children. As a result, the previous visitation order is immediately reinstated and maternal grandparents are entitled to prompt resumption of supervised visitation with the children. We also direct the juvenile court to place the matter on calendar for the court and the parties to consider mediation with a view to a possible long-term and/or postadoptive visitation agreement (see Fam. Code, § 8616.5) that allows the children to maintain their relationships with both sets of grandparents, despite any issues remaining between the grandparents. Our concerns and desires in this regard are eloquently stated by Justice Poochigian in his concurring opinion.
At oral argument, maternal grandmother and county counsel informed this court that some visitation between the children and maternal grandparents recently had been restored. The details are not on the record before us.
Lastly, in light of the allegations of bias and a deteriorated relationship between the social worker(s) and maternal grandparents, we conclude that a new relationship would facilitate the progress of the case. For this reason, we direct the juvenile court to order the agency to assign a new social worker to the case for all purposes, including supervision of visitation. We expect that maternal grandparents will be treated with objectivity and respect by the agency and its agents; conversely, we expect maternal grandparents to finally recognize the potential harm that can come from their comments to the children about returning to maternal grandparents home. The goal at this point is to reunite the children with maternal grandparents and restore visitation for the good of the children under the current circumstances. This goal cannot be met with a strategy that undermines, agitates, or creates animosity and discord. Such a strategy serves only to advance the adult drama at the expense of the childrens well-being.
III. Reports of Abuse
Maternal grandmother argues that the social worker never investigated any reported incidents of abuse or neglect of the children, including mosquito bites, unexplained injuries, and the incident reported by Debbie Johnson. Johnson witnessed Mallory crying and running barefoot in the winter far behind paternal grandmother, who was pushing a stroller along a busy street. Eventually, Mallory caught up and got into the stroller. Maternal grandmother blames the social workers failure to investigate on her bias against maternal grandparents. Maternal grandmother also points out that Mallory was unfairly vilified, even by the juvenile court, as a poorly behaved child who was probably throwing a tantrum, which maternal grandmother explains was sheer speculation and inconsistent with Mallorys manner. While this may be the case, the evidence of the incident and of the social workers bias and failures to investigate were before the juvenile court, and the court was required to weigh the evidence and judge the credibility of the witnesses; we have no power to do so. (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53; In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) The juvenile court did not agree to the mistreatment of Mallory; instead, it disagreed with maternal grandparents interpretation of the evidence of the incident. We cannot reweigh the evidence that was before the juvenile court.
IV. Paternal Grandparents Home
Maternal grandmother maintains that paternal grandparents home lacked permanency and stability because paternal grandfathers schedule was disruptive to the children, paternal grandparents were not bonded with the children, and paternal grandparents could not accommodate the childrens emotional and communicational needs. We agree the evidence suggested that the situation in paternal grandparents home was not ideal, but the children were stable and secure, and Mickel did not fear the domestic violence he had witnessed in maternal grandparents home. The situation certainly had not been ideal there either, despite the warm and affectionate relationships. Although the evidence established that Mickels strongest attachment was with maternal grandfather, the expert stated that Mickel felt most secure in paternal grandparents home and that the children were attached to paternal grandparents. Mickel relied emotionally on paternal grandmother and desired to establish a warm, nurturing relationship with paternal grandfather. The children were still learning to communicate with paternal grandparents, but they appeared to feel settled and safe at their home and they readily told paternal grandparents they loved them and sought physical closeness with them. The juvenile court weighed the evidence and determined the childrens best interests would not be served by moving the children to maternal grandparents home. Because there was evidence to support this conclusion, and it was not outside the bounds of reason, the juvenile courts decision was not an abuse of discretion.
V. Ineffective Assistance by Childrens Counsel
Maternal grandmother contends that childrens counsel was ineffective because he did not present the childrens wishes, as required by section 317, subdivision (e), and consistently agreed with the agency, thereby failing to advocate for the children and revealing his bias. As a result, maternal grandmother asserts, the juvenile court did not consider the childrens wishes because they were not made known by childrens counsel, and thus the court failed to act in the best interests of the children.
