Opinion
H044837
07-03-2018
In re T.H., a Person Coming Under the Juvenile Court Law. SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. T.S., Petitioner and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. DP002866)
I. INTRODUCTION
T.S. is the half-brother of T.H., the child at issue in this juvenile dependency case. T.S. appeals after the juvenile court summarily denied his Welfare and Institutions Code section 388 petition, in which he sought a court order reinstating his sibling visits with the child, after those visits were suspended by the social worker. For reasons that we will explain, we will reverse the juvenile court's order and remand this case with directions to reinstate sibling visits between T.S. and the child.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Initial Proceedings
This dependency case has been before this court previously. (See J.H. v. Superior Court (Oct. 13, 2015, H042562) [nonpub. opn.]; In re T.H. (May 5, 2016, H043056 & H043066 [nonpub. opn.]; J.H. v. Superior Court (March 14, 2017, H044118 [nonpub. opn.].) We have taken judicial notice of the records in the prior proceedings and briefly set forth the facts leading up to the present appeal. (Evid. Code, § 452, subd. (d)(1).)
This court granted a request for judicial notice of the records in three of the prior cases (Nos. H043056, H043066, and H044118), and on our own motion we take judicial notice of the records in case Nos. H042562 and H044033.
On December 30, 2013, the Santa Clara County Department of Family and Children's Services filed a second amended petition under section 300, subdivision (b) [failure to protect] alleging that the 16-month-old child came within the jurisdiction of the juvenile court. The child had been taken into protective custody following the mother's arrest for being under the influence of a controlled substance, felony possession of a controlled substance, and child endangerment. The child was living with the maternal grandmother in Aptos. The child's half-brother, T.S., was also living with the maternal grandmother, who later became his legal guardian.
In his opening brief, T.S. states that he was adopted by the maternal grandmother.
On March 5, 2014, the Santa Clara County Juvenile Court sustained the section 300 petition, ordered the child placed with the mother on family maintenance services, and ordered the case transferred to Santa Cruz County.
At the six-month review hearing, the Santa Cruz County Juvenile Court ordered family maintenance services to continue. At the 12-month review hearing, the juvenile court again ordered family maintenance services to continue.
On May 8, 2015, the Santa Cruz County Human Services Department (the Department) filed a section 387 petition. The child was detained and placed with a paternal aunt. After a contested hearing, the juvenile court sustained the section 387 petition, ordered the child removed, denied reunification services as to both the mother and the father, and set a section 366.26 permanency planning hearing. The juvenile court ordered the child's continued placement with the paternal aunt, who was willing to adopt the child.
In his opening brief, T.S. erroneously asserts that the child was "adoptively placed with the maternal aunt, who was Mother's identical twin." The record shows that it was the paternal aunt who was the child's prospective adoptive parent.
The mother filed a petition for extraordinary writ in this court, challenging the juvenile court's orders sustaining the Department's section 387 petition, denying reunification services, and setting the matter for a permanency planning hearing. On October 13, 2015, this court filed an opinion denying the mother's petition for extraordinary writ. (J.H. v. Superior Court, supra, H042562.)
The mother subsequently filed a section 388 petition, asking the juvenile court to set aside the permanency planning hearing and order reunification services. The juvenile court summarily denied the mother's section 388 petition.
A section 366.26 permanency planning hearing took place on December 16, 2015. The juvenile court found that the child was adoptable and that the mother had not met her burden of proof to show the beneficial parent-child exception or the sibling relationship exception applied. (See § 366.26, subds. (c)(1)(B)(i) & (c)(1)(B)(v).) The juvenile court then terminated parental rights and set a permanency review hearing.
The mother appealed following the permanency planning hearing. On May 5, 2016, this court filed an opinion affirming the juvenile court's orders. (In re T.H., supra, H043056 & H043066.)
At a hearing held on May 26, 2016, the juvenile court found that the permanent plan of adoption continued to be appropriate. The child, who was four years old, remained with the paternal aunt, her prospective adoptive mother. The child had been visiting with T.S. and the maternal grandmother on a monthly basis, and the juvenile court ordered continued monthly supervised visitation between the child and T.S. The juvenile court's order provided: "Visitation shall occur a minimum of one (1) time(s) a [m]onth, supervised. So long as the minimum level of court ordered visitation is offered, the social worker shall have the discretion to adjust the frequency and duration, as well as supervision of visits." (Italics added.)
The mother filed another section 388 petition on August 29, 2016, requesting the child be removed from her placement with the paternal aunt and be placed with the maternal grandmother. The maternal grandmother filed a section 388 petition the next day. Both petitions complained about the paternal aunt's treatment of the child. The juvenile court summarily denied the section 388 petitions.
The mother filed a notice of appeal from the juvenile court's orders denying the section 388 petitions (In re T.H., H044033), but her appointed appellate counsel filed a letter brief pursuant to In re Phoenix H. (2009) 47 Cal.4th 835 (Phoenix H.), indicating she could find no arguable issues on appeal. The mother did not submit a request to file a supplemental brief on her own behalf, and the maternal grandmother did not file a brief, so this court dismissed the appeal as abandoned. The mother also filed a petition for extraordinary writ, which this court denied in an opinion filed on March 14, 2017. (J.H. v. Superior Court, supra, H044118.)