"To establish ineffective assistance of counsel, [maternal grandmother] must demonstrate that (1) counsels representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and (2) counsels deficient representation subjected [maternal grandmother] to prejudice, i.e., there is a reasonable probability that, but for counsels failings, the result would have been more favorable to [maternal grandmother]. [Citations.]" (In re Jones (1996) 13 Cal.4th 552, 561; In re Emilye A. (1992) 9 Cal.App.4th 1695, 1711; Strickland v. Washington (1984) 466 U.S. 668, 687.)
Assuming that childrens counsel failed to competently represent the childrens interests by failing to meet with them and by siding with the agency, we cannot say maternal grandmother has shown that the outcome would have been different had counsel performed competently. The expert impartially reported the childrens wishes. For example, she recognized that Mickel wanted to go "home" to maternal grandparents home, but that he hated the strife he had witnessed there and liked the stability of paternal grandparents home. Mallory was too young to voice her opinions, but she was becoming particularly attached to paternal grandfather. Under these circumstances, we believe the court received the information it required to properly consider the childrens wishes.
DISPOSITION
The juvenile courts order terminating maternal grandparents supervised visitation with the children is reversed. The matter is remanded to the juvenile court with directions to immediately reinstate the previous visitation order, to order the agency to assign the case to a new social worker, and to set the matter on calendar for a hearing during which the court and the parties will consider mediation and the prospects for a visitation agreement to promote the childrens best interests in maintaining relationships with both sets of grandparents. In all other respects, the juvenile courts orders are affirmed.
Kane, J.
WE CONCUR:
Levy, Acting P.J.
Poochigian, J. POOCHIGIAN, J., Concurring.
I concur in the majority opinion. I write separately to express my perspective about the circumstances in this case that must be examined in the context of a prescriptive, complex statutory scheme intended to achieve some level of stability for children in distress.
As the nature of family life continues to change in our culture—including parental absence and social pathologies that can do great harm to children—our legal system is constantly faced with the challenge of discerning and applying the law in a manner that is true to legislative intent and in the best interest of the children involved. Unlike so many causes where fashioning rules of conduct, managing behavior, and resolving conflicts are a rather straightforward, logical exercise with a foundation in the experience and wisdom of the ages, the development of dependency laws has undergone great change in the past few decades to meet the needs of children growing up in an environment that bears little resemblance to the television families of the fifties and sixties.
When dealing with the frailties of the most basic and important societal unit, the law that grapples with its failure is abstruse. Judgments that are made in this field can have the most profound effect on the lives of young people at the most fragile stage of their development. As the juvenile court weighs the factors that it must consider, its determinations necessarily involve critical input from professionals charged with the responsibility of evaluating the strengths and weaknesses of the parties involved and making reasoned recommendations in the best interest of the children.
Our expansive Family Code and Welfare and Institutions Code offer a scheme for application of rules whereby the fitness of custodial and prospective custodial parties is measured, with due deference to generally strict deadlines that are intended, in part, to achieve a permanent and stable living arrangement.
The Third District Court of Appeal once observed in another context: "Our system of appellate review is grounded in common sense and the real world. Trial court proceedings are imperfect, as are appellate proceedings. This is not to say close is good enough. We merely observe we always deal with all the errors and imperfections, conscientiously and cautiously, to determine whether a miscarriage of justice has occurred. [Citation.] If it has, we reverse. If it has not, we affirm." (People v. Coley (1997) 52 Cal.App.4th 964, 969.)
In re Mickel O. presents us with a most difficult example of the challenges that are faced by appellate courts in many dependency matters. We are charged with the responsibility of determining whether the juvenile court abused its discretion when it decided not to change the childrens placement from one set of grandparents to the other set of grandparents and to terminate visitation with the maternal grandparents. The courts decisions could substantially impact the ultimate placement of the children. One set of grandparents is competing with the other—each hoping to prove that the other is less fit for service. The easy cases are those in which some miscreant behavior, lack of responsibility, or other manifest shortcoming leads to an obvious choice. This is not such a case.