B. Proceedings Related to the Current Appeal
In February 2017, the maternal grandmother filed a request for increased sibling visits between the child and T.S., which she wished to supervise. In her request, the maternal grandmother complained about canceled visits and about the child's health and educational progress. In April 2017, the paternal aunt and uncle filed a notice indicating they were "no longer able to adopt" the child.
This court granted the Department's motion to augment the record with the maternal grandmother's request for increased sibling visitation. The record on appeal does not indicate how the juvenile court ruled on this request.
On June 5, 2017, the mother filed a section 388 petition on behalf of her infant daughter, P.C. The mother sought "[t]o assert a relationship as a sibling" on behalf of P.C., and she requested sibling visitation between P.C. and the child. The mother asserted that the child had been visiting with T.S. once a month and that P.C. had been joining in the visits. The mother asserted that the child enjoyed spending time with P.C. and would ask for P.C. "when she is not there."
The juvenile court ordered a hearing but ultimately denied the mother's section 388 petition, finding that visitation between P.C. and the child would interfere with its order finding adoption was in the child's best interests. The mother filed a notice of appeal from that order on behalf of P.C., and this court appointed counsel to represent P.C. in this court. Appointed appellate counsel filed a Phoenix H. letter brief, and no supplemental brief was filed on behalf of P.C., so this court dismissed the appeal as abandoned.
Meanwhile, on July 14, 2017, T.S. filed a section 388 petition. He checked the boxes next to "I am asking the court to change an order," and "I am asking the court to recognize my relationship with my brother or sister." T.S. indicated that the order he wanted to be changed was the May 26, 2016 order for monthly supervised sibling visitation, which gave the social worker discretion to adjust the frequency, duration, and supervision of the visits "[s]o long as the minimum level of court ordered visitation is offered." T.S. asserted that since that order was made, the child "thought that my aunt was my mom" and the social worker would not let the child see him. T.S. asked for an order reinstating supervised visits between him and the child with "no other grown up to mess it up." T.S. asserted, "I love [the child] and she knows happiness when she sees me."
The maternal grandmother also filed a section 388 petition asking the juvenile court to reinstate visits between T.S. and the child. Some of her petition was identical to T.S.'s petition. She asserted that the maternal aunt—the identical twin of the mother—had attended a visit and the child "mistook aunt for her mother and called her 'mom.' " The social worker had refused to schedule visits after that incident. The maternal grandmother asked the juvenile court to order monthly visits between the child and T.S. only, with "no other adults."
On July 20, 2017, the juvenile court summarily denied T.S.'s petition, finding that the proposed order did not promote the child's best interest and that T.S. was a minor who needed to be represented by a guardian ad litem. The juvenile court further noted that T.S.'s petition was "duplicative" of the petition filed by the maternal grandmother. The juvenile court also summarily denied the maternal grandmother's petition, finding that the proposed order did not promote the child's best interest.
T.S. filed a notice of appeal through the maternal grandmother. This court appointed counsel to represent T.S. in this court.
On our own motion, we take judicial notice of documents in the juvenile court file.
On July 25, 2017, the Department filed a section 387 petition, seeking to change the child's placement from the paternal aunt's home to the child's former foster family. The juvenile court ordered the child's removal.
In a status review report filed on October 5, 2017, the social worker confirmed that the child no longer had visits with T.S. The social worker explained, "While this is unfortunate, it was unavoidable due to actions of the family during a visit on June 30th 2017." The maternal grandmother had scheduled a sibling visit between the child and T.S. and had allowed the mother's twin sister to bring P.C., the mother's new baby. The social worker discovered that the mother was posing as her twin sister "in order to be able to have contact with [the child]." The social worker ended the visit "immediately" and informed the "family that no future visits would be scheduled." A status review report filed on March 28, 2018 also noted that no sibling visitation had been permitted.
III. DISCUSSION
T.S. contends the juvenile court abused its discretion by denying his section 388 petition for reinstatement of monthly sibling visitation with the child. (See In re A.R. (2015) 235 Cal.App.4th 1102, 1116-1117 [abuse of discretion standard applies to denial of a section 388 petition].)
A. Propriety of Petition/Failure to Appoint Guardian Ad Litem
The Department contends that T.S.'s petition "was not properly before the juvenile court" because it was not filed through his guardian (the maternal grandmother) or a guardian ad litem. The Department points out that a minor who is a party to an action must appear in that action through either a guardian or a guardian ad litem. (Code Civ. Proc., § 372, subd. (a)(1).) The Department also asserts that because T.S. was not the subject of these dependency proceedings, he was not a party to the proceedings and thus he was not entitled to appointment of a guardian ad litem or counsel.
T.S. points out that he was entitled to seek sibling visitation pursuant to section 388, subdivision (b)(1), and he contends the juvenile court should have appointed a guardian ad litem for him so that he could present a proper petition.