Case law dealing with dependency issues often involves struggle between quarreling parents and stepparents, or parents and grandparents. In the instant case, we are well past time for consideration of the parents role. That task is complete. We are faced here with a rather unusual situation in which paternal and maternal grandparents, each of whom have had significant contact at various times with the affected children, are very contentious over visitation rights and generally disagreeable toward one another. Making the decision of the juvenile court—and, in turn, our court on appeal—particularly difficult is the fact that there are significant conflicting observations concerning the relationships between the children and each of their four grandparents, as well as questions raised about whether one set of grandparents may have been unfairly disfavored by the reviewing agency such that, under the applicable statutory scheme, the ultimate outcome may seem preordained.
Grandparents rights to court-ordered visitation with their grandchildren are purely statutory. [Citation.]" (In re Marriage of Harris (2004) 34 Cal.4th 210, 219; see Welf. & Inst. Code, § 361.2, subd. (h) [where the court has ordered removal of the child from parental custody, the court shall consider whether the family ties and best interest of the child will be served by granting visitation rights to the childs grandparents]; Welf. & Inst. Code, § 16507, subd. (a) [family reunification services shall include a plan for visitation of the child by his or her grandparents, where the visitation is in the best interests of the child and will serve to maintain and strengthen the family relationships of the child]; see also Fam. Code, §§ 3102, 3103, 3104.)
The circumstances—including current placement of the children—may be viewed as likely to result in adoption by the paternal grandparents. While the inane level of acrimony between the competing grandparents and the way the parties were evaluated is somewhat discomfiting, the juvenile court made a decision based upon the evidence and professional recommendation before it.
However, in consideration of the love and affection between the children and their maternal grandparents, my concern is that the discretion exercised in the instant case would lead to the virtually inevitable result that the children may never see their maternal grandparents again. It is because of the importance of averting such an eventuality that I favor the course taken in the opinion herein.
Given the acrimony between the grandparents, there is serious doubt that every reasonable effort was made to encourage meaningful participation in counseling and mediation (with the parties bearing the cost if services are not routinely available through the court) and to provide a clear message to the parties that in making the ultimate placement and adoption decisions, the fitness of the parties would be weighed in the context of their appreciation for the value of nurturing in the children a positive relationship with their grandparents.
The paternal grandparents have expressed some willingness to reach an accord with the maternal grandparents to obtain some appropriate level of visitation in the future. One way of ensuring such occurrence would be to inform the parties of the possibility of entering into a "Postadoption Contact Agreement," pursuant to Family Code section 8616.5, which expresses legislative findings that some adoptive children might benefit from contact with birth relatives and provides a statutory scheme for such agreements. "[T]he opportunity remains, at least before entry of a final adoption decree, for the parties to avail themselves of the provisions permitting a [postadoption contact agreement] and to make the agreement a part of the petition for adoption. If the parties were previously unaware of this law, that must no longer be true." (In re Zachary D. (1999) 70 Cal.App. 4th 1392, 1398.)
In re Zachary D., supra, 70 Cal.App.4th 1392, 1394-1398, cited to former Family Code section 8714.5, which dealt with "kinship adoption agreements." Effective January 2001, the Legislature amended the statute and substituted "postadoption contact agreement" for "kinship adoption agreement" throughout. (Stats. 2000, ch. 930, § 3.) In 2003, the Legislature renumbered the statute as Family Code section 8616.5. (Stats. 2003, ch. 251, § 8; see also In re Noreen G. (2010) 181 Cal.App.4th 1359, 1394 & fn. 18.)
In light of this courts opinion, it is my hope that in the exercise of its discretion, the juvenile court on remand will be able to facilitate an outcome—through a process of counseling and agreement between the grandparents for some meaningful level of visitation—that preserves the relationship between the children and their grandparents who express and demonstrate care and concern for them.
Poochigian, J.