Section 388, subdivision (b)(1) provides: "Any person, including a child or a nonminor dependent who is a dependent of the juvenile court, may petition the court to assert a relationship as a sibling related by blood, adoption, or affinity through a common legal or biological parent to a child who is, or is the subject of a petition for adjudication as, a dependent of the juvenile court, and may request visitation with the dependent child, placement with or near the dependent child, or consideration when determining or implementing a case plan or permanent plan for the dependent child or make any other request for an order which may be shown to be in the best interest of the dependent child." --------
T.S. relies on section 317, subdivision (c)(1), which provides for appointment of counsel (not a guardian ad litem) for an unrepresented child or nonminor dependent. The Department contends that section 317, subdivision (c)(1) applies only to an unrepresented child or nonminor dependent who is a party to the action. (See also Code Civ. Proc., § 373, subd. (c) [on its own motion, the court may appoint a guardian ad litem for a minor who is a party to the action].)
Although as a minor, T.S. was required to bring his section 388 petition through a guardian or guardian ad litem, in this case he essentially did so, in that he and his legal guardian—the maternal grandmother—filed petitions together. As the juvenile court found, the petitions were "duplicative" of one another. On this record, it would "elevate form over substance" to find that T.S.'s petition was improper and dismiss his appeal. (See Law Offices of Marc Grossman v. Victor Elementary School Dist. (2015) 238 Cal.App.4th 1010, 1014 [trial court erred in denying attorney fees to law firm that filed petition in its own name instead of in the name of its client].)
We proceed to consider whether the juvenile court abused its discretion by denying T.S.'s section 388 petition.
B. Section 388 Petition
"The essence of a section 388 petition is the petitioner's assertion that she or he can demonstrate, by a preponderance of the evidence, that new evidence or a change of circumstances exists warranting a finding that the best interests of the minor child will be served if a previous order of the court is changed, modified or set aside." (In re Marcos G. (2010) 182 Cal.App.4th 369, 382.)
In this case, T.S. was not actually seeking to change, modify, or set aside a previous order of the court—he was seeking to enforce the May 26, 2016 order for monthly supervised sibling visitation. That order gave the social worker discretion to adjust the frequency, duration, and supervision of the visits "[s]o long as the minimum level of court ordered visitation is offered." This order did not give the Department discretion to permanently suspend sibling visitation, yet the Department appears to have done just that. If the Department believed that suspension of sibling visitation was in the child's best interest because sibling visitation was detrimental to the child (see § 16002, subd. (b)), the Department should have filed its own section 388 petition requesting an order suspending the monthly required sibling visitation. (See In re Jennifer G. (1990) 221 Cal.App.3d 752, 757 (Jennifer G.) [administrative agency may "petition the court" to terminate a visitation order].)
As T.S. argues, the Department "acted in excess of its authority when it suspended visitation" between the child and T.S. The juvenile court alone has "the power to decide whether any visitation occurs" (In re S.H. (2003) 111 Cal.App.4th 310, 317 (S.H.)) and the juvenile court is the entity that "must define the rights of the parties to visitation" (Jennifer G., supra, 221 Cal.App.3d at p. 757). The juvenile court can delegate to the Department "the ministerial tasks of overseeing the right as defined by the court," which include "[s]uch matters as time, place and manner of visitation." (Ibid.) The juvenile court's May 26, 2016 order followed these principles. That order provided: "Visitation shall occur a minimum of one (1) time(s) a [m]onth, supervised. So long as the minimum level of court ordered visitation is offered, the social worker shall have the discretion to adjust the frequency and duration, as well as supervision of visits." Thus, the juvenile court ordered "a minimum number of visits per month" and specified some conditions of those visits (i.e., that they were to be supervised) "while allowing the Department to organize other details of the visitation." (S.H., supra, 111 Cal.App.4th at p. 319.) The order did not, however, give the Department the authority to suspend the minimum monthly sibling visits.
The dependency scheme "contemplates [that] sibling contact will be an ongoing issue, subject to periodic review throughout the dependency proceedings." (In re Valerie A. (2007) 152 Cal.App.4th 987, 1004 (Valerie A.); see § 16002.) "[S]ibling contact should remain the subject of [the juvenile court's] concern" following termination of parental rights and prior to the child's adoption. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 427.) "The Agency may not suspend sibling visitation unless the court determines by clear and convincing evidence sibling interaction would be detrimental to either sibling. [Citations.]" (Valerie A., supra, at p. 1004.)
Because the Department did not have the authority to suspend sibling visitation between the child and T.S., and the Department did not file a section 388 petition to suspend sibling visitation, we reverse the juvenile court's order denying T.S.'s section 388 petition and remand the matter with directions to reinstate sibling visitation.
IV. DISPOSITION
The July 20, 2017 order denying T.S.'s Welfare and Institutions Code section 388 petition is reversed. The trial court is directed to reinstate sibling visitation between T.S. and the child.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
GREENWOOD, P.J. /s/_________
GROVER, J.